Do Admiral’s words really carry weight?

Malcolm Latarche
Malcolm Latarche

07 March 2016


Last week at a conference in Long Beach, USCG Rear Adm. Paul Thomas created waves when he said that the IMO guidelines on container weighing had no legal standing and could not be imposed on US shippers. He qualified that by saying that the rule – SOLAS VI Reg 2 – was mandatory but the guidelines were not part of the regulation. The Rear Admiral went on to say that ship operators need to work with shippers towards finding ways to meet the obligation. The words were taken by shippers in the US to mean that they would not be required to comply and would therefore continue their current practices. They should be wary of such an action because the same USCG official spoke weeks earlier at a Federal Maritime Commission (FMC) listening session. At the conclusion of the FMC meeting, he stated the following USCG positions and observations: “Delayed implementation is not an option. SOLAS is an international convention ratified by the US and most major flag states that applies to vessels, not ports or shippers. Most vessels loading in the US are foreign-flag ships from IMO signatory countries. Those countries will implement the VGM requirement as to their vessels, and the US has no say in that. USCG will not impose fines under SOLAS with respect to inaccurate weight certificates because USCG does not believe it has any enforcement authority to do so. USCG does not plan to adopt or publish any allowable error variance. Regarding enforcement, USCG observes that a container without a compliant VGM certificate will be subject to a hold order and can't be loaded, but there will be no fines. Once the container is weighed or the shipper provides a certificate, the container can be loaded”. The ultimate message from USCG is that the shipping industry must find business solutions. USCG is not convinced it needs to or has any jurisdiction to take any steps, but will continue to listen and facilitate such solutions if possible. The rear Admiral is of course correct in saying that the Guidelines have no legal force although where they have been accepted by flag states and flag state rules apply them to ships then most legal minds would say there is a legal obligation on the ship to apply them in their entirety. However, the rule in SOLAS is quite clear with regards to the shippers’ obligations and while flag states cannot enforce them directly against foreign shippers, any ship which ignores them will be in breach of SOLAS regulations and would not be permitted to sail under both flag state and port state obligations. The absence of a VGM certificate could, just as the absence of valid SOLAS certificates does, make the ship legally unseaworthy. One can imagine that in the US where severe penalties are imposed in ‘magic pipe’ incidents only on the grounds that official documents (oil record book) presented are not accurate and are falsified, similar sanctions could easily be imposed upon ships that flout the VGM regulations. Even so Rear Adm. Paul Thomas’ assertion to the FMC that “containers without certificates will be subject to a hold order” should be sufficient to focus the minds of shippers who should begin to find ways to meet the requirements in time rather than arguing over minor details.