When Your Ship Is In The Bull's Eye

January 2005

The events of September 11, 2001, and the resulting litigation have highlighted the possibility of liability for vessel owners in the event that a vessel is used in the perpetration of a terrorist attack, such as the detonation of a weapon of mass destruction in an American port. Airlines are being sued for failing to prevent the attacks; if similar attacks occur with vessels, the vessel owners may be sued for any damages caused to third parties for failing to ensure the security of the vessels against such attacks.

In response to the September 11 attacks, the IMO adopted the International Ship and Port Facility Security Code ("ISPS Code"), incorporated into SOLAS 1974. The U.S. Congress also passed the Maritime Transportation Security Act ("MTSA"), implementing the ISPS Code and setting forth numerous requirements to prevent terrorist acts against shipping. Owners must, among others requirements, formulate vessel security plans, designate security officers both aboard the vessel and shore-side, and have their vessels certified compliant by the U.S. Coast Guard or the designated authority of their flag state.

Compliance with the MTSA and ISPS Code could prove a key factor in determining whether a vessel owner was negligent under general maritime law in the event of a terrorist attack. In a paper presented to the Pacific Admiralty Seminar in San Francisco in October 2004 Antonio J. Rodriguez, a partner in the New Orleans office of Fowler, Rodriguez & Chalos, discussed the potential liabilities a vessel owner may have to third parties in the context of the MTSA. He also addressed the potential for liability for the discharge of hazardous substances under the relevant U.S. environmental statute, CERCLA, and the possible discharge of oil under the Oil Pollution Act of 1990, which could result from the detonation of a weapon of mass destruction aboard a vessel. Given the continued threat of terrorist activity against the United States and other Western countries, particularly against vulnerable infrastructure, these issues could prove extremely important if a terrorist attack does occur.

The paper will be published in Volume 17, Issue 2, of the University of San Francisco Maritime Law Journal, in Spring/Summer 2005. It is can also be downloaded with kind permission of the author and the Journal.