The United States, to protect U.S. waters from oil spills, requires oil tankers and other ships with dangerous liquids to be inspected and obtain a Certificate of Compliance. Sounds like smart policy. But the unusual nature of the Great Lakes throws a wrench into this regulatory system. If an oil tanker bound from Venezuela to Nova Scotia entered U.S. territorial waters off Miami, and then remained within sight of land up the entire Eastern seaboard as far as the Northeastern tip of Maine, it would not need a Certificate of Compliance for any portion of its multi-day voyage. However, if that same tanker then departed Halifax and proceeded to Toronto, even a momentary diversion onto the U.S. side of Lake Ontario would trigger the Certificate of Compliance requirement. CUSLI-Nexus staff writer Graham Lanz explores this regulatory gap and its ramifications on U.S. maritime and environmental policies. And, most importantly, he poses a common-sense solution to solve the problem.
If safety regulations are written in blood, as has often been quipped, then a good portion of U.S. environmental law has been written in oil. From the Exxon-Valdez to the BP/Deepwater Horizon disaster, slicks of oil spoiling pristine wilderness areas and smothering marine life strike at the very heart of our collective desire to be better stewards of the environment. Thus, the U.S. has adopted special regulations for vessels that carry oil and other dangerous liquid substances in bulk.[i] To ensure that foreign-flagged oil tankers meet these regulations, the U.S. Coast Guard inspects ships and, when satisfied that the ship is safe, issues (for a fee) a Certificate of Compliance, valid for one year. Oil tankers must possess a Certificate of Compliance in order to “operate on the navigable waters of the United States.”[ii] Thus, foreign flagged vessels navigating the Canadian side of the Great Lakes face noncompliance (and a $25,000 civil penalty) if they stray into U.S. waters without the required certificate.[iii] This is inconsistent with the ideal of freedom of navigation and creates enforcement challenges for the U.S. Coast Guard. This posting examines this problem, whether the requirements for foreign-flagged oil tankers should apply on the Great Lakes for vessels bound for Canadian ports, and proposes some possible solutions to this regulatory inconsistency.
The Certificate of Compliance and the Innocent Passage Exception
The statute requiring a Certificate of Compliance includes an exception for tankers that are “on innocent passage on the navigable waters of the United States.”[iv] This exception is consistent with some of the oldest principles of customary international law. Namely, ships that transit another nation’s territorial sea (generally 12 nautical miles from shore, although some coastal states claim more) en route from the high seas or another state’s waters, bound to the high seas or another state’s waters are to be granted the right of innocent passage.[v] That is, provided the vessel is acting innocently (e.g. not breaching the peace, not actively fishing in violation of fisheries law, not marauding as pirates) the coastal state is expected to leave it alone and allow it to pass through unmolested. This promotes efficiency and safety, allowing vessels to plot the shortest course from Port A to Port B and encouraging them to stay within reach of land-based rescue in the event of emergency, all without fear of being hassled by coastal state authorities. Particularly as the international patchwork of regulatory regimes has become more complex, innocent passage has become more necessary to the shipping industry. If it were not for its innocent passage exception, the requirement for a Certificate of Compliance would essentially function as a toll for use of the U.S. territorial sea for oil tankers not intending to call on a U.S. port or conduct oil transfers in U.S. waters.
Yet innocent passage is not recognized in a nation’s internal waters.[vi] Therein, a state is free to exclude vessels and exercise a much greater degree of authority over foreign vessels. Internal waters are:
wholly or largely surrounded by a state’s land territory as well as sea waters on the landward side of the baseline of the territorial sea or of the archipelagic waters.1 "Internal waters" include waters of lakes, rivers, and bays that are on the landward side of the baseline of the territorial sea or of archipelagic waters. For rivers, this baseline is a straight line across the mouth of the river between points on the low-tide line of its banks.[vii]Nations are permitted to assert exclusive jurisdiction over their internal waters.
The Great Lakes: A Legally Distinct, Bi-National Group of Internal Waters
The Great Lakes of North America are an exceptionally unusual body of water: They are bi-national internal waters.[viii] The Boundary Waters Treaty of 1909 established that each nation intended to exert full authority over the waters on it side of the international border, while still maintaining freedom of navigation across the Great Lakes collectively (including Lake Michigan, which is the only Great Lake exclusively within the United States).[ix] The alternative would have been for each nation to assert its 12 mile territorial sea, with “high seas” in the waters between on those portions of the lakes greater than 24 miles wide. This unappealing option would have created a number of unconnected, nearly lawless frontiers of varying sizes between two civilized allies, opening the door for unscrupulous vessels of third party nations to thumb their noses at the U.S. and Canada nearly within sight of both shores.
A ship traversing the Great Lakes will typically cross the Canada-U.S. border dozens of times. Thus, vessels entering the Great Lakes from the St. Lawrence Seaway are merely a slight rudder angle change from switching which nation’s exclusive jurisdiction they are under. It would be as if a ship was instantaneously teleported from a mooring in Rotterdam’s enclosed harbor to a berth in Mumbai, without the benefit of “easing into” a possibly different regulatory environment after crossing the high seas. Thankfully (both for ships and shipping regulators) the regulations enforced by the U.S. Coast Guard and Transport Canada are highly congruent. However, the U.S. requirement for the Certificate of Compliance is one significant difference.
Why The Liquid Bulk Dangerous Cargoes Regulatory Gap Matters
If an oil tanker bound from Venezuela to Nova Scotia entered U.S. territorial waters off Miami, and then remained within sight of land up the entire Eastern seaboard as far as the Northeastern tip of Maine, it would not need a Certificate of Compliance for any portion of its multi-day voyage. However, if that same tanker then departed Halifax and proceeded to Toronto, even a momentary diversion onto the U.S. side of Lake Ontario would trigger the Certificate of Compliance requirement.[x] In both instances the vessels are bound from one foreign (non-U.S.) port to another. In neither instance is the vessel calling on a U.S. port or conducting oil transfer operations while in U.S. waters. During one leg of the voyage the tanker just happens to be passing (“innocently,” one might even say) through U.S. internal waters.
On its face, this seems unjust and inefficient. It also seems to contravene the spirit of free navigation embodied in the Boundary Waters Treaty. Further, it presents an enforcement burden for the U.S. Coast Guard, which will not have the opportunity to board this vessel in a U.S. port to examine whether it possesses a valid Certificate of Compliance, but is still expected to enforce the law and protect the marine environment.[xi]
Solutions to the Regulatory Gap
Some common sense solutions are available. The simplest, cheapest fix would be to amend the text of 46 U.S.C. § 3702 (e) to reflect the spirit of the Boundary Waters Treaty by adding to the innocent passage exception “or vessels navigating U.S. internal waters of the Great Lakes solely for the purpose of calling on Canadian ports.” However, this approach of broadening an exception would create an apparent acceptance of risk to the environment that may be politically unappealing to the constituencies who rely on the Great Lakes for fishing, drinking water, and recreation.
A better solution would be to issue Certificates of Compliance to all oil tankers entering the Great Lakes during a regulatory inspection they are already required to undergo, such as their joint U.S./Canadian ballast water examination,[xii] or the St. Lawrence Seaway Development Corporation’s enhanced seaway inspection.[xiii] This latter solution would require some further coordination between the U.S. Coast Guard and its Transport Canada and St. Lawrence Seaway Development Corporation partners in order to facilitate the presence of a qualified U.S. Coast Guard marine inspector, as well as submission of an application and payment of a fee by the ship’s management.[xiv] This approach would require only a modest investment and would be consistent with previous proposals that the U.S. Coast Guard establish a permanent presence in Montreal to facilitate this sort of pre-Great Lakes inspection activity at a choke point in the system where ships are already stopped.[xv] Canadian tankers that navigate solely on the Great Lakes could be examined annually and given a Certificate of Compliance, much in the same manner that the U.S. Coast Guard annually examines Canadian bulk cargo vessels on the Great Lakes.
Why Potential Great Lakes Oil Drilling Makes Solving the Compliance Certificate Regulatory Gap Not Merely Abstract Legal Untidiness, But a Significant Regulatory Hurdle
One potential development that might alter the landscape is the renewed interest in oil drilling on the Great Lakes.[xvi] While the BP/Deepwater Horizon catastrophe has certainly dampened enthusiasm for new underwater drilling, powerful energy lobbies have had recent success in tapping into the vast oil and natural gas deposits under the Great Lakes region from land-based wells, and Ontario continues to permit operation of extraction wells in their provincial waters.[xvii] Facing rising energy prices and continued struggles to replace their historical industrial base, the states and provinces of the Great Lakes may find the allure of underwater oil and gas tempting enough to reverse their previous stance against drilling beneath the world’s largest source of fresh surface water. That would certainly draw more tankers (and attention) to the Great Lakes.
If there is any doubt a tanker could be involved in a disaster on the Great Lakes, we need look no further back than September 16, 1990 (more recent than the Exxon-Valdez) when the oil tanker Jupiter exploded while unloading gasoline in the Saginaw River.[xviii] Due to the cargo’s high flammability, the damage to the marine environment turned out to be minimal, but the episode illustrates the need for regulatory agencies on both sides of the Great Lakes to be vigilant regarding tanker safety. An important pre-requisite to effective oversight in any regulatory context is absolute clarity about what the rules are. Clarifying the applicability of the Certificate of Compliance requirements for vessels calling on Canadian Great Lakes ports is a necessary step. If the requirement is determined to apply, as it appears it should, the U.S. Coast Guard must work with its partners in Canada and the shipping industry to ensure compliance with it. Conducting a Certificate of Compliance exam in conjunction with other inspection activities, either in Montreal or in the St. Lawrence Seaway, seems to be the optimal solution.
[i] Generally 46 U.S.C. § 3701 et seq.
[ii] 46 U.S.C. § 3711 (a)
[iii] 46 U.S.C. § 3718 (a) (1)
[iv] 46 U.S.C. § 3702 (e)
[v] Convention on the Territorial
Sea and the Contiguous Zone, Apr. 29, 1958, art. 14, 15 U.S.T. 1606.
[vi] U.S. v. Louisiana, 470 U.S. 93,
113 (1985). Another regulation enforced
by the U.S. Coast Guard (33 C.F.R. § 151.2020) explicitly defines innocent
passage as excluding vessels “bound for, entering or departing a U.S. port, or
navigating the internal waters of the U.S.”
[vii] 44B Am. Jur. 2d International Law § 82
[viii] Id. Most of the conventions of the International Maritime
Organization (IMO), such as the Safety of Life at Sea Convention (SOLAS),
contain exemptions for ships that navigate solely on the Great Lakes,
reflecting its unique nature.
[ix] Boundary Waters Treaty, Jan. 11,
1909, U.S.- Can. Available at http://www.ijc.org/rel/agree/water.html#text
[x] A recent search of a
commercially available ship tracking site (http://ais.boatnerd.com/) revealed at least five tankers
navigating on the Great Lakes, only one of which was on the U.S. side of the
border. Search conducted on September 26, 2012.
[xi] Database inquiries and tracking
technologies can establish these violations with relative ease, but before
enforcement action can be taken (if desirable) the vessel can already have
“escaped” back into Canadian internal waters.
[xii] See
http://www.uscgnews.com/external/content/document/4007/1444375/1/Document.pdf
[xiii] See 33 C.F.R. § 401.
[xiv] Shipping companies might chafe at
paying a fee they have not had to pay in the past, particularly since this
approach does not remedy the apparent injustice of there being no innocent
passage on the Great Lakes. A compromise might be a reduced fee.
[xv] U.S. Coast Guard personnel based
in Rotterdam, Netherlands, Yakota, Japan, and Singapore conduct this sort of
inspection regularly for oil tankers bound for the United States. See the summarized concluding remarks Rear
Admiral Michael N. Parks, U.S. Coast Guard at the 2012 CUSLI Conference,
available at http://www.cuslinexus.com/2012/03/cusli-2012-conference-concluding.html
[xvi] For a detailed
discussion see Professor Hall’s analysis at http://www.greatlakeslaw.org/files/hall_bcealr_article.pdf
[xvii] Id.
[xviii]
NOAA’s
National Ocean Service Office of Response and Restoration, http://www.incidentnews.gov/incident/6755.
See also National Transportation Safety Board memorandum to Michigan
Gov. James Blanchard dated December 3, 1991, available at
http://www.ntsb.gov/doclib/recletters/1991/M91_44.pdf
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