Lawyers in the mist – documentation in a U.S. response

In any incident realities are either faced or fogged in some financial – if not operational – reluctance.
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By Aaron Holton
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Aaron Holton served with the US Coast Guard (USCG) before joining Witt O’Brien’s, but that was 20 years ago. Much has changed with maritime. But is it for the better?

“There are so many moving parts in the shipping industry and numerous stakeholders – they keep you on your toes,” says Aaron.

So, what is front of mind in any incident response?

Aaron’s advice for ship-operators is “don’t try to minimise the situation.” In any incident, realities are either faced or fogged in some financial – if not operational – reluctance.

“Vessel owners have historically been reluctant to get the coastguard engaged because of the costs associated. Cost can be the key driver,” says Aaron, who recalls a different world when he was a USCG pollution investigator – a field-level responder.

“There were no established marine firefighter regulations like there are now. Plus, the Incident Command System (ICS) was fledgling. It’s a completely different world now. More unified, but the expectations have maybe changed a little, from the US Coast Guard perspective.

“The USCG expects that your salvage and marine firefighter be engaged quickly during groundings (even soft groundings) even though they may not be utilised. The reason being, that they do not want a delay in response actions should the initial response efforts prove ineffective.”

ICS was established as a national model by the US Department of Homeland Security in 2004. However, the command concept goes back more than 50 years, with its initial development to manage inter-agency responses to wildfires in California.

Following the Exxon Valdez oil spill (the second largest in US waters, after Deepwater Horizon) in Prince William Sound, Alaska (March 1989), it was the scale of the disaster and its remote location that would lead to a comprehensive overhaul of government and industry response plans.

Aaron, as a Qualified Individual (QI), can serve in multiple ICS positions. He can explain the paperwork.

“The ICS documentation is there to help us manage the response. Just because there is a form, doesn’t necessarily mean the form needs to be filled out. It’s all based on the severity of the incident. Because even though the Coast Guard would probably check when you’re aligned with this documentation, technically it doesn’t have to be a written plan.”

“Now, the other side of that is, not just in the US but in other parts of the world, if one of our clients is having a bad day, especially when we are talking about an oil spill, then there are folks out there who may want to take advantage of that,” explains Aaron. “There are some legitimate claims, but there are those claims out there that are less legitimate. Lawyers are involved more often. So, we document our decisions (the same within ICS). This allows us to protect the client should the need be.”

That is the deal with robust regulation: it can frustrate, but operationally and practicably it protects.

“One of the nice things about unified command is that everybody is making decisions jointly. If we can document what we are supposed to be doing to protect the public, environment and industry from the situation, it goes a long way.”

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