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Failure to comply with US COVID-19 regulations

29 May 2020

This circular serves to advise members of the potential risk of vessel detention, civil and criminal penalties in the US in the event of non-compliance with recent COVID-19 regulations.

The US Coast Guard has issued several Marine Safety Information Bulletins as a result of the COVID-19 pandemic and vessels arriving to or travelling between any US port must follow reporting and infection control measures to maintain the safety of personnel aboard vessels as well as within the port. See USCG MSIB 02-20 (Change 4).

The US Coast Guard considers any ill person onboard a vessel that may adversely affect the safety of a vessel or port facility to be a hazardous condition as per 33 C.F.R. 160.216. As such, this illness must be immediately reported to the US Coast Guard. See MSIB 6-20.

Persons who exhibit symptoms of COVID-19 must also be reported to the nearest Coast Guard Sector Office or Captain of the Port. This requirement is separate, and in addition to, the requirements for cargo vessels who report illnesses to the US Centers of Disease Control.

As per 42 C.F.R. § 71.21, vessels destined for a US port are required to report any sick or deceased crew/passengers during 15 days prior to arrival at the US port.

In addition, recent US Presidential Proclamations have placed entry restrictions from persons arriving in the US from or through the following countries:

Iran, China (excluding Hong Kong and Macau), the European states within the Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland), United Kingdom and Republic of Ireland.

In addition, non-passenger commercial vessels, with no sick crewmembers aboard, that have been to the above-listed countries or embarked crewmember from these countries within the last 14 days, will be permitted to enter the US and conduct normal operations, provided that crewmembers remain aboard the vessel except to conduct specific activities directly related to vessel cargo or provisioning operations. Non-passenger commercial vessels that have been to the countries noted above or embarked crewmembers from the countries noted above within the last 14 days, and do have sick crewmembers, should expect delays and need to work with local health and port officials to entry.

One of our members, earlier this week, mistakenly failed to comply with the required COVD-19 reporting and received a letter from the US Coast Guard advising that departure clearance was being withheld and civil penalties might be imposed. Quick action served to prevent any delays or civil penalties, but the circumstances of the case are described below in order to (1) inform our members; (2) illustrate how the US Coast Guard is dealing with these regulations and (3) emphasize the need for strict compliance with the required COVID-19 reporting.

Case study:

Our Member's vessel sailed to the US from Canada and no sick crewmembers were aboard. When the vessel arrived in port, the Master was required to execute an Attestation of Hazardous Condition Letter, prepared by the local Coast Guard office, which had three sections. He was required to initial and sign each section.

 

1. I, _______________________, Master of the vessel _____________, hereby attest that there are NO passengers or crew aboard this vessel that are or have exhibited one of more COVID-19 or other flu-like symptoms in the past 14-days. A list of symptoms can be found in Marine Safety Information Bulletin 06-20

Initial and Date here only if this statement is true:

__________ _________________

 

2. I, _______________________, Master of the vessel _____________, hereby attest that there are NO passengers or crew aboard this vessel that have been to China (excluding Hong Kong, and Macau), Iran, the Schengen area, the United Kingdom, or the Republic of Ireland in the past 14 days.

Initial and Date here only if this statement is true:

__________ _________________

 

3. I, _______________________, Master of the vessel _____________, hereby attest that there are NO passengers or crew aboard this vessel that have been in contact with another person who has been to China (excluding Hong Kong, and Macau), Iran, the Schengen area, the United Kingdom, or the Republic of Ireland in the past 14 days

Initial and Date here only if this statement is true:

__________ _________________

 

I hereby truthfully attest to the above statement:

__________________ __________________

Signature                Date

NOTICE: Providing false official statements is a violation of 18 U.S.C.§ 1001 and may result in criminal prosecution

The Master initialed, dated and signed the prepared Attestation of Hazardous Condition Letter form which has been presented to him. It is not clear if he understood the phrase "Schengen Area" on the Coast Guard form or fully appreciated all the specific countries that were so categorized. It is also not clear if he understood that transiting through a European airport constitutes "contact with another person" from the restricted areas. As it turns out, replacement crew signed on the vessel in Canada only five days before the vessel arrived in a US port and several of the replacement crew originated from restricted countries and/or flew from their home countries through a connecting airport in another restricted country. When the US Port State Control investigators contacted immigration authorities to determine the accuracy of the Master's Attestation of Hazardous Condition Letter, it learned that that several crewmembers were from or flew through restricted countries in the past 14 days.

As a result, the US Coast Guard issued a letter to the Master advising that, pursuant to its authority under 46 U.S.C. § 70036(f), the vessel would not be cleared to depart because the Coast Guard believed the vessel owners and operators may be subject to a civil penalty under 46 U.S.C. § 70036(a). The letter further advised that Customs and Border Protection had withheld departure clearance pursuant to 46 U.S.C. § 60105.

Following the Club correspondent's involvement, it was agreed the Master would accept and sign a Letter of Warning and that no fine or filing of security would be needed. As a result, the vessel sailed without delay.

If accurate answers were given to the three questions on the Attestation Letter, it would not have impacted the vessel's ability to call the US. A vessel is permitted to call the US with crewmembers who are from or who have transited through a restricted country. All that would have occurred is that the crewmembers would have been restricted to the vessel as per the COVID-19 regulations. It was the failure to accurately answer the questions in the Attestation Letter which created the problems encountered.

It is extremely important for vessels and their Masters to carefully comply with COVID-19 reporting requirements. Here we had a case with no sick crewmembers, yet the US Coast Guard imposed restrictions on the vessel and issued a Letter of Warning to the Master. This serves to illustrate that Members must strictly adhere to the COVID-19 reporting requirements and vessel owners and masters who fail to do so are subject to Coast Guard enforcement actions, which include civil penalties, vessel detentions and possible criminal liability. Members and Masters who have questions about COVID-19 reporting requirements should contract their Skuld claims handler for assistance.