Amicus Curiae Brief — Spector v. Norwegian Cruise Line Ltd.

No. 03-1388

IN Tutt

Supreme Court of the United States

DOUGLAS SPECTOR, et al.

Petitioners,

NORWEGIAN CRUISE LINE LTD..

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR THE COMMONWEALTH OF THE

BAHAMAS AND THE BAHAMAS MARITIME

AUTHORITY AS AMICI CURIAE IN

SUPPORT OF RESPONDENT

GEORGE U. CARNEAL

GREGORY G. GARRE*

CHRISTOPHER T. HANDMAN

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5065

*(Counsel of Record Counsel for Amuct Curtae

WV if

TABLE OF CONTENTS

Page

TAREE GF AU TEBUIRE E BB ccccccccccesesesssesesccsccssesceseeces ill

STATEMENT OF INTEREST OF AMICI

nT cssicsisinsdasstesesielaesibencinidnsidieiiiidinunnactenseomeemmserenes l

SUMMARY OF ARGUMENT...............:c:cccesseeeeeeeeeeee 4

IEE siihtianibibtiniimitedininnsninemsaseaeninnnnsecnmescosonnsen 6

TITLE Ill OF THE ADA DOES NOT APPLY

TO FOREIGN-FLAGGED VESSELS .................. 6

A. The Law Of Nations Has For

Centuries Recognized That The Law

Of The Flag State Generally Governs

The Internal Affairs Of A Vessel ............... 7

B. The Bahamian Flag Is Entitled To The

Full Weight Of Sovereignty Under The

Time-Honored Law Of Nations Giving

Cardinal Importance To The Flag............... 10

C. When Congress Legislates In This

Delicate Field Of International

Relations, It Intends For The Law Of

The Flag State To Apply Unless It

Clearly States Otherwise ........................005 13

D. Congress Did Not Clearly State An

Intention To Displace The Law Of

Nations Governing Vessels By

Subjecting Foreign-Flagged Vessels

To Title Ill Of The ADA.............ccceeceeeeeee 15

(i)

il

TABLE OF CONTENTS—Continued

Page

E. Extending Title III To Foreign-Flagged

Ships Would Disrupt A Vibrant Body

Of International Law And _ Invite

International Discord And Confusion ........ 19

F. The Wrongful Nature Of Discrimination

Does Not Sustain The Conclusion That

Congress Intended To Apply Title III To

Foreign-Flagged Vessels ............:csssssseeseees 29

CONC LIUGION .00cccccccccccooreseccsscnesnessesssnnnniininiinnnnnnna 30

APPENDIX

iil

TABLE OF AUTHORITIES

Page

CASES:

Benz v. Compania Naviera Hidalgo, S.A.,

EEE passim

Cunard Steamship Co. v. Mellon,

cai cncicnssscncsocecececosecs 16

De Lovio v. Boit, 7 Fed. Cas. 418

a 13

EEOC v. Arabian American Oil Co.,

499 U.S. 244 (1991) woo. eecceceeseeeeeeeeee 13, 16, 18, 19

Foremost Ins. Co. v. Richardson,

ssi carscccsnasccnscoorcese 19

Lauritzen v. Larsen, 345 U.S. 571 (1953)..........:000 passim

Mali v. Keeper of Common Jail (Wildenhus'’s

I IS 18 SUIT D cccccccccsccsscsccsnceccesscessvsseoes 8, 29, 30

McCulloch v. Sociedad Nacional de Marineros

de Honduras, 372 U.S. 10 (1963).........cccccccceeeeeee passim

Murray v. The Schooner Charming Betsy,

6 U.S. (2 Cranch) 64 (1804) .00... eee ceeeeeeeeeees 13, 19

Muscat Dhows Case, 2 Am. J. Int’! L.

ic dicnsscrctcecccneneseconsevcezeseee 10

NLRB v. Catholic Bishop of Chicago,

a ccnccacscsnscocesceseccocescoses 15

Patterson v. Bark Eudora,

ee 6

Ray v. Atlantic Richfield Co.,

a 18, 19

iV

TABLE OF AUTHORITIES—Continued

Page

Romero v. International Terminal Operating Co.,

Pe Os Se eetiincteteitntinitenntcniencsniiiiiiantins 7, 8,9, 29

Ross v. McIntyre, 140 U.S. 453 (1891)... eceeeeeees 7

Sisson v. Ruby, 497 U.S. 358 (1990)... eecccceeeeeees 19

St. Clair v. United States,

Se ST esc tiitctninierisniishpiiahaniadiiiselnisiimasiiniig 7

The Sally, 12 U.S. (8 Cranch) 382 (1814)................. 13

The Schooner Exchange v. McFaddon,

11 U.S. (7 Cranch) 116 (1812).......... baiiichinteieeatpaiied 6

United States v. Flores, 289 U.S. 137 (1933)............ )

United States v. Locke, 529 U.S. 89 (2000).............. 19, 20

United States v. Rodgers,

A re TE ccesiesecnsecsrveniciiiiiiidaaabiabiniaiaal 8

Uravic v. F. Jarka Co., 282 U.S. 234 (1931)............ 29

CONSTITUTIONAL PROVISION:

GE, CR: Ti irccccenssstttctnmncisiientasiiinenicsintie 3

STATUTES:

ar aaa Oe See ccntinsnieesermnennncienincsnadadailadainaniata 18

a ee OF Pe ctissanseanscienccsesonnenittanabananinuiiiaaiaes 16

Eas © i cicetscnewsnniicininsdincadiuniniaanbinias 18

is he viniitsisecinsipititsenitaeneiiiinsiaiiianain 18

4B UDA... Age. © TRG ID nncccscesecevesccnsvcscssesceses 18

Bahamas Maritime Authority Act of 1995................ 21

Bahamas Merchant Shipping Act,

i se OD etininccdcninhsaibaineibiiiibiipdeiiccin 21

Vv

TABLE OF AUTHORITIES—Continued

§ Page

EE ot | een EEED 14, 29

Merchant Shipping (Maritime Claims

Limitation of Liability) Act of 1989.00.00... 21

Merchant Shipping (Oil Pollution) Act

ere iciencisnincilesintediaapiiaieniiaisedshlduiipcanagspsbcuenite 21

Ports and Waterways Safety Act of 1972,

Pub. L. No. 92-340, 86 Stat. 424 oo... eens 17

Title III of the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12181-12189... passim

TREATIES AND INTERNATIONAL CONVENTIONS:

Agreement Effected by Exchange of Notes,

eve 10

Convention for the Safety of Life at Sea

(SOLAS), Nov 1. 1974, 32 U.S.T. 47 ............ 3, 20, 22, 23

Convention on Facilitation on International

Maritime Traffic, Apr. 9, 1965,

ieee hntitecsidlcucniennninmmansmmnimeaniiaitn 3, 20

Convention on Load Lines,

ae ils Se CU sininticcccnisticnhinsietssiidicndnnnsineaiii 3, 20

Convention on the High Seas, Apr. 29, 1958,

BaF aes SN UUE sesiobbiinensieinsicniiniadtniaeiiabeiaminiabinbenniais 19, 20

Convention on the International Regulations for

Preventing Collisions at Sea, Oct. 20, 1972,

a as ee neecniscenssnsisiaeiinisitacstnteiabilistinnianaianibes 3, 20

vi Vii

TABLE OF AUTHORITIES—Continued TABLE OF AUTHORITIES—Continued

Page Page

International Convention on Standards of BMA, Registration Requirements, available at

Training, Certification, and <http://www.bahamasmaritime.

Watchkeeping for Seafarers, NRT er nS Aa oo a 12

Ry Wi cliisesiisasanieinesinies , 20 aa ;

may " nore, Saas see . - a BMA, Ship Registration Services (2003)................. 11

International Labor Organization, BMA, The Bahamas Flag State Performance

Convention Concerning Minimum

Self-Assessment FOmn................scccccssssssssessseseeeees 12

Standards in Merchant Ships,

No. 147, 15 1.L.M. 1288 (1976) ............:cccccseeeeeees 3, 20, 22 Canada, Code of Practice, Ferry Accessibility for

Persons with Disabilities, available at <http://

www.cta-otc.gc.ca/access/codes/ferry/

ee, SN cacinsinincsdldestsochiniainitantiiiesinncsmnnsnpitiinn 24

United Nations Convention on the Conditions for

Registration of Ships, Feb. 7, 1986,

ee 5 __, WERDER en eee 11

United Nations Convention on the

Law of the Sea, Dec. 10, 1982,

Classification Society Authorizations by the

U.S. Coast Guard, available at

| http://www.uscg.mil/hp/g-

— 8 Xs 8 SE EOE 10, 19, 20 | m/mec/acp/euthorizations BAM .ccc.sscccsssssore 13

LEGISLATIVE MATERIALS: Disability Rights Education & Defense Fund,

Bs A es TOP UU sncsnsttntcisacsnneseniiastedeiitinnnsiiin 18 Country Laws Index, http://www.

RULE: dredf.org/international/lawindex.html.................. 24

ID issiiceseceonssnisiicssalabesoibinslsiaitnc E. VATTEL, LAW OF NATIONS, Bk. I, ch. 19,

omen § 216 (Joseph Chitty ed. 1852) (1758)................. 8

IMO, Frequently Asked Questions, available at

Australia, Disability Standards for Accessible <http://www. imo.org/home.asp>............cce0e0ee0e0 23

Public Transport, available at

http://law.gov.au/www/civiljusticehome.nsf/A IMO, Maritime Safety Comm., Recommendation

IDocs/RWP2D7CECE1EA698DC4CA256C1 on the Dann and Qpanation of Saseenger

D00001 EOB2?OpenDocument .............sssssseseeseeeee 24 Ships to Respond to Elderly and

Disabled Persons’ Needs,

BMA, BMA Information Bulletin No. 10, MSC/Cir. 735 (June 24, 1996).....cccccccccccsesseeeeeeeees 25

available at <http://www.bahamas

maritime.com/index htm> ...............ccecceeceeeeeeeeeeees 11 IMO, Surviving Disaster—The Titanic and

SOLAS, available at <http://www.imo.org/

Safety/mainframe.asp?topic_id=479>..............00. 21

Vill

TABLE OF AUTHORITIES—Continued

Page

Note, The Effect of United States Labor

Legislation on the Flag-of-Convenience

Fleet, 69 Yale L.J. 498 (1960)...........ccscccsssessreeees 9

Paris Memorandum of Understanding on

Port State Control, Annual Report 2003............... 23

Paris Memorandum of Understanding,

Se sane OF CIE scinkdesisisraneninannsosiisnpescactetianscetuice 23

R.R. CHURCHILL & A.V. Lowe,

THE LAW OF THE SEA (3d ed. 1999)................ 8, 12, 22, 26

Recommendations for Accessibility Guidelines

for Passenger Vessels: Final Report

(Dec. 2000) (ADAAG/Coast Guard

RN CI cscscccscevinssocscccscovecsennsonisiecniiones 26

RESTATEMENT (THIRD) OF THE FOREIGN

RELATIONS LAW OF THE UNITED STATES

ITE nicccidaiichiesidshiteinainiduiadiidtininieninbeedsinniaeeiiaiiies 2, 7,11, 19

Theresia Degener, Disability as a Subject of

International Human Rights Law and

Comparative Discrimination Law, in

THE HUMAN RIGHTS OF PERSONS WITH

INTELLECTUAL DISABILITIES:

DIFFERENT BUT EQUAL 151

(Stanley S. Herr, et al. eds., 2003).................cceeee. 24

United Kingdom, Design of Large Passenger

Ships and Passenger Infrastructure: Guidance

on Meeting the Needs of Disabled People,

available at http://www.dptac.gov.uk/pubs/

Bk 24, 25

ix

TABLE OF AUTHORITIES—Continued

UNITED STATES DEPARTMENT OF JUSTICE, ADA

TECHNICAL ASSISTANCE MANUAL

§ I11-5.3000, illus. 3 (1993) .........ccccsessceerereereeeees

UNITED STATES DEPARTMENT OF STATE, DIGEST

OF UNITED STATES PRACTICE IN

INTERNATIONAL LAW 675 (2001) ...........cceeeeeee sees

Tn

Page

STATEMENT OF INTEREST OF AMICI CURIAE

The overriding question in this case is whether Congress, in

enacting Title III of the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12181-12189, intended to engraft onto

the robust body of international law governing foreign-

flagged vessels an indeterminate code of American structural

and design requirements that would attach to a foreign vessel

as soon as she entered a United States port.' The

Commonwealth of the Bahamas and the Bahamas Maritime

Authority (collectively, The Bahamas) have a direct and

substantial interest in the resolution of that question.

The Commonwealth of the Bahamas (Commonwealth)

became an independent nation on July 10, 1973, following

325 years of British rule. The Commonwealth established a

democratic state with a tripartite form of constitutional

government in which the Queen of England is the titular

Head of State. The Commonwealth is an active participant in

the world community and a fully self-governing member of

the United Nations, Commonwealth of Nations, Organization

of American States, and Caribbean Community. The

Bahamas Maritime /.uthority (BMA) is an arm of The

Bahamas Ministry of Transport and Aviation. The BMA

oversees the Bahamas Merchant Shipping Register,

administers the laws governing vessels on that register,

represents the Commonwealth in international organizations

concerning maritime matters, and advises the

Commonwealth on maritime matters. The BMA has offices

in Nassau, London, and New York, and agents in Tokyo.

' Pursuant to S. Ct. Rule 37.6, The Commonwealth of The

Bahamas and The Bahamas Maritime Authority state that no part

of this brief was authored by counsel for any party, and no person

or entity other than the amici curiae made any monetary

contribution to the preparation or submission of the brief. This

brief is filed with the written consent of all parties.

2

First discovered by Christopher Columbus in 1492, The

Bahamas comprise an archipelago of some 700 islands

located along prime shipping lanes in the Atlantic Ocean.

The Bahamas has a rich maritime heritage and today has the

world’s third largest ship registry. More than 1300 vessels—

over 100 of which are cruise ships—fly the Bahamian flag,

including cruise ships operated by the respondent in this case.

BMA, Ship Registration Services 6-7 (2003). The Bahamas

has more cruise ships on its registry than any other nation,

but cruise ships comprise less than 10 percent of the vessels

on The Bahamas’ registry. /d. at 7. The Bahamas’ registry

comprises a full range of craft, including container ships,

bulk carriers, reefers, and offshore oil and gas vessels. /d.

The Bahamas is an active hub of international maritime trade

and an important maritime gateway to the Americas.

The Bahamas has a well-established sovereign interest in

each of the ships that fly its flag, which, at least figuratively

speaking, are a part of her territory. “[T]he well-established

rule of international law [is] that the law of the flag state

ordinarily governs the internal affairs of a ship.” McCulloch

v. Sociedad Nacional de Marineros de Honduras, 372 US.

10, 21 (1963). That rule is based on the centuries-old

understanding “that there must be some law on shipboard,

that it cannot change at every change of waters, and no

experience shows a better rule than that of each state that

owns her.” Lauritzen v. Larsen, 345 U.S. 571, 585 (1953).

Among other things, the flag state is responsible for

determining how its vessels must be designed, built, and

modified. See RESTATEMENT (THIRD) OF THE FOREIGN

RELATIONS LAW OF THE UNITED STATES § 502 cmt. b (1986).

The Bahamas, like other maritime nations, carefully

exercises that important sovereign authority.

The Bahamas has ratified every major convention on

maritime safety, including the seminal Convention for the

3

Safety of Life at Sea (SOLAS), Nov 1. 1974, 32 U.S.T. 47.2

The Bahamas is a member of the governing council of the

International Maritime Organization (IMO), a specialized

agency of the United Nations which is represented by 164

Member States and is_ responsible for developing

international rules governing the safety and security of

vessels. When a nation joins the IMO, it agrees to make its

conventions part of its own law. The Bahamas has played a

leading role on the governing council of the IMO in

developing protocols and amendments designed to promote

safety and uniformity in international maritime commerce.

This overarching concern for maritime safety, coupled with a

rigorous annual-inspection program to ensure that vessels on

its register comply with Bahamas and international safety

standards, has ensured that Bahamian-flagged ships are

among the safest in the world. See Part B, infra.

The Bahamas—whose people are _ constitutionally

committed to preventing discrimination, see Bahamas Const.

art. [[I—ascribes to the aspirations of the ADA and supports

the efforts of all vessel owners to prevent discrimination

against individuals with disabilities. As a nation whose

history and fortunes are inextricably intertwined with

maritime commerce, however, The Bahamas is also deeply

committed to the international fabric and law of nations

governing shipping, including the rule that the “law of the

flag” governs the internal affairs of the ship. To the extent

that regulatory action is necessary to prevent discrimination

? See, e.g., Convention on Load Lines, 18 U.S.T. 1857 (1966);

Convention on the International Regulations for Preventing

Collisions at Sea, Oct. 20, 1972, 28 U.S.T. 3459; International

Convention on Standards of Training, Certification, and

Watchkeeping for Seafarers, July 7, 1978, 1361 U.N.T.S. 190;

Convention on Facilitation on International Maritime Traffic, Apr.

9, 1965, 18 U.S.T. 411; International Labor Organization,

Convention Concerning Minimum Standards in Merchant Ships,

No. 147, 15 LL.M. 1288 (1976).

4

on vessels in United States ports or other ports around the

world, an existing international framework— including the

IMO—exists to act in a multilateral fashion that would avoid

the undesirable prospect of one nation seeking to impose its

own structural requirements on the ships of other nations

and, even worse, the prospect of many nations imposing

different or conflicting requirements in a fashion that could

wreak international havoc for maritime nations.

SUMMARY OF ARGUMENT

International law was largely borne of the need for civilized

societies to establish a uniform set of rules for shipping. For

centuries, the law of nations has recognized that the law of

the flag state generally governs the internal affairs of a ship,

including the structure and design of the ship. That rule is

based on the common-sense understanding that there must be

some law that governs the internal affairs of the ship, and that

maritime commerce would be stifled if the internal affairs of

a ship were governed by a different set of laws every time it

called on a new foreign port. This Court has long recognized

the “cardinal importance” of the international “law of the

flag,” Lauritzen v. Larsen, 345 U.S. 571, 584-585 (1953), as

well as the fundamental sovereign interest of foreign nations

to regulate the internal affairs of vessels that fly their flag.

The Court will not construe an Act of Congress to apply to

the “internal affairs” of foreign-flagged vessels that enter

United States waters absent “‘the affirmative intention of

Congress clearly expressed.”” McCulloch v. Sociedad

Nacional de Marineros de Honduras, 372 U.S. 10, 21-22

(1963) (quoting Benz v. Compania Naviera Hidalgo, S.A.,

353 U.S. 138, 147 (1957)). Congress has not clearly

expressed any “affirmative intention” to subject foreign-

flagged vessels that enter United States waters or its ports to

a specialized code of American structural and design

requirements. Nothing in the text of Title III of the ADA

expressly calls for such regulation. Nor is there any

indication in the voluminous legislative history of the ADA

5

that Congress weighed the likely international ramifications

of subjecting foreign-flagged ships to such a regime. In

order to avoid an unintended collision between United States

law and the law of nations, this Court accordingly should

hold that Title III does not apply to foreign-flagged vessels.

A contrary ruling would invite the international discord that

the Court’s clear-statement rule is designed to avoid.

Applying Title III’s general accessibility provisions to

foreign-flagged ships would intrude on the sovereign

authority that flag states, including The Bahamas, have

traditionally exercised over the internal affairs of vessels on

their registries, including with respect to matters of structure

and design. It would also interfere with the active

international body of law, including SOLAS, governing

matters relating to ship design and structure. Not only would

such a result draw the United States into potentially

embarrassing international clashes, but it could precipitate

enormous uncertainty and confusion on a global level. If the

United States chose to apply its own accessibility standards

to foreign-flagged ships entering its waters, many of the other

40 countries around the world with antidiscrimination laws

might respond by attempting to apply their own unique—and

divergent, if not contradictory—set of standards to foreign-

flagged ships, including U.S. ships. International maritime

commerce would run aground, as no vessel could possibly

navigate such an unpredictable and stormy regulatory sea.

There is no reason for this Court to disregard the prospect

for such international discord on the basis of petitioner’s

attack on the legitimacy of the Bahamanian flag. The United

States has recognized that ships flying the Bahamanian flag

are subject to the sovereign control of The Bahamas, and that

the regularity of a registration may be questioned only by the

flag state. Moreover, The Bahamas has developed a

comprehensive regulatory scheme governing the vessels that

it registers, which is interwoven with all the major

international conventions governing maritime matters. The

6

Bahamas subjects its vessels to rigorous inspections and

Bahamanian-flagged ships are recognized as among the

safest in the world. In deciding this case, this Court

accordingly should give full sovereign weight to the

Bahamanian flag, not to mention the flags of other major

maritime nations, which have the same interest in ensuring

that the community of nations respects the law of the flag.

ARGUMENT

TITLE Ill OF THE ADA DOES NOT APPLY

TO FOREIGN-FLAGGED VESSELS

Over centuries, the law of nations has come to recognize

that seafaring vessels need to be governed by one set of laws,

and that those laws typically are supplied by the flag state.

The Bahamas carefully exercises that sovereign authority

with respect to the vessels that fly its flag on waters the world

over. The Bahamas recognizes that the United States

Government, like the governments of all seafaring nations,

has the sovereign authority to apply its own laws to the

foreign-flagged ships that enter its territorial waters or ports.

See Patterson v. Bark Eudora, 190 U.S. 169, 173 (1903); The

Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116,

144 (1812). The question before the Court is whether the

United States Congress actually chose to exercise that

authority when it enacted Title III of the ADA. The

resolution of that question is of far-reaching concern to the

maritime nations of the world including The Bahamas.

Petitioners and the United States argue that Congress

intended Title III to apply to foreign flag vessels because

“(njothing in the statute exempts foreign-flagged ships * * *

from Title III’s non-discrimination and _ accessibility

requirements.” U.S. Br. 15 (emphasis added); Pet. Br. 31.

That argument turns the settled rule of construction on its

head. Under this Court’s precedents and general principles

of maritime law, it is presumed that “the law of the flag state

ordinarily governs the internal affairs of a ship,” McCulloch,

372 U.S. at 21, even when that ship calls on foreign ports.

7

That heavy presumption ‘‘ prevail unless Congress has

“clearly expressed” an “affirmative intention” to apply

domestic law to foreign-flagged vessels. Benz, 353 U.S. at

147; see McCulloch, 372 U.S. at 21-22.

Title III lacks such a clear statement. Nowhere does the

Act refer to foreign-flagged ships. Nor is there any mention

in the text of the ADA—or even in the more than 3000 pages

of accompanying legislative history—that Congress weighed

the “possibilit[y] of international discord” (Benz, 353 U.S. at

147), or risk of “retaliative action” (id.), that would ensue if

Congress applied Title III to foreign-flagged ships. Nor did

Congress receive testimony from officials of the Department

of State, or invite the testimony of representatives of foreign

governments, as to the ramifications of applying Title III to

foreign-flagged ships, as Congress often does when it

legislates in the “delicate field of international relations.”

McCulloch, 372 U.S. at 21. In the absence of such a clear

statement, there is no reason to construe Title III in a manner

that would invite international discord and confusion.

A. The Law Of Nations Has For Centuries Recognized That

The Law Of The Flag State Generally Governs The

Internal Affairs Of A Vessel

In considering claims that United States law applies to

foreign-flagged ships, this Court has emphasized that federal

statutes will “be applied by the courts to * * * foreign ships

* * * only in accordance with the usual doctrine and practices

of maritime law.” Lauritzen, 345 U.S. at 581; see

McCulloch, 372 U.S. at 19 n.9; Romero v. International

Terminal Operating Co., 358 U.S. 354, 381-384 (1959);

Benz, 353 U.S. at 142. Two customary maritime doctrines

and practices are particularly relevant here. The first is that

the nationality of a ship is determined by its registry and its

flag. Lauritzen, 345 U.S. at 584; see St. Clair v. United

States, 154 U.S. 134, 151-152 (1894); Ross v. McIntyre, 140

U.S. 453, 472-473 (1891); RESTATEMENT (THIRD) OF THE

FOREIGN RELATIONS LAW § 501. The rule of the “flag” is

8

significant because “(t]he ascription of nationality to ships is

one of the most important means by which public order is

maintained at sea.” R.R. CHURCHILL & A.V. LOWE, THE

LAW OF THE SEA 257 (3d ed. 1999). The second principle,

which follows from the first, is that the universal practice

among maritime nations is to “give[] cardinal importance to

the law of the flag.” Lauritzen, 345 U.S. at 584. This is, in

fact, “[p]erhaps the most venerable and universal rule of

maritime law.” Jd.; see McCulloch, 372 U.S. at 21; Romero,

358 U.S. at 382-384; see also E. VATTEL, LAW OF NATIONS,

Bk. 1, c. 19, § 216 (Joseph Chitty ed. 1852) (1758).

Together, these bedrock principles of international law give

rise to the operative rule in this case: that “the law of the flag

state ordinarily governs the internal affairs of a ship.”

McCulloch, 372 U.S. at 21. As this Court has observed:

From experience * * * it was found long ago that it

would be beneficial to commerce if the local

government would abstain from interfering with the

internal discipline of the ship, and the general

regulation of the rights and duties of the officers and

crew toward the vessel, or among themselves. And

so by comity it came to be generally understood

among civilized nations that all matters of discipline

and all things done on board, which affected only the

vessel or those belonging to her, and did not involve

the peace or dignity of the country, or the tranquility

of the port, should be left by local government to be

dealt with by the authorities of the nation to which the

vessel belonged as the laws of that nation, or the

interests of its commerce should require.

Mali v. Keeper of Common Jail (Wildenhus’s Case), 120

U.S. 1, 12 (1887) (emphasis added).’

> Accord United States v. Rodgers, 150 U.S. 249, 260 (1893)

(“The general rule is that the country to which the vessel belongs

will exercise jurisdiction over all matters affecting the vessel, or

9

This “well-established rule of international law” dates back

centuries. McCulloch, 372 U.S. at 21. Indeed, long before

this Court formally endorsed it, the rule had already “been

supported by writers on international law, and ha[d] been

recognized by France, Belgium, and other continental

countries, as well as by England and [the executive branch

of] the United States.” United States v. Flores, 289 U.S. at

157 (citations omitted). In addition, as the United States has

explained to this Court, the rule is “reflected not only in the

settled decisions of this Court, but also in the Treaties of the

United States and the regulations of the State Department.”

McCulloch, supra, Br. for the United States as Amicus

Curiae, at 43 (McCulloch U.S. Br. 43) (footnote omitted).

Without a reciprocal arrangement by which all nations

defer to a flag state’s regulations affecting a ship’s “internal

affairs,” the essential functions and operations aboard a

vessel could abruptly change at every port of call. And that

is assuming that they even could change. After all, there are

a number of shipboard operations that are so fixed and

integrated—ship structure and design being two—that they

simply could not change from port to port. As this Court has

observed in a similar vein, such an unpredictable regime

would create “not only an onerous but also an unduly

speculative burden, disruptive of international commerce and

without basis in the expressed policies of this country.”

Romero, 358 U.S. at 384; see also Note, The Effect of United

States Labor Legislation on the Flag-of-Convenience Fleet,

69 Yale L.J. 498, 504 (1960) (“The absolute power of the

coastal state [to regulate foreign vessels] is tempered * * * by

the demands of comity among nations, which require it to

exercise a high degree of self-restraint, particularly in matters

involving the ‘internal economy’ of a foreign vessel.”).

those belonging to her, without interference of the local

government, unless they involve its peace, dignity, or tranquility,

in which case it may assert its authority.”) (emphasis added);

United States v. Flores, 289 U.S. 137, 158 (1933).

10

B. The Bahamian Flag Is Entitled To The Full Weight Of

Sovereignty Under The Time-Honored Law Of Nations

Giving Cardinal Importance To The Flag

In light of the settled international rule that the “law of the

flag” governs the internal affairs of the ship, all maritime

nations that register vessels have a fundamental sovereign

interest in the regulation of the vessels that fly their flag. The

Bahamas exercises that sovereignty and responsibility with

great care and, in doing so, has played a leading role in the

development of international law designed to promote

maritime safety and other matters. The Court should reject

petitioners’ unfounded suggestion that the Bahamian flag

enjoys “little if any genuine sovereignty,” Br. 31, and that

foreign flagging is a mere “facade.” Br. 2, 7.

The United States and The Bahamas have signed treaties

and understandings regarding maritime commerce in which

the United States has recognized that ships registered with

The Bahamas and flying The Bahamian flag are subject to

the sovereign control of The Bahamas. See Agreement

Effected by Exchange of Notes, Oct. 5, 1982, 35 U.S.T.

3843. Moreover, “[t]he United States has firmly and

successfully maintained that the regularity and validity of a

registration can be questioned only by the registering state.”

Lauritzen, 345 U.S. at 584. That position accords with the

law of nations. See, e.g., Law of the Sea Convention, art.

94(6); cf Muscat Dhows Case, 2 Am. J. Int’] L. 921 (Fr.

1908) (“Generally speaking it belongs to every sovereign to

decide to whom he will accord the right to fly his flag and to

prescribe rules covering such grants.”). Accordingly, it is

telling that the United States does not join petitioners’

unavailing effort to demean the Bahamanian flag.

More than just U.S. diplomatic practice and policy confirm

that The Bahamas is not a “flag of convenience.” The United

Nations Convention on the Conditions for Registration of

Ships, which was drafted “to tighten the conditions under

which * * * ‘flags of convenience’[] would be allowed to

=

11

register ships,” RESTATEMENT (THIRD) OF THE FOREIGN

RELATIONS LAW §501 rep. note 7, identifies several

significant steps that a responsible flag state must take. See

U.N. Convention on the Conditions for Registration of Ships,

Feb. 7, 1986, art. 5, 26 I.L.M. 1229 (1987) (Ship Registration

Convention). The Bahamas has taken them all. For

example, the Convention provides that each ship must be

“periodically surveyed by [the flag state’s] authorized

surveyors in order to ensure compliance with applicable

international rules and standards.” Jd. art. 5(3)(b). Under

Bahamian law, all Bahamian-flagged ships must undergo an

annual inspection. See BMA, BMA Information Bulleting

No. 10, available at <http://www.bahamas maritime.com/

index.htm>. This inspection examines more than 150

discrete aspects of ship safety and design—including the

ship’s machinery, safety equipment, manning arrangements,

certificates, documentation, charts, and other navigational

equipment. See Guidelines For BMA Approved Inspectors

(App. 12-39). By establishing the BMA to administer these

inspections, The Bahamas has thus satisfied the Convention’s

requirement that a “flag State shall have a competent and

adequate national maritime administration” to ensure that its

ships comply with all “applicable international rules and

standards.” Ship Registration Convention, art. 5(1), (3)(a).

By scrupulously enforcing these safety and design

standards, The Bahamas not only ensures the integrity of its

ships, but also effectively deters less reputable ship operators

from seeking to join the registry in the first place. Indeed,

The Bahamas purposefully charges an initial registration fee

that “is higher than that of some other registers” precisely as

a way “to discourage less reputable operators.” BMA, Ship

Registration Services 13 (2003). Moreover, to ensure that

The Bahamas remains a premier registry, every ship operator

* The Ship Registration Convention is not yet in force, but

nonetheless remains an instructive statement of customary

international law on registration requirements.

12

must produce more than two dozen different certificates,

declarations, and applications designed to demonstrate the

operator’s reputability.° See also BMA, The Bahamas Flag

State Performance Self-Assessment Form (summarizing The

Bahamas’ commitment to international standards and its

performance record) (App. 1-11). And when there is an

accident involving one of its vessels, the BMA conducts a

detailed investigation. This comprehensive regulatory

scheme has worked: over the past decade Bahamanian-

flagged ships have ranked among the safest in the world.

More generally, petitioner’s attack on the Bahamanian flag

overlooks the active role that The Bahamas has played in the

international framework governing shipping. As _ noted

above, The Bahamas is a signatory to every major maritime

convention. See note 2, supra. Moreover, The Bahamas

occupies a seat on the IMO’s governing council, which is

“composed of the representatives of thirty-two States with

the largest interests in the provision of shipping and

international seaborne trade and other special interests in

maritime transport or navigation.” R.R. CHURCHILL & A.V.

LOWE, supra, at 23. In that capacity, The Bahamas has

played a leadership role in proposing and shaping new

standards for shipping safety and design. See Part E, infra.

The Bahamas, in short, is a full-fledged member of the

community of maritime nations. And its flag is entitled to

the full weight of sovereignty and respect enjoyed by the

flags of the other leading maritime nations of the world.

> These include SOLAS Certificates, Passenger Ships-Safety

Certificates, Loan Line Certificates, Bills of Sale or Builder’s

Certificates, Certificates of Company Incorporation, International

Tonnage Certificates, Declarations of Ownership, and Safe

Manning Certificates. See BMA, Registration Requirements,

available at <http://www.bahamasmaritime. com/index.htm>.

6

The amicus law professor notes that The Bahamas relies on

eight classification societies to inspect Bahamian-flagged ships.

13

C. When Congress Legislates In This Delicate Field Of

International Relations, it Intends For The Law Of The

Flag State To Apply Unless It Clearly States Otherwise

The venerable rule that the law of the flag state governs the

“internal affairs” of ships developed “from acceptance by

common consent of civilized communities” over centuries.

Lauritzen, 345 U.S. at 582; see De Lovio v. Boit, 7 F. Cas.

418 (Cir. Ct. D. Mass. 1814) (Story, J.); The Sally, 12 U.S. (8

Cranch) 382 (1814). Congress is presumed to be aware of

that law of nations and to respect it. See McCulloch, 372

US. at 20 n.10; see also EEOC v. Arabian American Oil Co.

(ARAMCO), 499 U.S. 244, 248 (1991). As Chief Justice

Marshall famously declared, “an act of Congress ought never

to be construed tou violate the law of nations, if any other

construction remains.” Murray v. The Schooner Charming

Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). In a series of cases,

this Court has tailored the Charming Betsy canon to the

“highly charged international” context of applying United

States law to a foreign-flagged vessel and declared that it will

not interpret an Act of Congress to apply to foreign-flagged

vessels that enter the United States absent “‘‘the affirmative

intention of the Congress clearly expressed.”” McCulloch,

372 US. at 21-22 (quoting Benz, 353 U.S. at 147).’

That does not undermine the sovereignty of the flag or the respect

to which it is entitled. The U.S. Coast Guard relies on five of those

eight classification societies in conducting U.S. inspections. See

Classification Society Authorizations by the U.S. Coast Guard,

available at <http://www.uscg.mil/hp/g-m/mse/acp/authorizations

-htm>. Moreover, the eight societies that The Bahamas uses are all

members of the International Association of Classification

Societies—an organization that enjoys observer status at the IMO.

” Petitioners suggest that the canon of construction that gives

cardinal importance to the law of the flag state should not apply if

a foreign-flagged vessel has a particular a “U.S. nexus” (Br. 2, 36).

That contention is without merit. In undertaking the jurisdictional

determination whether foreign-flagged vessels are subject to

14

That rile of construction itself has deep roots in our

nation’s history and diplomatic practice. As early as 1842,

Secretary of State Webster, in protesting the application of

British colonial law to United States ships temporarily

docked in the Banamas (then under British rule), forcefully

articulated the United States’s view that a clear statement

was necessary before one sovereign could legitimately apply

its laws to foreign-flagged ships that enter its ports:

A merchant-vessel enters the port of a friendly state

*** by the presumed allowance or permission of

that sovereignty. {his permission or allowance is

— founded on the comity of nations, * * * and this

comity is part, and a most important and valuable

part, of the law of nations to which all nations are

presumed to assent until they make their dissent

known. In the silence of any positive rule affirming,

or denying, or restraining the operation of foreign

United States laws in U.S. termtory, this Court’s decisions have

drawn a bright line based on whether a vessel is foreign-flagged.

Substituting a “nexus” test for the foreign-flag test would subject

this important jurisdictional determination to “a purely ad hoc”

and factbound analysis that “would inevitably lead to

embarrassment in foreign affairs and be entirely infeasible in

practice.” McCulloch, 372 U.S. at 19. Especially in this sensitive

area of international law, the threshold determination of what law

applies should be subject to a clear and predictable rule.

This Court has employed a contacts-based approach in applying

the Jones Act, 46 U.S.C. § 688, to individual cases. As the United

States explained in McCulloch, however, “the choice of law to

govern a maritime tort raises altogether different questions than a

claim of jurisdiction to regulate [under a statute].”. McCulloch,

U.S. Br. 53. “Although the weighing of various ‘contacts’ is a

recognized basis for choosing the law to govern the legal incidents

of a single transaction,” there is no basis for applying “shifting

standards” for determining what law applies to vessels as they

“move ] from the territorial waters of one nation to another.” /d.

15

laws, their tacit adoption is presumed, to the usual

extent.

6 Webster’s Works 303, 310 (letter to Lord Ashburton, Aug.

1, 1842).

Moreover, the clear-statement rule is an essential safeguard

for ensuring that Congress, and not the courts, carefully

weighs the “possibility of international discord” before

extending United States law in this “delicate field of

international relations.” McCulloch, 372 U.S. at 21; see also

NLRB vy. Catholic Bishop of Chicago, 440 U.S. 490, 500

(1979). Congress “alone has the facilities necessary to make

fairly such an important policy decision where the

possibilities of international discord are so evident and

retaliative action so certain” in this sphere. Benz, 353 U.S. at

147. Before this Court will conclude that Congress has

adopted a policy that departs from the usual comity and

reciprocity exercised in this area of international law, it must

be clear that Congress contemplated and affirmatively chose

to place the United States on such a collision course.

D. Congress Did Not Clearly State An Intention To Displace

The Law Of Nations Governing Vessels By Subjecting

Foreign-Flagged Vessels To Title 11 Of The ADA

A proper application of the clear-statement rule in this case

leads to the conclusion that Congress did not intend to apply

Title III of the ADA to foreign-flagged ships. Nothing in

Title III “clearly express[es]” any “affirmative intention” on

the part of Congress to apply the Act’s accessibility rules to

such vessels. Benz, 353 U.S. at 147. Indeed, nothing in the

Act, nor even its 3000-page legislative history, alludes to

foreign-flagged ships, much less confirms that Congress

weighed the potential for international strife and retaliatory

action by subjecting foreign flagged ships to a specialized

code of structural and design requirements. See Benz, 353

U.S. at 144 (“[N]o discussion in either House of Congress

has been called to our attention from the thousands of pages

of legislative history that indicates in the least that Congress

16

intended the coverage of the Act to extend to circumstances

such as those posed here.”); McCulloch, 372 U.S. at 20.

Petitioners and the United States ground their contrary

interpretation on generalized language of the ADA. In

particular, petitioners and the United States point to the Act’s

definition of “commerce.” See Pet. Br. 31-33; U.S. Br. 16-

17. In McCulloch, however, this Court rejected an almost

identical argument that the broadly worded definition of

“commerce”—which also referred to “foreign commerce” —

in the National Labor Relations Act established an

“affirmative intention” to apply the Act to foreign-flagged

vessels that enter the United States. See 372 U.S. at 15 n.3

(quoting 29 U.S.C. § 152(6)); id. at 19 (noting lack of “any

specific language” establishing that “Act may be read

literally as including foreign-flag vessels within its

coverage”); ARAMCO, 499 U.S. at 251-252 (discussing

McCulloch). What is more, in McCulloch, the United States,

as amicus curiae, specifically urged the Court to adopt that

construction of the Act. See McCulloch U.S. Br. 30.

Citing Cunard Steamship Co. v. Mellon, 262 U.S. 100, 124

(1923), petitioners and the United States argue that Title III

must be construed to apply to foreign-flagged cruise ships in

order to create “a comprehensive ban on discrimination

against individuals with disabilities throughout the nation.”

U.S. Br. 17; Pet Br. 29-30. Cunard considered whether the

National Prohibition Act applied to foreign-flagged vessels

that enter United States ports. The Court answered that

question in the affirmative, but there are at least two key

distinctions between this case and Cunard. First, the

National Prohibition Act expressly excepted shipping in the

Panama Canal Zone. 262 U.S. at 128. Based on that textual

exception, the Court reasoned that Congress intended the Act

“to be operative throughout the territorial limits of the United

States, with the single exception stated in the Canal Zone

provision,” and “to apply to all merchant vessels, whether

foreign or domestic, within those waters.” /d. at 128-129

17

(emphasis added). There is no comparable textual statement

in Title II] of the ADA. Second, contraband—like alcohol,

during prohibition, or controlled substances today—presents

unique enforcement concerns. Any domestic opening in the

enforcement scheme may defeat an entire prohibition effort.

Congress’s admirable effort to prevent discrimination against

the disabled on the land, and even on domestic ships, would

not be circumvented if Title III did not apply to foreign ships.

And, by not extending Title II]_to such ships, Congress

avoided potential international discord and retaliation.

Petitioners and the United States suggest that the “dearth of

U.S.-flagged cruise ships * * * means that Congress would

ipso facto have intended [Title III] to apply to foreign-

flagged cruise ships operating in U.S. waters.” Pet. Br. 32

(emphasis in original); U.S. Br. 15-16. That surmise falls far

short of the requisite clear statement. In any event, Title III

has an extensive application to businesses and public places

in the United States other than foreign-flagged ships. There

is no reason to think that Congress believed that the

objectives of the Act would be thwarted if it did not extend it

to foreign-flagged vessels. Moreover, the settled rule that

United States law does not displace the law of the flag does

not ebb and flow based on the percentage of foreign-flagged

vessels in United States waters. Nor do the international

concerns about applying United States law to foreign-flagged

vessels evaporate once the number of foreign vessels in

United States waters reaches a certain level.

In the Ports and Waterways Safety Act of 1972, Pub. L.

No. 92-340, 86 Stat. 424, Congress expressly applied

environmental regulations to foreign-flagged vessels, even

though the vast majority of tankers operating in United States

waters are foreign. See id. But Congress did not reach this

conclusion lightly.® To the contrary, the Senate Report

* In fact, Congress delayed the effective date of the Act for more

than a year so that the Secretary of Transportation could circulate

the “proposed environmental protection rules and regulations with

18

indicated that “the inclusion of foreign-flag vessels entering

the waters of the United States was a matter of some

controversy during the hearings on the legislation.” S. Rep.

No. 92-724, at 22 (1972). Yet, unlike as to Title III of the

ADA, Congress directly weighed the “justifiable concerns

[that] were expressed about the unilateral application by the

United States of standards on vessels of foreign registry.” /d.

Statutes—like the Ports and Waterways Safety Act—that

expressly assert jurisdiction over foreign-flagged ships

“buttress[]” (ARAMCO, 499 U.S. at 258) the conclusion that

Congress did not intend Title III to apply to foreign-flagged

ships. See also, eg., 46 U.S.C. App. § 1903(c)(1)(C)

(Maritime Drug Law Enforcement Act applies to “vessel[s]}

subject to the jurisdiction of the United States,” including

vessels “registered in a foreign nation where the flag nation

has consented or waived objection to the enforcement of

United States law by the United States”); 15 U.S.C.

§ 1175(a) (making it unlawful to “manufacture, recondition,

repair, sell, transport, possess, or use any gambling device

*** on a vessel ** * documented under the laws of a

foreign country”); 46 U.S.C. § 10313(1) (Seaman’s Wage Act

applies to “a seaman on a foreign vessel when in a harbor of

the United States”). These enactments demonstrate that

Congress knows well how to extend United States law to

foreign-flagged vessels when it wants to.

In short, petitioners and their amici have failed to show that

Title III of the ADA contains the type of “affirmative

intention” (Benz, 353 U.S. at 147) necessary to overcome the

clear-statement rule in favor of applying the law of the flag.

respect to vessel design to the appropriate international forums for

consideration as international standards.” Ray v. Atlantic Richfield

Co., 435 U.S. 151, 167 (1978) (citing 46 U.S.C. § 391a(7)(B)).

This underscores how seriously Congress considers legislation that

threatens to disrupt the normal rules of international comity.

19

E. Extending Title III To Foreign-Flagged Ships Would

Disrupt A Vibrant Body Of International Law And

_ Invite International Discord And Confusion

Since at least the Charming Betsy, this Court has carefully

piloted its jurisprudence to avoid “unintended clashes

between [United States] laws and those of other nations

which could result in international discord.” ARAMCO, 499

U.S. at 248. Such caution is especially appropriate here.

1. A uniform set of rules governing the design and

structure of ships is essential at the global level.’ That is why

international law designates a single sovereign responsible

for regulating each ship’s design, safety, and structure—the

state whose flag the ship flies. See Convention on the High

Seas, Apr. 29, 1958, art. 10, 13 U.S.T. 2312 (High Seas

Convention); United Nations Convention on the Law of the

Sea, Dec. 10, 1982, art. 94, 1833 U.N.T.S. 397 (Law of the

Sea Convention); see also RESTATEMENT (THIRD) OF THE

FOREIGN RELATIONS LAW § 502. Both the High Seas

Convention and the Law of the Sea Convention provide that

“{e]very State shall take such measures for ships under its

flag as are necessary to ensure safety at sea with regard * * *

to * * * [t]he construction, equipment and seaworthiness of

ships.” High Seas Convention, art. 10(c); accord Law of the

Sea Convention, art. 94(3)(a); see also Law of the Sea

Convention, art. 94(1) (“Every State shall effectively

® This Court’s admiralty and preemption precedents have

recognized that—as a domestic matter—only one sovereign can

effectively prescribe design standards for maritime commerce. See

Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674-675 (1982);

Sisson v. Ruby, 497 U.S. 358, 362 (1990). Thus, the Court has on

several occasions found that Congress has preempted state rules

governing vessel designs because of the need for a “uniform

federal regime” controlling such maritime matters. United States

v. Locke, 529 U.S. 89, 111 (2000) (quoting Ray v. Atlantic

Richfield Co., 435 U.S. at 165). The need for such uniformity is

exponentially greater when it comes to international shipping.

20

exercise its jurisdiction and control in administrative,

technical and social matters over ships flying its flag.”).'°

While this rule provides predictability by ensuring that

ships will only have to comply with a single set of design

rules, by itself it would do nothing to promote international

uniformity, since each flag state would be free to apply its

own idiosyncratic standards to its own vessels. Therefore,

international law also provides that, in adopting rules for

vessel design and structure, “each State is required to

conform to generally accepted international standards and to

take any steps which may be necessary to ensure their

observance.” High Seas Convention, art 10(2); accord Law

of the Sea Convention, art. 94(5). The upshot of this well-

established international regime—in which virtually all

maritime nations, including the United States and The

Bahamas, participate—is that the flag state remains at all

times the single sovereign authorized to prescribe design

rules, but in doing so, must ensure that those regulations

meet a number of established international standards.

Those international standards arise from “a significant and

intricate complex of international treaties and maritime

agreements.” Locke, 529 U.S. at 102. The principal source

for international design and safety standards today is the

1974 SOLAS Convention, 32 U.S.T. 47.'' Ratified by 137

” Although it has not yet ratified the Law of the Sea

Convention, “[t]he United States has long accepted [the

Convention] as embodying international law.” U.S. DEP’T OF

STATE, DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL

LAW 675 (2001) (statement of Ambassador Sichan Siv, U.S.

Representative on the U.?. Economic and Social Council).

'' Some of the other major conventions that help contribute to

the uniformity of international maritime law are: Convention on

Load Lines, 18 U.S.T. 1857 (1966); Convention on _ the

International Regulations for Preventing Collisions at Sea, Oct. 20,

1972, 28 U.S.T. 3459; International Convention on Standards of

Training, Certification, and Watchkeeping for Seafarers, July 7,

21

nations——whose registries comprise together more than 98

percent the world merchant shipping fleet, R.R. CHURCHILL

& A.V. LOWE, supra, at 273—SOLAS “contains a large

number of complex regulations laying down standards

relating to the construction of ships, fire-safety measures,

life-saving appliances,” and a half dozen other subjects. /d.

Recognizing that international law assigns flag states

responsibility for prescribing safety and design regulations,

the Convention obligates all signatories to enact domestic

laws and regulations incorporating SOLAS’s comprehensive

standards. Thus, for example, The Bahamas’ Merchant

Shipping Act expressly provides that the SOLAS Convention

“shall have the force of law.” Bahamas Merchant Shipping

Act, ch. 246, § 185(6); see id. § 185(8) (“The Minister [of

Transportation] may make such regulations as he considers

appropriate to give effect to SOLAS * * *.”).'?

SOLAS was originally adopted in 1914 in response to the

sinking of the Titanic. See R.R. CHURCHILL & A.V. LOWE,

supra, at 265; IMO, Surviving Disaster—The Titanic and

SOLAS (graphic of Titanic disaster and provisions of SOLAS

that address safety issues related to the disaster), available at

<http://www.imo.org/Safety/mainframe.asp?topic_id=479)>.

SOLAS has been repeatedly updated since its enactment.

Revised SOLAS Conventions were adopted in 1929, 1948,

1978, 1361 U.N.T.S. 190; Convention on Facilitation on

International Maritime Traffic, Apr. 9, 1965, 18 U.S.T. 411;

International Labor Organization, Convention Concerning

Minimum Standards in Merchant Ships, No. 147, 15 I.L.M. 1288

(1976). The Bahamas is a party to each of these conventions.

'2 The Bahamas Merchant Shipping Act, which has been

amended on numerous occasions since its enactment in 1976,

governs virtually every aspect of shipping and navigation. The

Bahamas’ other principal laws regulating shipping include the

Merchant Shipping (Oil Pollution) Act of 1976, the Merchant

Shipping (Maritime Claims Limitation of Liability) Act of 1989,

and the Bahamas Maritime Authority Act of 1995.

22

1960, and 1974. Since the 1974 SOLAS was adopted, it has

been amended numerous times to keep pace with industry

concerns with respect to cruise ships and other vessels—in

1978, 1981, 1983, 1988, 1989, 1990, 1991, 1992, 1994,

1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, and 2003.

See SOLAS, available at <http://www.imo.org/ Conventions/

mainframe.asp?topic_id=257&doc_id=647>. Since 1960,

the IMO has undertaken the primary responsibility for

monitoring safety issues and proposing amendments, and the

IMO meets regularly to consider such issues. The BMA

regularly attends and participates in all committee meetings

of the IMO and, as noted, holds a seat on the governing

council of the IMO. In short, SOLAS is a comprehensive

and responsive body of international law.

International law assigns flag states principal responsibility

for enforcing these maritime design and safety standards.

See R.R. CHURCHILL & A.V. LOWE, supra, at 273. Yet unlike

the duty to promulgate those standards—which the flag states

alone enjoy—ainternational law recognizes that port states

may play a role as well by inspecting, and where warranted,

even detaining foreign-flagged ships that fail to meet

international standards. See SOLAS, Ch. 1, Reg. 11. But,

consistent with maritime law’s concern for uniformity and

predictability, those international standards are the only

standards that the port state may apply during its inspection.

Thus, even if the port state has adopted more rigorous

requirements for its own ships, it may not hold foreign-

flagged ships to that higher national standard.

A number of international conventions, including SOLAS

and ILO Convention No. 147, 15 LL.M. 1288 (1976), grant

port states primary authority for inspecting and—where

appropriate—detaining foreign-flagged ships that fail to meet

certain minimum international design standards. See id. art.

4. Based on these conventions, a number of countries have

formed regional pacts—in Europe, the Pacific, the Caribbean,

and elsewhere—that coordinate port-state inspections. The

23

oldest and most established of these regional pacts—the Paris

Memorandum of Understanding, 21 I.L.M. 1 (1982)—

compiles an annual list ranking the overall safety of each flag

state based on the number of ships from its registry that had

been detained that year. The Bahamas has consistently been

on the “Whi*. List,” reserved for “flags with a consistently

low detention record.” Paris Memorandum of Understanding

on Port State Control, Annual Report 2003 at 15, 27.

2. Applying Title III’s accessibility rules to foreign-

flagged ships would not only disrupt this carefully calibrated

international framework, but also create a violent sea of

potential clashes between United State law and the laws of

other nations—and the community of nations. Ship design is

a complex integrated process, demanding engineering

expertise and enormous economic resources. A ship’s design

cannot change every time the ship tacks for a new port. One

of the greatest virtues of international maritime law is that,

by putting in place a system of bright-line rules that are

promulgated by a single sovereign and backed by comity and

reciprocity, ships need not overhaul their architecture each

time a new country devises a new set of design standards.'°

But if a leading maritime nation like the United States

breaks from the established practice and unilaterally imposes

its own structure and design standards on foreign-flagged

ships, there is nothing to prevent every other flag state from

taking similar steps. Indeed, such a unilateral action might

prompt other nations to enact their own design codes either to

strengthen or alleviate the specifications in the United States

'> As the IMO has observed in explaining the need for an

international framework for developing safety and other maritime

rules: “(S]hipping is an international industry. If each nation

developed its own safety legislation the result would be a maze of

differing, often conflicting national laws. One nation, for example,

might insist on lifeboats being made of steel and another of glass-

reinforced plastic.” IMO, Frequently Asked Questions, available

at <http://www.imo.org/home.asp>.

24

code. Cf. McCulloch U.S. Br. 27 (Application of United

States labor law to foreign-flagged vessels “would have

significant repercussions, and could lead to reprisals against

American shipping by the flag countries involved.”). That is

one of the principal reasons this Court has _ historically

respected the law of the flag. See Lauritzen, 345 U.S. at 582

(“we cannot be unmindful of the necessity for mutual

forbearance if retaliations are to be avoided”).

Such a scenario is not unrealistic and, if it ensued, “would

raise considerable disturbance not only in the field of

maritime law but in * * * international relations as well.”

McCulloch, 372 U.S. at 19. Some 40 nations—many of them

major maritime powers’’—have enacted disabilities-

discrimination laws. At least three countries have already

promulgated accessibility standards for ferries operating on

their own registries.'° If these and other countries were to

respond to a decision by this Court extending Title III of the

'S See Theresia Degener, Disability as a Subject of International

Human Rights Law and Comparative Discrimination Law, in THE

HUMAN RIGHTS OF PERSONS WITH INTELLECTUAL DISABILITIES:

DIFFERENT BUT EQUAL 151, 167 (Stanley S. Herr et al. eds., 2003)

(listing, among others, Australia, Canada, Germany, Korea, South

Africa, Spain, Sweden, and the United Kingdom as having enacted

antidiscrimination statutes regarding the disabled); Disability

Rights Education & Defense Fund, Country Laws Index,

<http://www.dredf.org/international/lawindex.html> (listing more

than 40 countries with disabilities-rights laws).

'> See United Kingdom, Design of Large Passenger Ships and

Passenger Infrastructure: Guidance on Meeting the Needs of

Disabled People, available at <http://www.dptac.gov.uk/pubs/

guideship/index.htm>; Canada, Code of Practice, Ferry Access-

ibility for Persons with Disabilities, available at <http:// www.cta-

otc.gc.ca/access/codes/ferry/index_e.html>; Australia, Disability

Standards for Accessible Public Transport, available at

<http://law.gov.au/www/civiljusticehome.nsf/AllDocs/RWP2D7C

ECE1EA698DC4CA256C1D00001E0B?OpenDocument>. _

25

ADA to foreign-flagged ships by extending their own

disabilities laws to foreign ships, conflicts and confusion

over the specifications governing the design and structure of

passenger vessels could pervade international maritime

commerce. Quite apart from major structural differences—

such as the number of accessible elevators or cabins per

floor—conflicting standards for basic design elements—such

as the height of service counters, the circumference of hand

railings, and the angle of coamings—would make

international voyages virtually impossible. For example, the

crew of a cruise ship with 200 hand rails would need to

replace every one of those rails if the disability law in the

next port of call specified rails a quarter inch thicker.'®

The well-established international framework discussed

above is designed to prevent such intolerable results. The

international community may—as it has with many other

design standards before—develop accessibility rules for

cruise ships collectively through existing bodies like the

IMO. Notably, the first steps in such an initiative have

already been taken. In 1996, the IMO’s Maritime Safety

Committee—on which The Bahamas sits—issued a

comprehensive set of guidelines “‘on the design and operation

of passenger ships to respond to elderly and disabled

persons’ needs.” IMO, Maritime Safety Comm.,

Recommendation on the Design and Operation of Passenger

Ships to Respond to Elderly and Disabled Persons’ Needs,

MSC/Cir. 735 (June 24, 1996). Although not binding, the

IMO’s guidelines served as the basis for the accessibility

rules that the Unt * Kingdom recently established for

' It is possible to book a voyage on the Queen Elizabeth 2 for a

46-day cruise from Singapore to New York that stops in at least 16

different countries. But even a simple transatlantic voyage from

Southhampton to New York could run aground on regulation if the

United States and Great Britain each adopted and imposed a

different set of structural and design requirements on the Queen

Elizabeth and other vessels that call on their ports.

a. i

26

ferries. See United Kingdom, Design of Large Passenger

Ships and Passenger Infrastructure: Guidance on Meeting

the Needs of Disabled People, supra, at 3.

The IMO—*“{[t]he organization that has probably~had_the

most substantial direct effect upon the law of the sea,” R.R.

CHURCHILL & A.V. LOWE, supra, at 23—provides an ideal

forum for addressing this issue in a multilateral fashion. The

Bahamas participated in the discussion of the IMO’s

guidelines on access for the elderly and people with

disabilities, is monitoring the developments in other nations,

and stands ready to assist in an international response.

3. Applying Title III to foreign-flagged ships also runs

the grave risk that ship owners will be forced to reconcile

SOLAS obligations with accessibility standards issued by the

Department of Transportation. As the Department of Justice

acknowledged shortly after the ADA was enacted, “[b]ecause

of the unique structure of ships, none of the [ADA

Accessibility Guidelines for Buildings and Facilities]

technical or scooping standards are appropriate.” U.S. DEP’T

OF JusTICE, ADA TECHNICAL ASSISTANCE MANUAL § III-

5.3000, illus. 3 (1993) (emphasis added). Indeed, in its Final

Report, the Passenger Vessel Access Advisory Committee

(PVAAC) identified 98 specific conflicts between ADAAG

and the Coast Guard’s regulations implementing SOLAS.

See Recommendations for Accessibility Guidelines for

Passenger Vessels: Final Report (Dec. 2000)

(ADAAG/Coast Guard Comparison Index), available at

<http://www.access-board.gov/pvaac/ commrept/index.htm>.

And, as the Court of Appeals noted below, even after years

of studying how to apply traditional accessibility standards to

ships, the PVAAC was still identifying conflicts between

SOLAS and proposed guidelines. See Pet. App. 9a n.6.

Petitioners and their amici try to downplay the prospect of

such conflicts by arguing that, at least in their view and the

view of the PVAAC, “the newer draft guidelines recently

released by the Access Board” resolved the final conflicts.

ee

27

Pet. Br. 45. But those guidelines—released more than a

decade after the ADA was enacted and just days before the

filing of the government’s amicus brief in this case—are only

in draft form, and were issued for comment. No one knows

what will result from this project, much less when that

process will be completed. In any event, in the end, both

petitioners and the United States concede that Title III’s

accessibility rules—either those just proposed or others in the

pipeline—might conflict with SOLAS. Their solution,

however, only underscores the problem of applying domestic

design standards to ‘oreign-flagged ships in the first place.

According to petitioners, the answer to any conflicts between

Title III and international law governing ships should be left

to “expert [U.S.] government regulators.” Pet. Br. 45.

Both petitioners and the United States concede that “to the

extent that removal of an architectural barrier would conflict

with an existing treaty provision, such removal would not be

considered ‘readily achievable’ within the meaning of Title

lif.” U.S. Br. 27; Pet. Br. 42. The problem is that ship

Owners may not know wither a particular accessibility rule

conflicts with SOLAS—and is therefore not “readily

achievable”—until after a lengthy and _ expensive

adjudication. Moreover, even if a vessel owner—perhaps

after having paid for the services of an American lawyer

specializing in ADA law—makes a good faith determination

that a regulation is not “readily achievable” on his vessel, he

will still face the prospect of an ADA action the moment the

ship enters United States waters. The uncertainty and cost

created by such a regime will have a destabilizing and highly

disruptive effect on international maritime commerce.

4. It is not only the prospect of clashes between Title III

and international law that will create international discord

and confusion for foreign-flagged vessels. Currently, vessel

owners and regulators are guided by a clear set of design and

safety standards: those established by the flag state and

international conventions that the flag state has adopted. If

28

Title III were extended to foreign-flagged cruise ships, then

the owners of such vessels and flag states would be

responsible for deciphering a new code. It has taken the

Department of Justice more than a decade just to issue draft

guidelines on how Title III would apply to passenger vessels.

It could take years more for the government to issue final

rules. Before such rules are promulgated, United States

courts presumably would be required to develop structure

and design requirements on an ad hoc, case-by-case basis.

Moreover, even when final rules are issued, foreign-flagged

vessels would have to continuously monitor how they are

interpreted and applied by the hundreds of federal judges that

have jurisdiction over ADA actions. Those judges are likely

to lack expertise in the technicalities of maritime architecture —

and design. And, inevitably, United States courts will reach

conflicting rulings on the application of Title III to such

vessels. It would be difficult to devise a more disruptive and

chaotic regulatory regime for this “delicate field of

international relations.” McCulloch, 372 U.S. at 21.'’

'’ The United States suggests that the way out of =

international conundrum is to hold that Title III applies “t

foreign-flagged cruise ships, except to the extent that es

ADA requirements would conflict with a treaty.” U.S. Br. 12; see

id. at 27. That argument fails. First, it would transform the clear-

statement rule applied in this sensitive context into a narrow—and

arguably superfluous—conflicts rule. Second, it would not address

the enormous uncertainty that would exist over when such a

conflict exists in the first place. And third, it fails to account for

the fact that—quite apart from any specific conflict between Title

II] and a treaty—extending Title III to foreign-flagged vessels

would interfere with the active international framework and body

of customary international] law (not limited to, treaties ratified by

the United States) governing vessel design and Kafety.

29

F. The Wrongful Nature Of Discrimination Does Not

Sustain The Conclusion That Congress Intended To

Apply Title III To Foreign-Flagged Vessels

Relying on Wildenhus’s case and Uravic v. F. Jarka Co.,

282 U.S. 234 (1931), the United States argues that Title III

applies to foreign-flagged ships because “Title III prohibits

discrimination ‘of a nature to disturb the public peace’ and

‘of a character to affect those on shore or in port when it

becomes known.’” U.S. Br. 24 (quoting Wildenhus'’s case,

120 U.S. at 17). That argument is unavailing.

Both Wildenhus’s case and Uravic recognize the authority

of the port state-to regulate a foreign vessel that reaches its

ports. They do not trump the settled canon that Congress

does not intend to exercise such authority unless it clearly

says so. Moreover, Wildenhus’s case and Uravic have been

limited to the special contexts in which they arose.

Wildenhus 's case involved a major crime—murder—aboard

a foreign vessel in American waters. Uravic involved a

- maritime tort covered by the Jones Act, 46 U.S.C. § 688,

which has roots in the “general maritime principles of

compensation for personal injury.” Romero, 358 U.S. at 382.

Neither case supports the conclusion that Title II!]—which

neither governs major crimes nor has roots in mariti:.1.e law—

automatically applies to foreign-flagged vessels.

To the contrary, in Wildenhus’s case, the Court recognized

that the flag state has an overriding interest in the regulation

of the internal affairs of its ships. See 120 U.S. at 12. There

is scarcely any matier more closely connected to the internal

order of a vessel—or of greater interest to the “authorities of

the nation to which it belong{s],” id.—than the requirements

relating to the vessel’s structure and design. Similarly, there

is little that a port state could do that would prove more

disruptive to maritime commerce than to impose its own

structural or design requirements on the ships that enter its

waters. That disruption is the same regardless of whether the

30

port state is trying to prevent discrimination aboard the ship

or to ensure the Safety of passengers in stormy seas.

A broader reading of Wildenhus’s case would unduly

interfere with the law of nations giving primary importance

to the law of the flag. In a generalized sense, any form of

discrimination represents an affront to “public peace” and

“dignity.” But so too, it invariably will be possible to argue

that the violation of a public law affects the “public peace”

and “dignity.” Indeed, that is certainly true with respect to

labor laws designed to prevent disruptions like picketing and

boycotts. Cf Benz, supra. Yet this Court has never

subjected the jurisdictional determination of whether United

States law displaces the law of the flag state with respect to

the regulation of internal affairs to such an indeterminate and

value-laden “public peace” and “dignity” inquiry.

Instead, this Court has adopted a clear and predictable rule

to govern this crucial jurisdictional determination: in order

to “sanction the exercise of local sovereignty * * * in this

‘delicate field of international relations there must be present

the affirmative intention of Congress clearly expressed.’”

McCulloch, 372 U.S. at 21-22 (quoting Benz, 353 U.S. at

147). Title II] lacks such an “affirmative intention.”

CONCLUSION

For the foregoing reasons, the judgment below should be

affirmed.

Respectfully submitted,

GEORGE U. CARNEAL

GREGORY G. GARRE*

CHRISTOPHER T. HANDMAN

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5665

*Counsel of Record Counsel for Amici Curiae

TABLE OF CONTENTS

BMA, Flag State Performance Self-Assessment Form.............

BMA, Guidelines for BMA Approved Inspectors

Ree

App. |

THE BAHAMAS

FLAG STATE PERFORMANCE SELF-ASSESSMENT FORM

For the purposes of IMO Assembly Resolution A.881(21)

GENERAL

1. Name of State THE BAHAMAS, The Commonwealth of

2. Name of Contact Person responsible for completion of this

form

Director

Name of Administration

Bahamas Maritime Authority

Address

2nd Floor

Latham House

16 Minories

LONDON

EC3N 1EH

United Kingdor

Telephone Number

+44-20-7264-2550

Fax Number

+44-20-7264-2579

E-mail address

tech @bahamasmaritime.com

Indicate to which of the following inteffational instruments

your State is a Party and which (optional) MARPOL 73/78

Annexes have been ratified.

App. 2

SOLAS 74 ‘Yes

SOLAS Protocol 78 Yes

SOLAS Protocol 88 Yes

MARPOL 73/78 Yes

Annex III Yes

Annex [V No

Annex V_ Yes

Annex VI No

LL66 Yes

LL Protocol 88 Yes

TONNAGE 69 ss Yes

COLREGS 72 Yes

UNCLOS __ Yes

4.) How many merchant ships of 100 gross tonnage

and upwards, subject to the relevant instruments

you indicated in question 3, are currently flying

the flag of your State?

4.2 What is the gross tonnage of merchant ships

flying the flag of your State?

INTERNAL CRITERIA

Legal Framework

5. Does your Administration have the necessary

laws in force to implement international maritime

safety and pollution prevention instruments with

regard to:

1 the construction, equipment and

management of ships;

.2 the prevention, reduction and control of

pollution of the marine environment;

3 the safe loading of ships;

1,376

29.2

million

Yes

Yes

Yes

App. 3

the manning of ships;

the safety of navigation (including taking

part in mandatory reporting and routing

systems), maintenance of communications

and prevention of collisions

6. Does your Administration have the necessary

laws in force to ensure the provision of penalties

of adequate severity to discourage violation of

international instruments to which your State is a

Party?

A Does you Administration have the necessary laws

in force to provide for ship inspections to ensure

compliance with international maritime safety

and pollution prevention standards, to which your

State is a Party?

8. Does you [sic] Administration have the necessary

laws in force to take legal action against ships

which have been identified as not being in

compliance with the international instruments to

which your State is a party?

9. Does your Administration have the necessary

laws in force to carry out the required casualty

investigations?

Enforcement

10. Does your Administration have an infrastructure,

including personnel with appropriate technical

expertise and experience, to:

Yes

Yes

Yes

Yes

Yes

Yes

11.

12.

App. 4

.1 identify ships flying the flag of your State Y

which are not in compliance’ with

international maritime safety and pollution

prevention requirements?

es

.2 take action against ships flying the flag of Y

your State which have been identified as not

being in compliance with international

maritime safety and pollution prevention

requirements?

es

-If yes, against how many such ships was action taken for

each of the previous 5 years*

Appropriate action is taken in every incidence in which a

Bahamian ship is found not to comply with international

convention safety and pollution prevention requirements.

Did your Administration investigate detentions by Yes

port States of ships flying the flag of your State

for each of the previous 5 years*? (see also

question 28)

-If yes, indicate how many such detentions were All

investigated.

Recognised organisations acting on behalf of your Administration

Which organisations has your Administration recognised for

the purpose of delegation of authority under the relevant

instruments you indicated under question 3?

13.

14.

15.

App. 5

America Bureau of Shipping (ABS)

Bureau Veritas (BV)

Det Norske Veritas (DNV)

Germanischer Lloyd (GL)

Korean Register of Shipping (KRS)

Lloyd’s Register of Shipping

Nippon Kaiji Kyokai (Class NK/ NKK)

Registro Italiano Navale (RINA)

When your Administration delegates authority to Yes

recognised organisations, does it follow

resolutions A.739(18) and A.789(19) as minimum

requirements, the requirements in SOLAS 74,

regulation XI/1, and the analogous requirements

in MARPOL 73/78?

Has your Administration provided IMO with a Yes

copy of the formal agreement or equivalent legal

arrangements with the recognised organisations

listed in question 12?

Indicate which survey and/or certification functions your

Administration has delegated to the recognised organisations

referred to in question 12.

16.

17.

App. 6

Statutory surveys and certifications in

respect of

e SOLAS 74/88

e Load Lines Convention 66/88

e Tonnage Convention 69

e Marpol 73/78

Plan Approval in respect of COLREG

72

Approval of documentary aspects/

assessment of arrangements for on-

board training under STCW 1978

Type approval of containers under

SAFE CONTAINERS 1972

Certification and compliance

documentation under various IMO

codes

Verification of compliance with Code

of Safety for Caribbean Cargo Ships

Indicate, for the instruments—you listed under None

question 3, which survey and/or certification

functions are carried out by your Administration.

Does you [sic] Administration carry out the Yes

verification and monitoring functions specified in

resolution A.739 (18) ?

18.

19.

20.

21.

22.

App. 7

How does your Administration carry out the

verification and monitoring functions specified in

A.739 (18) ?

e verbal and written communication’ with

Organisations

e Organisations are required to make reports to the

Administration

e vessels are required to complete at least one

annual inspection survey performed by the 7

Administration’s inspectors

e _all authorised Organisations have quality systems

certified to ISO 9001 or equivalent standard and

also to IACS standard.

How often does your Administration verify and Every 1

monitor the work of recognised organisations month(s)

acting on its behalf?

How does your Administration take specific n/a

responsibility for international certificates issued

on its behalf by dependent territories/ second

registers?

The Bahamas has only one register and no

dependent territories.

Does your Administration have the means

(financial and administrative) to ensure that

thorough and prompt casualty and incident

investigations into all cases of serious and very

serious casualties, as defined in paragraph 4.2 and

4.3 of the Annex to resolution A.849(20), are

carried out?

For each of the previous 5 years*, for ships flying

the flag of your State:

Yes

23.

24.

25.

How many serious and very serious

App. 8

; 6 l 10 16 8

--casualties and incidents

investigated?

1999 | 1998 | 1997 | 1996 | 1995

15 12 12 7 9

2 How many such casualties and incidents

were reported to IMO?

Can your Administration provide to IMO, on

request, evidence which shows that casualties and

incidents on ships flying the flag of your State

have been investigated?

For each of the previcus 5 years*, has your

Administration provided IMO with the mandatory

annual reporting required by article 11.1(f) of

MARPOL 73/78?

How many allegations of violations, according to

article 4 of MARPOL 73/78, have been made

against ships flying the flag of your State in each

of the previous 5 years*?

1999 | 1998 | 1997 | 1996 | 1995

Jl How many investigations or legal

proceedings has your Administration

carried out in the previous 5 years* in

accordance with articles 4 and 6 of

MARPOL?

1999

1998

1997

1996

1995

6

1

10

16

8

Yes

For each of the previous 5 years*, how many

App. 9

ships flying the flag of your State:

a

have been involved in serious or very

serious Casualties?

2 In how many cases did you [sic]

Administration report back to the

reporting State or to IMO in each of the

previous 5 yrs* ?

1999 | 1998 | 1997 | 1996 | 1995

6 1 10 16 8

EXTERNAL CRITERIA

1999

1998

1997

1996

1995

15

12

12

7

9

have become total losses or constructive

total losses?

1999

1998

1997 |

1996

1995

2

6

4

2

2

have caused severe pollution**?

1999

1998

1997

1996

1995

0

0

l

0

0

What casualty rate per 1000 ships does

this represent?

1999

1998

1997

1996

1995

10

7

8

5

6

App. 10

J What is the total tonnage involved as a

percentage of the total fleet?

1999 | 1998 | 1997 | 1996 | 1995

0.14% |0.19%|0.06% |0.06% |0.06%

27. In each of the previous 5 years*, how many lives

have been lost:

Jl in casualties involving ships flying the flag of your

State?

1999 | 1998 | 1997 | 1996 | 1995

l 2 5 9 4

2 due to occupational accidents (i.e. other than from

casualties to ships) on ships flying the flag of your

State?

1999 | 1998 | 1997 | 1996 | 1995

5 6 9 7 4

NB — Includes: falls; boarding or disembarking;

accidents on deck and in machinery spaces;

deaths in enclosed spaces; but does not include:

accidents ashore; homicide; suicide; or deaths

form [ disease or natural causes.

a cm For each of the previous 5 years*, how 91/year

many ships flying the flag of your State (average)

were detained, within the scope of

SOLAS 74, MARPOL 73/78, LL 66 or

COLREGS 72, by port States?

App. 11

2 What detention rate per 1000 ship 34 per

inspections does this represent? (see also 1000

question 11) ships/

year

* or from the date your Government became a Party to the relevant

instrument, if that is later.

** “Severe pollution” is a case of pollution which, as evaluated by the

coastal State(s) affected of the flag State, as appropriate, produces a

major deleterious effect upon the environment, or which would have

produced such an effect without preventive action.

Bahamas Maritime Authority

Guidelines for Inspectors

App. 12

GUIDELINES FOR BMA APPROVED INSPECTORS

Contents

1.0 Introduction and General Information

1.1 Introduction

1.2 Definitions

1.3 BMA Mission

1.4 Purpose of the Inspectorate

1.5 Quality of Inspections

2.0 The Role of a BMA Inspector

2.1 General Role

2.2 Powers of an Inspector

3.0 Inspections

3.1 Inspection Policy

Does Aims and Process of Inspections

3.2.1 Aims

3.2.2 Process

3.3. _ Inspection Category

3.3.1 Pre-Registration Inspection

3.3.2 Completing the Pre-Registration Inspection

Process

3.3.3 Initial Inspection

3.3.4 Annual Inspection

3.3.5 Completing the initial and annual Inspection

Processes

4.0 Attending Vessels under PSC Detention

4.1 General

4.2 Actions to be taken by Inspectors

4.2.1 Vessel detained

4.2.2 Vessel released

Bahamas Maritime Authority

Guidelines for Inspectors

App. 13

5.0 Other tasks for Inspectors

5.1 Registration

6.0

7.0

1.0

1.1

1.2

apply.

5.2

5.1.1 Stamping and Signing of Carving & Marking

5.1.2 Endorsement of Registration Documents

5.1.2.1 Vessel Name or Tonnage

5.1.2.2 Owners’ Name and Address

Verification of existence of Annual Inspection

Certificate

Accident Investigation

6.1

General

Appendices

Appendix A - Inspection Report

Appendix B - Accident Investigation

Introduction and General Information

Introduction

These guidelines address the framework within which Inspectors will

normally be required to operate. The purpose of this document is to

consolidate BMA information, policy, and existing practices into a

single document offering guidance to Inspectors. It is intended that

this document will enable world-wide standards and procedures of all

BMA Inspections to be carried out and reported with uniformity.

Definitions

For the purpose of these Guidelines the definitions given hereunder

BMA: The Bahamas Maritime Authority.

Vessel: Any Bahamian registered vessel.

Candidate vessel: Any non-Bahamian registered vessel

intended for The Bahamian Register.

Inspector; An Approved Nautical Inspector who, as an

employee of the Inspection Company, has been duly authorised

Bahamas Maritime Authority

Guidelines for Inspectors

App. 14

by the BMA to act on its behalf in accordance with the terms

of the “Agreement”.

* Agreement: The terms agreed between the BMA and the

Inspection Company under which the Inspection Company,

will undertake Inspection services on behalf of the BMA.

¢ Inspection Company: A signatory to the Agreement and

employer of the Inspector.

* Inspection: A Pre-Registration Inspection or Initial Inspection

or Annual Inspection.

* Port State Control (PSC): A Coastal Authority authorised ,

under a Regional Memorandum of Understanding in

conjunction with the International Maritime Organisation

(IMO), to inspect any vessel operating in its national waters.

* Port State Detention: The situation where a vessel has been

detained by PSC.

* Anniversary date: The date on which the vessel was first

inspected by the BMA, regardless of the date on which the

Inspection Certificate was issued.

* Inspection Certificate: A certificate issued to a vessel

signifying that it has undergone a satisfactory Bahamas

Inspection.

¢ Authorised Classification Societies: Eight Classification

Societies authorised to act on behalf of the BMA namely:-

Lloyds Register of Ship; ing

Det Norske Veritas Korean register of Shipping

Bureau Veritas

Germanischer Lloyd

American Bureau of Shipping

Nippon Kaiji Kyokai

Registro Italiano Navale

Korean Register of Shipping

Bahamas Maritime Authority

Guidelines for Inspectors

App. 15

1.3 BMA Mission Statement

The BMA is committed to maintaining high standards of safety and

environmental protection and to implement and uphold international

Convention standards for the vessels under its administration and to

enforce such standards fairly.

1.4 Purpose of the Inspectorate

The BMA appoints Inspectors to assist it in fulfilling its function as a

responsible Flag State Administration. The purpose of making these

appointments is to facilitate the inspection of or attendance on board

any vessel or any candidate vessel in a timely and cost-effective

manner anywhere in the world. Inspection will normally be in

connection with assessing the vessels condition, onboard safety

standards and technical and operational integrity; other attendance will

normally be in connection with registration requirements, to carry out

a casualty investigation or to represent the BMA at a Port State

detention.

15 Quality of Inspections

It is intended that the quality of inspections should follow best

industry practice. In most parts of the world there is now a

coordinated approach to PSC through regional Memoranda of

Understanding, this means that most ships will now undergo at least

one PSC inspection during the course of any year. BMA Inspections

shall endeavour to minimise the risk to a vessel of being detained

following a Port State Inspection. This is not only to uphold the

standards of the BMA but also to provide Owners with confidence that

their vessels will pass any PSC Inspection, also that the work

performed by the Classification Society is of an acceptable standard.

2.0 The Role of a Bahamas Inspector

2.1 General Role

An Inspector acting on behalf of the BMA may be required to carry

out 6 tasks:

Bahamas Mariume Authority

Guidelines for Inspectors

App. 16

i. To conduct pre-registration inspections on candidate vessels of

12 years or older.

ii. To conduct initial inspections on vessels of under 12 years of

age.

iii. | To conduct annual inspections on all vessels.

iv. To attend and render general assistance on vessels detained by

PSC.

v. To conduct other tasks as required by the BMA in connection

with:- vessel registration; carving & marking; endorsement of

certificates; verifying the existence of an Inspection Certificate

etc.

vi. Toconduct accident investigations.

All of the above should be conducted either in accordance with

standing instructions in these notes, or special instructions issued by

the BMA for a particular case. Items 2.1.i, ii & iii are normally carried

out at the request of the owner as required by the BMA, whereas

instructions to carry out 2.1.iv, v & vi will normally be given by the

BMA.

When undertaking annual inspections, Inspectors are required to

monitor the work of the Classification Societies. Therefore, an

Inspector must never assume that simply because a Classification

Society Surveyor has carried out an onboard survey, that a BMA

Inspection is not required. When a Classification Society Surveyor is

onboard a vessel at the same time as a BMA Inspector, it is preferable

that that their respective tasks are carried out independently of one

another.

Any Inspector undertaking work on behalf of the BMA is obliged to

be knowledgeable about the type of vessei to be inspected, relevant

Codes and International Conventions, the standards that should be

attained by Classification Societies and with the general standards

demanded by Port State Control. In order to promote high standards

generally, all Inspectors must have the necessary professional

qualifications, experience and competence as set out in the Agreement.

Bahamas Maritime Authority

Guidelines for Inspectors

App. 17

2.2. Powers of an Inspector

An Inspector is entitled to board any vessel at any reasonable time

provided he can produce proper identification. Normally an Inspector

should only board a vessel when he has been requested to do so either

by the owner to carry out a specific inspection, or by the BMA.

When given specific written instructions by the BMA, an Inspector

shall remove from a ship the Registration Certificate or any other

Statutory Certificate.

3.0 Inspections

3.1. ‘Inspection Policy

Vessels under 12 years of age, are required to undergo an Initial

Inspection following provisional registration, and before permanent

registration is awarded.

Candidate vessels over 12 years old (and under 20 years) require a

Pre-Registration Inspection before permanent registration is awarded.

Candidate vessels over 20 years of age will not normally be granted

Bahamas Registration. If, in exceptional circumstances, due to its type,

history and condition, it is decided to consider a candidate vessel over

20 years of age, then it will be required to undergo a documentation

review in London Office. Normally, if the documentation review is

successful it will be followed by a Pre-Registration Inspection and

upon satisfactory completion the vessel may be offered provisional

registration.

In such cases, a Pre-Registration Inspection would not normally be

initiated before the outcome of the documentation review is known.

Registered vessels are required to undergo an Annual Inspection on or

around their anniversary date.

The intent and scope of Inspections is set out in section 3.3.

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The following ships are exempt from the inspection provisions of

these Guidelines:

i. Ships solely engaged in fishing

ii. Pleasure yachts

ili. | Ships registered under: The Bahamas Port Authority Act, The

Bahamas Boat Registration Act and The Bahamas Water-

Skiing and Motor Boat Control Act.

3.2 Aims and Process of Inspections

The following aims and processes apply to all categories of

Inspections;

3.2.1 Aims

i. To ensure that all vessels and candidate vessels comply with

international Convention standards;

li. To verify that safety management, vessel operation,

maintenance and mechanical condition are being upheld in

accordance with good industry practice;

iii. | To monitor the standard of work carried out by the vessel’s

Classification Society in executing its obligations to carry out

Statutory surveys;

iv. To ensure that vessel standards meet the inspection

requirements of any PSC.

3.2.2 Process

i. To check the validity of all statutory certificates, documents,

publications, Class survey status reports, and ISM

documentation;

ii. To consult with the Master and Chief Engineer (and any other

personnel with whom consultation may be deemed beneficial)

in order to be reasonably satisfied that they possess knowledge

and experience relevant to their positions on board the vessel;

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iii. To perform a physical inspection of the vessel in order to

ascertain its overall condition, maintenance standards,

operational integrity and onboard safety standards;

iv. To witness emergency drills and functional checks on safety

critical machinery and equipment;

v. Before leaving the vessel to de-brief the Master and Chief

Engineer and provide them with a signed written summary of

deficiencies and/or significant observations;

vi. On completion of a satisfactory inspection, to issue a

Certificate of Inspection to the Master. In the event that the

inspection proves unsatisfactory an alternative course of action

may be considered necessary (see section 3.3.5).

vii. | Following departure from the vessel, to notify London Office

by telephone or fax of any concerns and promptly prepare and

dispatch a detailed report, including a comprehensive set of

photographs.

3.3. Inspection Category

Three categories of inspection (see section 2.1.i.ii.iii) are discussed

below. The format and scope of each category of inspection will be in

accordance with the Inspection Report and guidance therein. The

Inspection report along with guidance on the required scope of

inspections is discussed in Appendix A.

3.3.1 Pre-Registration Inspection

The purpose of a pre-registration inspection (for candidate vessels

over 12 years of age) is to assist the BMA in reviewing an Owner’s

application to join the Register; the primary aim of the inspection is to

assess the physical condition and safety standards of a candidate vessel.

Whilst an assessment of the vessel’s operational integrity is also

required, occasionally a pre-registration inspection will be undertaken

before a vessel changes ownership and it will not be possible to fully

assess certification, publications, manning and procedural / policy

aspects of the vessel. Inspectors should do their utmost to complete a

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substantial part of the Inspect Report, leaving the reader in no doubt as

to the vessel’s physical condition and the standard of safety

construction, safety equipment and pollution prevention onboard the

vessel.

If a candidate vessel is not undergoing a change of ownership before

registration then the format of the Inspection will follow the full scope

of the Inspection Report. It is intended that the inspection will be

rigorous, however the level at which the inspection is carried out will

be determined by the Inspector’s professional judgement, based on his

general observations and instinctive impression of the vessel.

However, where older or apparently poorly maintained vessels are

concerned then extensive coverage of all sections of the Inspection

Report will be mandatory.

Inspection items which require verification after a change of

ownership has taken place should be clearly highlighted in the

Inspection Report.

Note that the candidate vessel being inspected will not be in

possession of Bahamas Statutory Documentation and Carving &

Marking Note; moreover it may not be Classed by one of the

Authorised Classification Societies. These items will need to be re-

inspected on a separate occasion and this requirement shouid be

clearly highlighted in the pre-registration inspection report.

3.3.2 Completing the Pre-Registration Inspection Process

The completed report form, including recommendations and corrective

actions should be forwarded promptly to London Office, together with

photographs of the candidate vessel. In order to accelerate the report

review process, inspectors are requested to fax (or e-mail) a copy of

the report in advance of the mailed report.

3.3.3 Initial Inspection

The initial inspection shall be carried out within six months of a vessel

being awarded provisional registration.

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The purpose of the Initial Inspection (for vessels under 12 years

holding provisional registration) is to confirm that a vessel satisfies the

physical and safety standards required by the BMA and in addition can

pass a thorough examination of documentation, operational and

manning requirements.

Vessels under initial inspection must be Classed with one of the

Authorised Classification Societies and be in possession of Statutory

Certificates issued on behalf of the Bahamas.

Upon satisfactory completion of an Initial Inspection a vessel will

normally be awarded permanent registration status.

The scope and reporting requirements for initial Inspections will be as

described for pre-registration Inspections, also the extent to which

inspectors will wish to carry out a detailed examination of the vessel

will be determined by their professional judgement, based particularly

on the vessel’s age and initial indications.

3.3.4 Annual Inspection

Annual Inspections are required for permanently registered vessels.

Inspections fall due on a vessel’s anniversary date (the date upon

which either the Pre-Registration inspection or the Initial Inspection

were held) and may [sic] carried out within a 3 month period before or

after the anniversary date. This is to allow the Owner some flexibility

to have an inspection when it is operationally convenient.

Regardless of when the Inspection is actually undertaken, the date on

which the next inspection falls due will remain fixed at 12 months

after the anniversary date.

The objective of the Inspection is the ongoing verification of a vessel’s,

standard of maintenance and operational safety and its compliance

with international Convention standards, to monitor the effectiveness

of the Classification Society in carrying out statutory work on behalf

of the BMA and to monitor the vessel’s overall status in relation to

PSC requirements.

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The Inspection should provide both the BMA and the Owner with a

comprehensive impression of the vessel according to the above criteria

and to identify any shortcomings or deficiencies requiring corrective

action.

Whilst the scope of the inspection will follow that set out in the

inspection report, the required level of detailed examination will

normally depend on the vessel type, age, history and importantly the

Inspector’s professional judgement. 'nspectors shall nevertheless be

particularly cognisant of vessels of 12 years of age or older.

The standard of the Inspection should be such as to verify compliance

with applicable rules and regulations so as to minimise any likelihood

of the vessel becoming the subject of a PSC detention. It is

impracticable to define a sub-standard ship solely by reference to a list

of qualifying defects. An Inspector snould use his professional

judgement to determine whether a vessel is at risk; whether to make a

recommendation to stop the vessel going to sea until the deficiencies

are corrected or whether to allow it to sail with deficiencies that are

not vital to the safety of the ship, its crew or passengers, having due

regard to the particular circumstances of the intended voyage.

3.3.5 Completing the Initial and Annual Inspection Processes

On completion of both the Initial and the Annual Inspection it will be

necessary for the Inspector to decide which of the following two

categories applies to the vessel and hence what action to take before

leaving the vessel:-

(a) No serious deficiencies reported: - The vessel is considered

satisfactory and the Inspector may issue an Inspection Certificate to

the Master together with a written summary of any observations or

minor corrective actions required. When an Inspection Certificate is :

issued its expiry date should equate to the vessel’s inspection

anniversary date and not necessarily to a full 12 month period. The

inspection anniversary date may be obtained from London office. It is

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not permissible to issue a conditional or short term Inspection

Certificate under any circumstances;

(b) Deficiencies reported: In the event of an unsatisfactory

inspection then Inspectors should decide on one (1) of the following

three options:-

(i) It is possible to correct the deficiencies before the vessel sails:

The Inspector should offer to return to the ship to sign off

corrective actions and if satisfied to issue an Inspection

Certificate to the vessel (see 3.3.5 (a));

(ii) It is not possible for the vessel to correct the deficiencies before

sailing: Provided that the deficiencies do not constitute a serious

risk to the safety of the vessel and its personnel, the vessel may

be allowed to sail. An Inspection Certificate should not be issued.

The Master should be informed in writing (using the form

SAFESUM) that another inspection has to be carried out at the

vessel’s next port of call. Inspectors should promptly advise

London office by fax, copying the Vessel’s Managers.

Note: Situations may arise where the corrective action would

require input by the BMA eg. issuance of a safe manning

certificate or Bahamian officer’s licences. Such situations would

not normally require another inspection. The Master should be

instructed to follow up the required action; if no other corrective

action is required then an Inspection Certificate should be issued.

(iii) The deficiencies are such that in the opinion of the Inspector the

vessel should not be allowed to sail in its present condition:

Under no circumstances should a Safety Certificate be issued.

Inspectors should immediately consult with London Office who

may authorise the Inspector to remove Certificates from the

vessel and effectively detain it until repairs have been carried out

and the vessel re-inspected.

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4.0 Attending Vessels under PSC Detention

4.1 General

A detained vessel reflects badly on The Bahamas Maritime Authority.

Every detention requires follow-up action. It is mandatory that any

action taken by the BMA shall be reported to the detaining state, to

IMO and to the Classification Society (if it has been party to the

detention).

If a detention is notified to the BMA whilst the ship is still under

detention, then it may be necessary for an Inspector to attend the

vessel during the detention. In such situations attendance by an

Inspector shall only be undertaken on the instruction of London Office.

An inspector attending a PSC detention should try to ascertain whether

the reported deficiencies should have been highlighted by recent Class

surveys or Bahamas Inspections.

4.2 Actions to be taken by the Inspector

The following procedure should be adopted by Inspectors attending a

detained vessel.

4.2.1 Vessel detained

An attending Inspector will receive instructions from London office in

connection with the vessel’s circumstances and the information that he

will be required to report. BMA London Office will notify the

vessel’s Owner and arrange for the Inspector to attend the vessel.

BMA London Office will also liase directly with Classification

Society and ISM issuing authority (if applicable and if a different

organisation from Class) in connection with the PSC detention.

The inspector should report to London office by telephone once a

preliminary assessment of the situation has been made. A joint

decision regarding further action will be taken at the time.

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Although in general the Inspector should try to facilitate the vessel’s

release from detention, under no circumstances should he be party to

its departure until all necessary corrective actions have been carried

out.

If either the Owner or Master show any inclination to omit any

necessary work or to leave before everything is in order, the inspector

should seek authorisation to remove the vessel’s Statutory Certificates

and Certificate of Registry.

On completion of the above tasks a written report should be submitted

to London office.

4.2.2 Vessel released

Circumstances permitting, it is recommended that if in doubt about the

vessel’s integrity then an inspection should be carried out to the level

of an Annual Inspection. This will have the dual effect of conveying

the actual condition of the vessel to Owners and to the BMA and

recommending corrective action of any deficiencies that the Inspector

feels would be in the Owner’s interest in order to avoid further risk of

detention by other PSC Authorities.

If the detention appears to be unjustified, then London office should be

informed in order that an appeal may be lodged with PSC.

5.0 Other tasks for Inspectors

5.1 Registration

From time to time Inspectors may be required to carry out ancillary

tasks in connection with the vessel registration:

5.1.1 Stamping and Signing of Carving and Marking Notes -

Carving and Marking Notes are issued to Owners by the BMA

Registrar. During his attendance onboard the vessel, the Inspector is

required to witness both the internal and external Carvings and

Markings and to endorse the Note accordingly. Inspectors should

ee

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immediately fax a copy of the endorsed Carving and Marking Note to

the Registrar, with the original to follow by mail.

Where a Carving and Marking is to be witnessed then it should be

understood that the BMA requires that the vessel’s name and port of

registry marked on the outer hull shall be marked conspicuously and

permanently, ie. not simply painted over the old marks; weld beading

or equivalent should be employed.

Where, for justifiable reason, e.g. hot-work requires a tanker to be gas

freed, an Owner/Master feels that this requirement cannot be met, the

BMA should be notified stating reasons and advising a date and place

where it is intended to implement permanent changes to hull markings.

The BMA may then authorise painted marks to be accepted as

temporary markings. Inspectors are not authorised to accept such

temporary marks without approval.

Similarly the vessel’s official number and registered tonnage should

be permanently marked inboard in a conspicuous position. A

dispensation from this requirement will only be permitted through

consultation with London office.

5.1.2 Endorsement of Registration Documents

Typical Registration Documents that routinely require to be endorsed

onboard a vessel by an Inspector are; Registration Certificate, Safe

Manning Certificate, Safety Radio Certificate. Any endorsement of a

vessel’s Registration Document is to be undertaken by an Inspector

only upon receipt of written authorisation by the Registrar or person

deputising for the Registrar.

5.1.2.1 Vessel Name or Tonnage

Upon instructions from the Registrar, Registration Documents may

require to be endorsed with a change of vessel name or tonnage in

accordance with the completed Carving and Marking Note. Copies of

endorsed documents should be immediately faxed to the Registrar.

The original documents should be retained onboard.

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5.1.2.2 Owner’s Name and Address

Upon instructions from the Registrar, Inspectors may be required to

endorse Registration Documents with a change of Owner’s name and

address. Copies of endorsed documents should be faxed to the

Registrar, original documents should be retained onboard.

5.2 Verification of existence of a valid Inspection Certificate

i. Vessel Inspection dates are communicated to vessel owners by

the BMA and owners are thereafter [sic] it is an owners

responsibility to arrange for a timely inspection of the vessel to

be carried out. If a vessel’s Annual Inspection appears not to

have been carried out within 15 months from the vessel’s

anniversary date, then an Inspector may be called upon to attend a

vessel in order to ascertain whether the vessel has been inspected

or not. This situation may have arisen due to an oversight by the

previous Inspector in not submitting an inspection report, or

because the Owner has neglected to arrange for an inspection to

take place.

The BMA will normally notify the vessel’s owner in advance that

an Inspector will be attending the vessel and the reason for his

attendance.

When the Inspector goes onboard, he should explain the purpose

of the visit to the Master and ask to sight a copy of the latest

Annual Inspection Report and Safety Certificate.

ii. If a valid Inspection Report and Safety Certificate are available,

then the Inspector should note the name of the Inspector who

performed the inspection, the port at which it was carried out and

the date of Inspection. The visit can then be concluded.

iii. If a valid Inspection Report and Inspection Certificate are

unavailable, then a request should be made to sight all of the ,

vessel’s certificates (see the SAFECERT section of the Inspection

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Report Form) including the vessel’s Registration Certificate,

Class and Statutory Certificates: -

- The Inspector should inform the Master that the vessel requires

an immediate Annual Inspection and obtain his agreement for

the inspection to be undertaken forthwith. At the same time,

Inspectors should report the situation to the London office and

be guided accordingly.

- If any of the vessel’s Statutory Certificates are found to be

invalid the Master should be instructed to have the necessary

surveys carried out by Class prior to sailing and verified by the

Inspector. If the Master is unable to comply with this request,

then the London office should be consulted immediately.

6.0 Accident Investigation

6.1 General

When an Inspector is requested to carry out an accident investigation

he should follow the Guidelines in Appendix B, in addition separate

instructions will be issued dealing with the specific requirements of

the case in question.

7.0 Appendices

Appendix A - Inspection Report

General

The following notes, to be read in conjunction with Section 3.0 of the

Guidelines, are intended to assist Inspectors in carrying out inspections

and presenting a report and comments in a standard structured format.

The Inspection Report Form has been compiled as a stand-alone

document.

All Inspections will follow the format set out in the Inspection Report

Form. The Report Form comprises the following sections:

SAFEDAT - general vessel information

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SAFESUM - summary of findings, | copy to be left onboard

SAFECERT~ -_ standard certificate questionnaire

SAFENAV - Navigation equipment

SAFECREW -_ crew management

SAFEDECK -_ hull, decks and fittings

SAFEQUIP~ - lifesaving apparatus & fire fighting equipment

SAFENG - machinery spaces

SAFEPASS~ - passenger ship supplement

SAFETANK .-_ tanker, chemical & gas carrier supplement

During the limited time available onboard it will not be possible to

inspect every item closely, nor should it be necessary to do so. For

Initial and Annual Inspections, a preliminary cursory look around the

vessel will indicate whether the vessel is being operated and

maintained correctly. Assumiug positive indications, then the physical

inspection procedure should be a sampling process rather than a

detailed item by item examination. A more rigorous approach,

particularly with regard to physical condition, will be required for Pre-

registration Inspections.

Inspectors shall apply standards to inspection and reporting that are

consistent with the stated aims and objectives of the BMA

(Section 3.2.1). On completion of the inspection, the Inspector should

summarise, on form SAFESUM, any deficiencies or observations

arising and issue a copy to the Master before leaving the vessel.

Inspection Reports should be completed in triplicate by the Nautica!

Inspector, the original should be forwarded to London Office, with one

copy being forwarded to Owners (except with pre-registration

inspections where Owner’s may request a copy from London Office)

and the remaining copy being retained by the Inspector. Photographs

should be included as part of Pre-registration and Initial Inspections,

but need not be included with Annual Inspection Reports.

The Inspection Report Form has been formatted to enable it to be

compiled electronically. It is expected that both Inspection Reports

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and photographs shall be increasingly communicated by e-mail,

therefore all Inspectors will be expected to acquire the necessary

resuurces to accomplish this objective in the shortest possible time. It

is intended that subsequent revisions to any section of the Report Form

will be distributed to Inspectors by e-mail.

In general, all Inspections shall include the following function tests on

critical items:-

- Witnessing of fire drill, boat muster and lowering of at least one

lifeboat, provided that local port regulations permit;

- Activation of main and auxiliary steering controls;

- Changeover and operation of emergency steering gear;

- Starting of emergency generator;

- Remote starting of emergency fire pump;

- Operation of a sample of ventilation fan dampers.

Content of Report Form

The Inspection Report is divided into ten sections namely:-

(i)

(ii)

Vessel Data (SAFEDAT): In addition to recording vessel data,

Inspectors should ensure that that their recommendation is

recorded and that the data sheet is signed and dated by the

Inspector (also stamped) and by the Master or an Owner's

representative.

Summary of observations and action items (SAFESUM): A

copy of this page should be issued to the Master before the

Inspector leaves the vessel. It is extremely important that any

observation or deficiency requiring corrective action, or any item

that is reported negatively in any of the following eight sections

of the Report should be clearly highlighted in this summary

section.

(iii) Certificates and Documents (SAFECERT / SAFEDOC): Original

Certificates should be sighted along with the documents and

publications required to be carried on board Bahamian vessels. It

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(iv)

(v)

App. 31

is not necessary to physically check every document and

publication, the presence of these may be verified by sampling

and by sighting the ship’s document check list. Note that further

information relating to documents and publications required on

Bahamian ships can be obtained from the publication “An

Officer’s Guide to the Merchant Shipping Legislation of the

Bahamas”, a copy of which should be on board.

Navigation (SAFENAV): Bridge organisation and procedures,

passage planning and the professional application of ship

handling and navigation practices should be evident. Bridge

equipment and radio communications equipment should be

witnessed as fitted and confirmed .o be in good operating

condition either verbally by ship’s staff, by log book / test record

entries, or by operation. Inspectors should ascertain that

periodical checks of navigation equipment are made at sea.

Inspectors are not normally required to test bridge equipment.

Bridge Procedures Guide and Standing Orders, including

Master’s Night Order Book, should be sighted to ascertain that all

officers are certain as to their responsibilities.

Log books, passage planning and corrected charts should be

inspected in order to ascertain whether actual procedures

reasonably follow the vessel’s Bridge Procedures Guide.

Manning & STCW (SAFECREW): The vessel’s actual manning

should be checked to ensure that it meet the Minimum Safe

Manning Certificate requirements. Also the schedule of watch-

keeping and rest periods should be sighted to ascertain that

normal work hours and rest periods are such as to minimise

fatigue and comply with regulations. The ability of officers and

crew to communicate in a common language should be noted,

also the presence of English Language signs and notices around

the vessel. The Official Log Book, Oil Record Books and Muster

Lists must also be available in the English language.

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App. 32

Inspectors must check visually whether all officers possess valid

certificates of competency and related Bahamian licences (watch-

keeping officers) relative to their rank, including any required

endorsements eg. dangerous cargo endorsement, pertaining to the

particular type of vessel being inspected. Evidence of application

for a Bahaman License should be available if a current licence is

not held.

Where a radio officer is not carried (as permitted by the safe

Manning Certificate) at least one deck officer, other than the

Master, should be in possession of both a national and a

Bahamian GMDSS Operator’s Certificate.

A visual check should be made of officer and crew certification,

training and documentation in order to ascertain that it is in

accordance with STCW 95, bearing in mind the transitional

arrangements, including familiarisation and basic safety training,

GMDSS, fire fighting, survival craft, tanker safety, passenger

ship training and medical care.

Hull weather decks & superstructures (SAFEDECK): For Pre-

registration Inspections and Initial Inspections, safe conditions

permitting, a careful examination should be undertaken [sic]

selected hold spaces, cargo tanks, ballast tanks and void spaces

for signs of damage, wastage, coating breakdown and indicative

standards of maintenance.

During an Annual Inspection it is not normally necessary to carry

out an in-depth inspection of the vessel’s structure. It will be

necessary to observe the general condition and appearance of the

outer hull, deck plating, structures and fittings, ladder-ways,

guard-rails, pipe coverings etc.

Signs of extensive damage, wastage, cracking, detachment,

deformation or stiffening in decks and hull may warrant closer

examination at the discretion of the Inspector. Any areas which

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in the Inspector’s opinion may give cause for concern should be

photographed ard noted in SAFESUM.

(vii) Safety equipment (SAFEQUIP): The effectiveness of life saving

appliances depends on good maintenance by the crew and their

use in regular drills. The lapse of time since the last Safety

Equipment Survey can be particularly important if the equipment

has not been properly maintained and regularly operated by the

ship’s crew.

A representative sample of lifesaving apparatus should be

checked and an indication obtained that that the required number

of life saving apparatus is on board.

With reference to lifeboats, Inspectors should check for obvious

defects such as holed boats, seized components or malfunction of

equipment. Checks should be made for signs of disuse of or

obstructions to boat launching equipment; for example, paint

accumulation, seizing of pivot points or braking devices, lack of

greasing and poorly maintained blocks and falls may give cause

for concern. Lifeboats should be correctly stored with fuel, food

rations, water, spare parts and basic tools.

If in the opinion of the Inspector the life saving equipment

onboard the vessel is considered to be below the required

standard then this should be treated as a serious deficiency.

With regard to fire fighting equipment, the availability, condition

and inspection dates of portable extinguishers, fire hoses, hose

boxes and appliances, especially in the accommodation, galley

and public areas is, particularly important.

Similarly, attention should be given to the effectiveness of escape

routes by ensuring that vital doors are not normally locked and

that alleyways and stairways are not obstructed.

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’ Guidelines for Inspectors

Guidelines for Inspectors

App. 34

The availability and condition of fire pumps and ventilation

closing devices are to be regarded as being of primary importance

to the fire-safety of the vessel.

If in the opinion of the Inspector the standard of fire fighting

equipment and/or the fire risk onboard the vessel is considered to

be unacceptable then these should be regarded as serious

deficiencies.

ISM Code:

The ISM Code was introduced in order to ensure the safe

operation of the ship and also provide a direct link with the most

senior management via a “Designated Person”.

The following ships are required to carry valid ISM Code

certification:

All passenger ships, inciuding passenger high speed craft, oil

tankers, chemical tankers, gas carriers, bulk carriers and cargo

high speed craft of 500 gross tonnage upwards

Other cargo ships and mobile offshore units of 500 gross tonnage

and upwards will be required to carry valid ISM Code

certification not later than 1 July 2002, though such vessels may _

have such certification ahead of the dead line

Inspectors should be familiar with the ISM Code and during their

time onboard should note any inconsistencies with the

requirements of the Code. It is necessary to confirm the presence

of an ISM Safety Management System (SMS), however it is not

necessary to examine the SMS documentation.

Inspectors are required to verify that the following ISM Code

Certification is displayed in a prominent position: -

- A copy (photocopy or faxed copy) of the Document of

Compliance (DOC), or Interim DOC, issued to the Company

responsible for the safe operation of vessel and

App. 35

- An original Safety Management Certificate (SMC), or Interim

SMC, issued to the vessel.

- The name and location of the Designated Person Ashore

(DPA)

Additionally, Inspectors are required to verify that:-

- The DOC and SMC are valid and have been issued on behalf

of the Bahamas (not another administration);

- The DOC and SMC have been issued by either one of the

eight BMA recognised Classification Societies, or an

approved administration (this information should be obtained

from the BMA);

- The name of the Company on the DOC and SMC is the same

as that operating the vessel, and whose Safety Management

System documentation is onboard;

- The DOC specifies that the Company is permitted to operate

the type of ship that is being inspected;

- The ship particulars on the SMC are correct;

- Except for Interim ISM Certificates, that Page 2 of the DOC

and SMC have been endorsed, indicating that periodical

audits have been carried out in a satisfactory manner and the

validity of the DOC and SMC is being maintained.

Note: a +/- 3 month window is applicable for annual

company audits

(viii)Machinery Spaces (SAFENG): The condition of the machinery

and electrical installations should be such that they are capable of

providing sufficient continuous power for propulsion and

auxiliary services. Through consultation with personnel along

with a careful inspection of the machinery spaces, Inspectors

should ascertain the availability of standing orders and

emergency procedures, the availability of critical machinery,

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(x)

App. 36

safety & fire-fighting systems, the presence of effective pollution

prevention control measures and that safe working practices and

procedures are being adhered to. During the inspection of the

machinery spaces the Inspector should form an impression of the

standard of house-keeping and maintenance being practised.

Passenger Ship supplement (SAFEPASS): This supplement

should be used, in addition to the foregoing sections, when

inspecting Passenger Vessels or Passenger Ro-Ro Vessels.

Inspectors should familiarise themselves with the vessel’s fire

detection and alarm systems, fire fighting systems, fire door and

watertight door arrangements. Tcst records should be sighted to

ascertain that all equipment is being tested periodically. Sample

function testing of fire and water-tight doors and alarms should

be carried out, as well as a general visual inspection to ascertain

that good standards of maintenance are being applied.

Communication systems, signals, notices, and guidance to

passengers in the event of an emergency also need to be to the

satisfaction of the Inspector. Emergency exits, particularly from

public spaces, should be seen to be unobstructed and not able to

be locked under any circumstances.

Procedures for crowd control, mustering and evacuation should

be witnessed and there should be evidence, probably log entries,

that the procedures are being followed in practice and that drills

are held onboard as necessary.

Oil and Chemical Tankers, Gas Carrier supplement

(SAFETANK): Before entering a pump room or other enclosed

space the atmosphere should be tested in the presence of the

inspector with portable gas /O2 analysers.

Particular attention should be paid to pump rooms on oil and

chemical carriers and to cargo compressor rooms on LPG/LNG

carriers. All pump and compressor seals should be tight with no

leakage, ventilation systems should be working at the time of the

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Guidelines for Inspectors

App. 37

inspection, light fittings and switches should be of an approved

gas tight type, bilges should be clean. Ventilation flaps or

devices should be operable. If the cargo-pump or compressor

prime movers are located in the engine room or in a separate

motor room then bulkhead seals should be in good condition and

free of leakage.

If the inert gas plant is in use at the time of inspection, the plant,

deck non-return valve and deck seal should be inspected and the

oxygen recorder / alarm in the CCR should be sighted. The inert

gas log for previous voyages should be inspected in order to

check the O levels under normal running conditions.

The Emergency Shut Down (ESD) system test log should be

sighted to ensure that the ESD is working satisfactorily.

On tankers, the cargo venting system, PV systems, IG lines, mast

risers, high velocity vents and vent stacks should be seen to be in

a satisfactory condition.

In gas carriers tank domes and associated fittings and deck

pipelines should be in a satisfactory physical condition and free

of leakage and gas detectors should be operational as shown on

the test and calibration records.

Appendix B - Accident Investigation

Administration of investigations

All matters relating to accidents to ships and investigation of accidents

should be addressed to the London office of the Authority. The

emergency number is available for urgent out of office hours

communications.

Notification of accidents

Shipowners and shipmanagers are required by section 191 of the

Merchant Shipping Act to notify the Bahamas Maritime Authority of

accidents to ships involving serious injury or loss of life or where a

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Guidelines for Inspectors

App. 38

ship has sustained material damage affecting seaworthiness.

Inspectors are also requested to briri¢ to the attention of the Authority

any casualties which may come tc their attention. A form for

reporting of casualties by masters is available. Information on

casualties may however be submitted in any form, and by the most

direct means.

Investigation

On receipt of advice of a casualty, a decision will be made as to the

scope of the investigation required. In case of minor casualties,

involving no loss of life or serious damage to the ship, it may not be

necessary to conduct an on site investigation. In other more serious

cases, an investigation will be carried out by an inspector on behalf of

the Authority. In such cases, arrangements will be made with the

inspector, who will be authorised to conduct the investigation.

Guidance on the scope and extent of the investigation, will be issued

to the inspector concerned. In all cases the objective of investigations

are to:

e Establish the facts

e Determine the cause of the casualty

e Identify any measures which might prevent a recurrence

Inspectors costs incurred in accident investigations carried out at the

request of the Authority should be recovered from the owner of the

vessel concerned.

Report of investigation

On completion of an investigation, a report should be submitted as

soon as possible to the Authority. The report should include:

Particulars of the vessel

Factual narrative of events

Comment and conclusions

Any recommended preventative measures

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e Annexes, containing, where appropriate, copies of original

documents such as charts, log books, certificates, photographs etc.

Major casualties

In case of major high profile casualties, officers of the Authority will

attend to conduct the investigation, and may request the assistance of

local inspectors in such cases.