An often contentious issue in maritime litigation involving both personal injury and property damage is whether the wheelman in charge of a towing vessel that exceeds 26′ violated the so-called “twelve-hour rule.” According to 46 U.S.C. § 8104(h), “an individual licensed to operate a towing vessel may not work for more than 12 hours in a consecutive 24-hour period except in an emergency.” It is important for a company to make sure its wheelmen understand how investigators clock a 24-hour period, and what the courts consider “work.”
To provide guidance to summarize and clarify the work-hour limitations for licensed operators, the United States Coast Guard (“USCG”) issued a policy letter, G-MOC Policy Letter 4-00, Rev-1. According to the USCG, except in emergencies, a licensed operator of a towing vessel “may not work in excess of 12 hours in any consecutive twenty-four (24) hour period.” The Federal District Court for the Eastern District of Louisiana, interpreting the language of the statute, as well as the USCG Policy Letter, has held that in determining whether the 12-hour rule was violated “the countdown starts from the time the injury occurred, going back 24 hours.” Mercer v. Chem Carriers LLC, 790 F. Supp.2d 478, 481 (E.D. La. 2011)(relying on language, i.e. “Up to the time of the collision”, used by the U.S. Fifth Circuit Court of Appeals in Archer Daniels Midland Co. v. M/V Freeport, 909 F.2d 809, 810-11 (5th Cir. 1990)).
Though the term “work” is not defined by statute or regulation, the term “rest” has been defined as “a period of time during which the person concerned is off duty, is not performing work (which includes administrative tasks such as chart corrections or preparation of port-entry documents), and is allowed to sleep without being interrupted….” 46 CFR § 15.1101(a)(4). Given the definition of “rest,” it might be difficult for companies to keep track of whether their wheelmen are adhering to the 12-hour rule. Most towing companies establish six hour watch-keeping policies aboard their vessels. That is, crew members work six hours on-watch and six hours off-watch. Most wheelmen record the times they go on-watch and off-watch in the vessel’s log. But what a wheelman does after his relief comes on watch could be just as important.
Indeed, if a wheelman spends his entire six hour watch behind the ”wheel” and then spends 30 to 40 minutes instructing or helping other crewmembers and/or tankering barges, one can see where the 12-hour rule might be violated. Another consideration to take in to account is whether travel time to and from the vessel would be included in the definition of “work.” Thus, all activities of a “licensed operator” could be considered by a USCG officer investigating an incident or a court in determining whether a wheelman is compliant with the “12-hour rule.” Because a wheelman’s “work” schedule may be different than his watch schedule, it may be wise for companies to implement policies that a wheelman mark down the time period he is off-duty, i.e., at “rest.”