OPA 90 Salvage Requirement Lessons

The OPA 90 Salvage Response regulations have now been in effect for a number of years and while there has not yet been a major US incident that tests the system to the limit, there have been a few smaller incidents where some lessons are being learned.

The most central issue in the US Salvage regulations focuses on first getting people in place as quickly as possible. There is no doubt that, in salvage, knowledgeable eyes on site is the single most effective driver in building the full subsequent response.

The USCG is well aware of that and has designed the regulations to require a very rapid on site response by salvors. At the inception of the tank vessel salvage requirements DonjonSMIT, one of the major US salvage response providers, tasked Martin & Ottaway with the development of a system that provides the ability to put knowledgeable personnel on site as soon as possible anywhere in USCG administered locations.

This system relies on the commitment of a nationwide group of dedicated professionals who have agreed to hustle over to an incident any time of day or night. This system is called RSA (Rapid Situation Assessor) and is maintained and tested by M&O on a continuous basis. The majority of RSA’s are surveyors with salvage experience, but there are also local salvors, marine contractors and divers with salvage experience who function as RSA’s. It is not a simple task to identify appropriate professionals in every USCG coast sector but, so far, RSA response times have been very rapid, and this portion of the system appears to work quite well.

However, there is a subtle issue that, so far, we did not have to exercise and this is related to potential conflicts of interest. Since so many of our RSA’s are essentially the only game in town, there is a distinct possibility that, in case of an RSA call out, the local RSA has already or will be asked to attend for other interests as well. This is contrary to common marine consulting standards where, in general, a consultant only represents one client. This may represent a quandary for a consultant who, on the one hand, has agreed to immediately travel to an incident to function as an RSA, and, on the other hand, may have to refuse a long standing client due to a rather novel US Response requirement. More importantly any confusion and delay at this stage would reduce the benefit to the public of the response. We discussed this issue from the inception of the program, and in these discussions it became clear that, in principle, there would not be a conflict since RSA’s do not attend for cause, they attend to assist in remedial response for a relatively short period of time. Remedial response is not an issue that results in conflict, since the optimal response is for optimal common good, not the exclusive benefit of any one party. Furthermore, in response activities, an investigation in what caused an incident is not significant. As such, it was decided that simple disclosure of parallel interest in the initial portion of the response to all parties would suffice. The moment additional salvage personnel arrived on scene (which is highly unlikely to be more than 24 hours), the RSA could perform an orderly handover to the salvage team and would solely represent the other interest.

In theory this concept was thought to be sound, but until very recently this concept had not been exercised in practice. Remarkably the RSA who also happened to have the distinction of having been the very first RSA to ever have been called out back in 2011, was recently called out again and noted that he had also been called for P&I interest. He proceeded to inform his P&I client and they quickly grasped the situation and told him to continue on in a parallel capacity. Therefore, there was no delay in response and all parties were fairly served.  Fortunately for the public, this salvage response was quickly resolved and all that remained was for the RSA to invoice for his services. We have decided that billing will be performed under the same concepts of fairness and transparency, where fees and expenses will be divided equally based on periods for which joint service is provided. Interestingly, ultimately this results in a saving to the Owner in case of a casualty and that, in the shipowner’s world of ever increasing costs, should be a good thing.