Transcript Owners’ & Charterers’ Liability for Oil Pollution

NEW U.S. SECURITY
PROGRAMS AFTER
SEPTEMBER 11, 2001
FREEHILL HOGAN & MAHAR, LLP
80 PINE STREET
NEW YORK, NY 10005-1759
TEL: 212 425-1900
FAX: 212 425 1901
Linburg - Before
Linburg - After
The mission of the United States Customs
and Border Protection Service:
We are the guardian’s of our Nation’s
borders – America’s frontline. We serve and
protect the American Public with integrity,
innovation and pride. We enforce the laws of the
United States, safeguard the revenue, and foster
lawful international trade and travel.
After 9/11 CBP developed new tools to implement
its mission in the face of terrorist threats:
Container Security Initiative - “CSI”
24 Hour Manifest Rule
Customs-Trade Partnership Against Terrorism –
“C-TPAT”
Advance Passenger Information System – “APIS”
Related Actions:
Elimination of Crew List Visas
Marine Safety Transportation Act
Container Security Initiative - “CSI”
16 Million Containers move through U.S. ports annually
40% of all containers in the world pass through U.S. ports annually
$475 Billion in commerce
70% of U.S. bound containers originate in 20 foreign ports
Only 4%-7% of incoming containers are inspected by CBP
Post- 9/11 CBP’s concerns expanded beyond narcotics and contraband to
terrorism.
The challenge: how to monitor container traffic
Container Security Initiative
Four elements:
Using automated information to identify and target high-risk containers
Pre-screening those containers identified as high risk before they arrive at
U.S. ports
Using detection technology to quickly pre-screen high-risk containers
Using advance, more tamper-resistant containers
CBP has entered into bilateral CSI agreements with 41 ports worldwide
Those foreign ports host U.S. CBP agents to help identify and screen highrisk containers before loading.
What information does CBP review to pre-screen containers?
24 Hour Manifest Rule
Pre- 9/11 – cargo manifests had to be filed 48 hours before vessels arrived at U.S.
ports
Post- 9/11 – cargo manifests must be filed 24 hours before cargo is loaded on board
a U.S. bound vessel at a foreign port (containerized cargo and break-bulk cargo)
The cargo manifest must be filed electronically with CBP via the Automated Manifest
System (“AMS”)
Bulk cargoes – cargo manifest must be filed 24 hours before vessel arrives in U.S.
No vague cargo descriptions such as “said to contain” or “freight all kinds”
Importers can request confidentiality from CBP for themselves and their shippers
Any violation of 24 Hour Rule exposes carrier to penalties - $5,000 for first offense
and $10,000 for second offense. Plus, CBP may prevent unloading of cargo.
International Carrier Bond
Anyone who transmits cargo declarations to CBP must file an International
Carrier Bond
CBP Port Directors have discretion to set amount. Minimum is usually $50,000
Who must file the International Carrier Bond – Owners or Charterers?
Who must file the Cargo Declaration – Owners or Charterers?
CBP will not decide – but will ultimately hold Master and vessel liable for failure
to comply
Negotiate in charter parties:
– who is responsible to comply with CBP filing regulations
– who is will be liable for cargo not loaded due to a CBP Do Not Load order
– who will bear costs of delay and extra expenses if CBP will not permit
discharge
– who files the International Carrier Bond
Customs-Trade Partnership Against
Terrorism – “C-TPAT”
Voluntary program
Importers, carriers and terminals comply with U.S. guidelines for
supply-chain security programs
Participants document their supply chain security measures, prescreening of employees, etc.
Participating companies who qualify will be designated “low risk”
Benefits:
– fewer CBP inspections
– faster CBP inspections
– potential eligibility for CBP self-audit program, where importer,
not CBP, audits its own security measures
Advance Passenger Information
System – “APIS”
Requires reporting of crew and passenger information in advance of
vessel’s arrival in U.S.
– voyage of more than 96 hours – submit 96 hours before entering
port
– voyage between 24 hours and 96 hours – submit 24 hours
before entering port
– voyage less than 24 hours – submit before departing foreign port
Failure to comply or filing false data results in penalties
– first violation - $5,000
– second violation - $10,000
No action will be taken against carrier’s bond until appeals
exhausted
Maritime Transportation Security
Act (“MTSA”)
Requires Vessel Security Plans
Similar to ISPS (International Ship and Port Facility
Security Code) vessel security plans
USCG accepts compliance with ISPS as compliance
with MTSA
33 CFR 104 requires Vessel Security Plans that include:
– designation of a Vessel Security Officer
– training crew to respond to security threats
– annual security drills – conducted in conjunction with USCG,
industry group, port authority or by owner/operators on their own
Elimination of Crew List Visas
U.S. State Department established Crew List Visas, permitting one visa for
entire crew
Regulation rescinded in July, 2004, resulting in Requirement of individual
visas for each crew member
If crewmembers do not have visas, they will be denied entry and vessel
may be required to hire security guards
Who is responsible for costs of security guards and other extra expenses Owners or Charterers?
Immigration authorities and USCG will not decide
- Owners and Charterers need to negotiate charter party clauses clearly
stating who is liable form extra expenses
- BIMCO ISPS clause does not deal with problem
-
CONCLUSION
Security measures and requirements will only
increase, not decrease
Monitor developments and plan well in advance
to comply
Where responsibility for compliance as between
Owners and Charterers is unclear, negotiate
clear charter party clauses allocating
responsibility