Page 15: of Maritime Reporter Magazine (August 2002)

Government Update

Maritime Security and the Hazards of Unilateralism

By Dennis L. Bryant, Senior Maritime

Counsel, Haight Gardner Holland &

Knight, Washington, D.C.

The United States Congress is working hard to enact maritime security legisla- tion. At the same time and under the leadership of the United States, the Inter- national Maritime Organization (IMO) is working hard to develop an international convention on maritime security. There is little doubt that Congress will com- plete its task before IMO completes its mission. There is also little doubt that, in some areas, the U.S. approach will differ from that to be taken by IMO. The inter- national maritime community will thus be facing a situation not wholly dissimi- lar from that of just over ten years ago when the U.S. Oil Pollution Act of 1990 (OPA 90) challenged the approach taken by IMO with regard to double hulls on oil tankers and related matters. It is hoped that Congress will attempt to min- imize the likely differences, but the Sen- ate and House bills from which the final bill will be crafted, upon close examina- tion, give one pause.

While the final version of the legisla- tion remains under negotiation between the Senate and the House of Representa- tives, various provisions of the bills before the Conference Committee pre- sent potentially major international issues.

For instance, one provision would allow the United States to prohibit entry of a ship arriving from (or carrying cargo from) a foreign port found to not main- tain effective security measures. It is one thing to place special conditions on a ship that may be carrying suspect cargo (e.g., quarantine), as another provision in the bill would do. It is quite another thing to impose a ban on the ship because, for instance, one container on board was transshipped through a port that did not have a United States Govern- ment seal of approval.

The measure also conflicts with at least the spirit of the message being conveyed by USG Administration officials, such as

Customs Service Commissioner Robert

Bonner, about how the new U.S. mar- itime security program will be imple- mented.

According to IMO Standards...

A related provision would allow the

United States to prohibit a U.S. or for- eign flag vessel from providing trans- portation between the United States and any foreign port that is served by vessels navigating to or from a foreign port found not to maintain and carry out effective security measures. This effec- tively would say that not only must you do things our way, you must also ensure that all your friends and acquaintances do it our way. It raises unilateralism to amazing new heights.

Under the draft international conven- tion, carriers and individual ships would be required to develop security plans in accordance with IMO standards. Yet, it seems clear that these plans would not prove sufficient under the domestic legis- lation being considered in the United

States. In the U.S., under the proposed legislation, vessel anti-terrorism plans would have to comport with national and area plan requirements, identify a quali- fied individual having full authority to implement the plan, ensure the availabil- ity of anti-terrorism measures to deter a

Beginning this month, Dennis L.

Bryant, Senior Maritime Counsel at the law firm of Haight Gardner

Holland & Knight, Washington,

D.C. will be providing a regular monthly column in MR/EN regarding current trends and developments dealing with vari- ous issues within the maritime industry.

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