The Murky Regulations Governing Submersibles

Photo: Ocean Gate/Handout/Anadolu Agency via Getty Images

In a 2019 post on the OceanGate website, straightforwardly titled “Why Isn’t Titan Classed?” the undersea exploration company wrote that it had declined to test its vessel with an independent certification company because of its superior commitment to safety. Such assessments, according to the company, “are done annually … and do not ensure that the operator follows procedures or processes that are the key to conducting safe dive operations.” (Also “bringing an outside entity up to speed on every innovation before it is put into real-world testing is anathema to rapid innovation.”) Four years later, as the Titan’s five passengers are lost at sea with less than one day of oxygen remaining, one might ask, Why is this kind of thing optional in the first place? And who or what is regulating the strange world of submersible tourism?

It’s not as if the dangers of going 13,000 feet under the sea are unknown to experts. The Marine Technology Society, an ocean-technology-industry group, sent a letter in 2018 to OceanGate CEO Stockton Rush, voicing “unanimous concern” about the vessel’s lack of certification. “While this may demand additional time and expense,” the signatories wrote, “it is our unanimous view that this validation process by a third party is a critical component in the safeguards that protect all submersible occupants.”

To learn more about the regulations surrounding the submersible tourism industry, I reached out to Sal Mercogliano, a former merchant mariner, and maritime historian at Campbell University, to talk about the murky arena of international waters.

This interview has been edited and condensed for clarity.

Is there a body that regulates the submersible industry?
Submersibles don’t fall under international law like oceangoing ships do where you have to be flagged in a nation and then you have to be inspected by both the nation you’re flagged by and the nations you sail into. To insure a vessel, you would usually have a third-party classification society, an entity like the American Bureau of Shipping, come onboard and make sure you’re following all the rules as they’re laid out.

Submersibles are different because they don’t sail in and out of ports. They’re carried, so most submersible rules are local rules. For example, in the U.S. there are specific rules for operating submersibles in and out of U.S. ports and in U.S. waters. The catch with OceanGate and the Titan was they were basically operating outside territorial waters — they’re past the 12-mile limit, and they’re launching off a Canadian vessel. There didn’t appear to really be any sort of jurisdictions applying to this vessel. They’re not breaking the laws, but they’re operating in a very gray area.

OceanGate has three submersibles, and one of them is inspected by the American Bureau of Shipping. But in the case of Titan, the CEO, Stockton Rush, basically said, “We’re not going to use these outside classification agencies because they slow us down, they’re time consuming, and basically OceanGate knows better.” And so there really weren’t any outside inspections over this. He hired a marine surveyor to come onboard and inspect Titan and do a test dive on it, but that’s about it. Normally you’d have this classification agency do a series of inspections and have timelines where you have to do periodic tests and checks. That didn’t exist for Titan.

Is that true of any submersible? They don’t have to be checked in this way? 
No, because most submersibles would be operating in and out of ports and usually the jurisdiction you’re operating out of would do inspections. I tend to think of this as a very niche market — diving to the Titanic — but submersibles are used every day in the commercial industry, deep-well diving, deep-well drilling, pipe laying. When you look at the commercial space industry, they launch from U.S., land in the U.S., so they fall under the FAA. That’s not happening here more than 12 miles off the coast of Canada. This is that weird gray zone. Some have called the deep ocean “the outlaw sea” for a reason; there’s not a lot of enforcement out there. You’re in international waters there, so there’s no one out there to pull you over and check your papers. What really surprises me about this whole thing is that usually a third-party entity, this classification society, is a requirement for insurance, so I’m not exactly sure how the company obtained insurance to operate.

But the Canadian boat itself, the Polar Prince, is classified. 
It is classified. One of thing that happens if you come into port is they’ll check the ship and do inspections and check the lifeboats. But this isn’t a lifeboat. It’s a work boat.

What kind of safety measures would classification have insured in this situation?
Because you’re not doing an outside inspection, you’re not getting things put on this submersible that would really be useful like a transponder or a signal device that activates after 24 hours. As far as we know, this was never fitted on there. Most vessels that sail across the ocean have an EPIRB, an emergency position-indicating radio beacon. This is the beeping thing that floats off when a vessel sinks. It would be useful to have an EPIRB mounted on this submersible that pops to the surface after a set period of time.

The Marine Technology Society sent a letter warning that Titan’s lack of formal certification could “result in negative outcomes” that would undermine the industry’s “safety track record.” 
The submersible industry wants standards. They want rules. They need this to ensure safety. In the early-20th century, we saw accidents in aviation, and it took government and aviation associations to come together to put laws into place that make it second nature for you to get on an airplane and fly 30,000 feet without thinking about it. What does it take to make it so you’ll board a submersible and go down 13,000 feet without thinking about it — that’s what these societies and classification organizations do.

Is there a big tourism market in submersibles? 
Submersibles have been around for 50 years commercially but, again, tend to be more on the industrial side. What they don’t want is the tourist side jeopardizing their operations, making it so litigious that it’s difficult to operate — you don’t want tourism driving the standards. I don’t think there is a huge tourism market in submersibles. It’s mostly coastal, where you’re in the Bahamas and go down to see fish. They would be operating within Bahamian waters with those rules and regulations in place for them. This is really unique, going down 13,000 feet to see the Titanic.

As a historian, what parallels do you see with the Titanic?
The major seafaring nations get together in London two years after the disaster and pass the Safety of Life at Sea (SOLAS), which set the standard by which vessel construction and rescue is done. SOLAS basically mandates things like having enough lifeboats for everybody, the standard for what distress flares look like, everyone having radio, the radio being monitored 24 hours a day, and requirement by law to render assistance. The Titanic really set in place vessel rescue on high seas and the question is if the Titan gets us an update to SOLAS regarding submersibles.

Are submersibles not included? 
They should be, but there’s no requirement. The question is does this meet the definition of a vessel since it’s not sailing in and out of port; it’s a gray area. It’s one of those weird things where you don’t have a good read on where it fits in. Potentially what you can see is a very simple change to SOLAS and to the international conventions where you treat submersibles as ships and require them to be flagged and classified.

The maritime industry has a saying that all rules and regulations are written in blood. I hate to say it, but it’s true. Everybody knew the Titanic didn’t have enough lifeboats, but nobody foresaw the possibility that it could sink in less than two hours and that there wouldn’t be a rescue craft close by. This case with Titan, I’m shocked by the historical irony of this endeavor — I mean, if we learned from history I wouldn’t have a job. Even weirder, there was a book written 14 years before the sinking of Titanic that basically foretold the sinking of Titanic — the ship sails across Atlantic, strikes an iceberg, and sinks. The title of that book was The Wreck of the Titan.

The Murky Regulations Governing Submersibles