By Scott Jenkins and Jeanne Amy, Jones Walker LLP
With an uptick in coronavirus cases and the national emergency declared due to the spread of,COVID-19, the United States Coast Guard (USCG) has issued a number of Marine Safety Information Bulletins (MSIB) in response, instructing vessel owners, terminal operators, and other maritime facility operators to heed specific warnings and comply with all regulatory authorities during this pandemic.
All vessels calling on US ports are now required to report crew and passenger illnesses to the Captain of the Port (COTP) and the Centers for Disease Control (CDC), immediately, or 15 days prior to arriving in a US port.
The USCG has deemed the illness of a person onboard a vessel that may adversely affect the safety of the vessel or port facility a “hazardous condition” pursuant to 33 CFR 160.216. Additional guidance and reporting requirements can be found here: MSIB Number 02-20 (Change 3) issued on March 16, 2020.
The USCG issued MSIB Number 06-20 on Vessel Reporting Requirements for Illness or Death, which sets forth the definition for an ill person onboard a vessel, including a fever of 100.4⁰ F or greater that has persisted for more than 48 hours. Masters who fail to report illnesses on board a vessel are subject to Coast Guard enforcement action, including civil penalties, vessel detentions, and criminal liability. In short, if a crewmember exhibits symptoms consistent with COVID-19 or other flu like illnesses, it must be reported to the COTP.
Commercial vessels that have been in the affected countries, including Iran, China, European states within the Schengen Area, and the United Kingdom and Ireland, within the last 14 days, with no sick crewmembers, will be permitted to enter the US and conduct normal operations, with restrictions. Crewmembers will be required to remain onboard the vessel except to conduct specific activities directly related to vessel cargo or provisioning operations. Crewmembers with a transit and/or crewmember visa may be permitted to disembark provided they are cleared by Customs and Border Protection (CBP), and, if applicable, CDC. All persons that have been in or through an affected country may be subject to CDC screening prior to disembarking in a US port.
All industry stakeholders should review and be familiar with Section 5310 – Procedures for Vessel Quarantine and Isolation, and section 5320 – Procedures for Security Segregation of Vessels in their Area Maritime Security Plan. The CDC has issued specific guidance for quarantine recommendations on ships.
Maritime facility operators are not permitted to impede a seafarer from embarkation/disembarkation. That authority rests solely with CBP, Coast Guard, or the CDC. Facility operators should contact local CBP, Coast Guard, or the CDC to request specific restrictions on crewmembers’ access. The USCG issued specific guidance to port and facility operators in MSIB Number 07-20 to ensure the safety and security of workers, ports, and facilities.
The USCG clarified that certain maritime workers are considered Essential Critical Infrastructure Workers pursuant to the Cybersecurity and Infrastructure Security Agency (CISA) in MSIB Number 11-20. In a non-exhaustive list, the CISA/MSIB guidance deems the following to be essential personnel, and therefore provide a critical function to maintain public health and safety, and economic and national security during the pandemic: merchant mariners, pilots, longshoremen, representatives of seafarers’ labor organizations, marine consultants, naval architects, shipyard workers, Classification Society surveyors and auditors, vessel owners and operators, bridge operators, lock and dam operators, commercial barge fleeting personnel, crane operators, cargo operators, dredging operators, and federal and state agency personnel. Other related industries are also Essential Critical Infrastructure Workers, including transportation workers, petroleum workers, workers who support hazardous materials response and cleanup, critical manufacturing workers throughout the supply chain, and workers who provide medical services meeting shipboard medical needs.
MSIB Number 08-20, Change 1 provides guidance related to mariner credential endorsements and medical certificates. Specifically, the MSIB states that Regional Examination Centers and Monitoring Units will be closed until further notice. All Merchant Mariner Credentials and Medical Certificates that are set to expire between March 1, 2020, and July 31, 2020, are extended until October 31, 2020. Mariners should carry the expired credential with a copy of the MSIB. Similarly, Standards of Training, Certification and Watchkeeping (STCW) Endorsements and STCW Medical Certificates that expire between March 1, 2020, and July 31, 2020, are extended until October 31, 2020. Mariners should continue to carry the expired credential with a copy of the MSIB. Additionally, all Additional Information letters, Qualified Assessor letters, Designated Examiner letters, Proctor approval letters, Approval to Test letters, and mariner training course completion certificates that expire in that same timeframe are extended until October 31, 2020. Pilot’s annual physical examination requirements will not be enforced during the national emergency. Finally, course and program approvals that expire between January 1, 2020, and July 31, 2020, are extended for six months from the date of expiration.
The USCG also issued guidance on vessel inspections, exams, and documentation in MSIB Number 09-20. Prior to boarding a vessel, inspectors and port state control officers will verify with the vessel that there are no ill crewmembers or passengers onboard. Certain allowances may
be made on a case-by-case basis for vessel inspections and exams. The aim of the USCG is to maintain the uninterrupted flow of commerce.
The USCG provided guidance on compliance with federal drug testing requirements during this national emergency in MSIB Number 10-20. For random testing, the USCG encourages operators to use their own office employees or mariners to administer drug tests to minimize contact among mariners and third party collectors. The USCG will give consideration to these efforts when evaluating whether to initiate an enforcement action against an employer if they fail to meet the requirement of 50% random test rate for covered employees in 2020. If an employer falls short of the requirement, they should provide an explanation to the USCG. For pre-employment screenings, employers may request to waive drug tests for prospective employees if that applicant has been covered by a random drug test program for at least 60 days within the last year of the intended hiring date. All post-casualty testing for marine incidents and reasonable cause testing of employees remain in place.
Guidance from local and federal authorities is changing daily in response to COVID-19, so all operators should continue to check with state and federal authorities in their area and throughout this national emergency.
About the authors
R. Scott Jenkins is a partner in and leader of the Jones Walker Maritime Practice Group in the firm’s New Orleans office. He advises clients on a broad range of maritime transactions, compliance, and litigation.
Jeanne L. Amy is an associate in Jones Walker’s Maritime Practice Group in the firm’s New Orleans office. She focuses on maritime litigation, regulatory, and transactional matters.
***Note this article is for general information purposes and current as of the date of the publication. This article is not a full analysis of the matters presented and may not be relied upon as legal advice.