In response to complaints from vessel operators, the U.S. Coast Guard is attempting to clarify rules for what constitutes a reportable casualty and when mariners must complete a Form CG-2692.
In January, the Coast Guard put out for public comment — via a notice in the Federal Register — a draft Navigation and Vessel Inspection Circular (NVIC) that it had been circulating since 2013. The NVIC is designed to provide specific guidance on circumstances under which a Form CG-2692 must be used.
The decision to formalize guidance has two goals: alleviate confusion that surrounds the matter and ensure “national consistency” in how the regulation is implemented across the U.S., said Coast Guard spokesman Cmdr. Randy Waddington.
Waddington agreed that the second goal, by inference, means the NVIC would serve a similar purpose for Coast Guard officers tasked with implementing the regulation.
Capt. Alan Bernstein, former Passenger Vessel Association (PVA) president, expressed concern that the NVIC will not go far enough to fix the current problem without the extensive involvement of operators. Bernstein is owner of excursion boat operator BB Riverboats, on the Ohio River in Newport, Ky.
Bernstein believes only a working group involving both industry and the Coast Guard can address the “root cause” of the confusion, which he described as “undefined reporting requirements and inconsistent management by the USCG in the field.”
Regulation 46 CFR §4.05 requires the owner, operator or person in charge of a vessel involved in a casualty to report it within five days if several conditions apply. These include, for example, injuries that require “more than first aid,” injuries that incapacitate for “more than 72 hours,” or damage to property “greater than $25,000.”
One challenge is that the operator’s reporting obligations may not be immediately evident. A person who has merely fainted might look very much like one with a heart attack. One may not foresee how many days an injured person could miss work. A naked-eye look at a dented hull may not indicate if the damage exceeds $25,000.
If a Coast Guard official comes aboard after a casualty, he or she may direct the operator to file the form. Precedents seem to vary from jurisdiction to jurisdiction. In general, however, consequences of not filing CG-2692 could be steep: potentially a major license suspension-and-revocation action for the mariner and/or civil penalties of up to $100,000 and 10 years in prison for any responsible party.
The confusion can feed into labor-management acrimony. Boat owners, often reasonably, want nothing to do with CG-2692, especially in minor incidents, because the matter immediately becomes public record and can have adverse public-image implications.
Miami attorney Ross Toyne, a seafarer advocate and veteran crew injury litigator, said crewmembers may be under employer pressure not to file the form, because every owner wants to show the world their ships are safe and responsible.
“So an owner on the rack for non-filing CG-2692 is, in effect, blaming the mariner for not filing, but at the same time telling the crewmember, ‘if you file a form for something that happened on your watch, you’re fired,’” Toyne said.
Bernstein said scrapping CG-2692 is not an answer, because “gathering statistics is always good.” He wants to see the issue become “less inflammatory.” One way could be to make CG-2692 data classified, so that at least the media does not have access to all of it. Further, he wants the Coast Guard to “change its philosophy” and first identify “what data it wants to capture,” rather than the prevailing approach of “capture everything and make it public, then figure out what to do.”
The PVA credited the Coast Guard for showing a willingness to work with the industry. But PVA regulatory affairs consultant Peter Lauridsen added: “We need to have consistency from port to port if the current ineffective system is to be improved.
“Much more needs to be done beyond the scope of the NVIC, such as clarifying loss of propulsion and medical treatment beyond first aid. PVA members are responsibly complying with the regulation, but we believe the time has come to correct long-standing deficiencies in the regime.”
The comment period ended in April. Waddington refused to be pinned down on when the Coast Guard might issue a final NVIC. “Our hope is to have a document that achieves both our goals, hopefully within a short time frame,” he said.
