A Practical Proposal for Maritime Security

This article was co-authored by Mark J. Graffagnini

Since the wake of the September 11 destruction, America has scrambled to craft a Maritime Security policy that guards our nation's maritime assets and critical ports from similar attacks. The reaction to gaps in security has been swift and is quite admirable. The nation now, however, stands at a crucial juncture for implementing measures that guarantee our continued safety. "Terrorist Threat Continues," The Herald Rock, Aug. 24, 2003, at 2E ("While the government has poured resources into beefing up airline security, port security has taken a back seat. And while the nation must be on guard against another airline hijacking like that of September 11, 2001, our ports may be even more vulnerable."). Most of the scholarly analyses on the issue of maritime security have focused on two issues: (1) liability in the event of maritime terrorism; and (2) possible scenarios for maritime terrorism. In today's environment, "[c]onventional maritime law just does NOT suffice," and new angles fresh with maritime industry perspective will be needed. James T. O'Reilly, Planning for the Unthinkable: Environmental Disaster Planning Issues in An Age of Terroristic Threats, 9 Wid. L. Symp. J. 261, 262 (2003).

Indeed, there is no dearth of descriptions of a possible future attack on the maritime industry. Predictions span the gamut of possibilities: attacks aimed at vessels containing hazardous materials, H.D.S. Greenway, Is It Safe? How Do Law Enforcement Agencies Protect a 900-foot Liquefied-Natural-Gas Tanker from Potential Attack? With Everything They've Got, Boston Globe, Jul. 27, 2003, at 12; scenarios involving stowaway terrorists subsiding within containers aboard large cargo vessels; hidden WMD and "dirty bombs" aboard ships destined for U.S. waters; chemical and biological weapons attacks on cruise ship passengers; to attacks on structures within ports. "Who, What, and Where Will Terrorists Strike Next?" Security Director's Report, Aug. 2003, at 1; see also, Justin S.C. Mellor, Missing the Boat: The Legal and Practical Problems of the Prevention of Maritime Terrorism, 18 Am. U. Int'l L. Rev. 341, 346-366 (2002) (describing possible scenarios and current shortcomings of policy presented by a new era of terrorism).

All of these predictions have helped those in the maritime industry prepare for possible attacks in the future. Likewise, the existing descriptions and explanations of current security assessments and pending regulations have guided those in the industry in charting the post 9-11 course. Despite this volume of knowledge, scholars and practitioners have overlooked some of the simplest, most practical efforts aimed at preventing terrorist incidents. This article attempts to fill that gap by suggesting some simple regulatory measures based on the practical recommendations of those within the maritime industry. In this article, we advocate a few simple steps that might help the nation and the world maritime industry prevent a debilitating attack on world commerce and shipping.

II. Current Security Measures

A host of new domestic and international security measures now occupy the maritime field. An outline of some of the more important of those measures highlights some of the gaps that exist and points the way toward future progress.

A. Maritime Transportation Security Act

The Maritime Transportation Security Act ("MTSA") implements the security policies formulated by the International Maritime Organisation ("IMO"), including several antiterrorism amendments to the International Convention for the Safety of Life at Sea ("SOLAS") and the International Ship and Port Facility Security ("ISPS") Code. Admiral Thomas H. Collins, Prepared Testimony Before the House Committee on Transportation and Infrastructure Subcommittee on Coast Guard and Maritime Transportation, Fed. News Serv., Jun. 3, 2003. Key domestic features of the MTSA include the following:

Port security and vulnerability assessments

Detailed security plans to address those assessments

Designation of the Captains of the Ports to a Federal Maritime Security Coordinator position and empowerment of those Coordinators to make and implement specific port security measures

Requirements and standards for hiring and training security personnel.

Id. On the international front, the changes to SOLAS and ISPS resulted in several new security requirements that ships display Identification Numbers permanently in a visible place on the vessel. In addition, ISPS requires that vessel owners implement the following measures:

Designated sea officers

Plans to address risks such as terrorist boardings or hidden bombs

Tracking devices to prevent hijacking and monitor routes

Alarm systems to notify authorities of security breaches.

Murray Strachan, Tough New Rules on the Horizon, Aberdeen Press J., Sep. 1, 2003, at 10. In addition, ISPS requires ports to (1) conduct more stringent risk analysis of berthing ships; (2) be able to shut down and eliminate possible threats; and (3) establish procedures to detain or banish vessels posing threats to security. Id.

B. Customs and Coast Guard Regulations

i. Container Security Initiative ("CSI")

CSI represents an effort by the U.S. to cooperate with significant port states on inspecting containerized cargo. CSI specifically places U.S. Customs officers in ports of origin to pre-screen and inspect high risk containers. "U.S. Customs Implementing New Maritime Anti-Terrorism Regulation," Jan. 16, 2003, available at http://www.uspolicy.be/Issues/Terrorism/cust.011603.htm, [hereinafter "Customs New Regulations"]. Under CSI port states and Customs officers work side-by-side to target high risk containers and to inspect those containers before lading.

ii. Advance Manifest Regulations

The Advance Manifest Regulation, or "24-hour rule," requires that shippers and carriers provide Customs with specific information for containerized cargo at least 24 hours prior to lading. "Customs New Regulations," supra. Once effective, U.S. Customs will no longer tolerate vague descriptions of cargo or blank manifests for ships planning to enter U.S. ports. Included in this new prohibition on vague descriptions are terms such as "Freight of All Kinds," or "FAK." Id. Finally, the regulations allow non-vessel operating common carriers ("NVOCCs") having International Carrier Bonds to electronically present cargo manifest information to customs. 16 Fed. Reg. 66318 (2003). NVOCCs electing to so provide electronic cargo manifests but failing to do so in an accurate and timely manner, face liquidated...