By Jeffrey S. Moller
In recent years, federal prosecutors have pursued criminal charges against shipping companies and their employees with increasing energy
. This trend is alarming not only because it targets both denizens of the wheelhouse and the executive suite alike, but because it relies upon criminal statutes that are out of step with traditional tenets of criminal law and employs prosecutorial tactics which often lead to the distortion of facts and the loss of attorney-client privileges. Recent cases provide a "word-to-the-wise" and at the same time cry out for Congressional remedy.
As one might expect, oil pollution cases are by far the most attractive to prosecutors. Another type of attractive case is collision or allision resulting in passenger death or injury, such as the October 2003 Staten Island Ferry disaster. Both types of cases are covered loudly by local (and sometimes national) media. Each involves injury to either the environment or innocent members of the voting public. Prosecutors, whether at the federal or state level, are inevitably political creatures who enjoy the exposure which comes with the pursuit of justice against polluters or others whose actions have harmed the innocent.
It has often been said, only half in jest, that a grand jury, which is essentially led and fed by the prosecutor without input from criminal defense attorneys, would indict a ham sandwich. Not only do they hear only one side of a story, but members of a grand jury feel comfortable in knowing that an indicted citizen will have the benefit of a full and prompt criminal trial before actually receiving punishment. And grand jurors enjoy the vicarious satisfaction of bringing polluters to justice or assisting innocent victims. As a result, pollution cases or vessel casualty incidents resulting in passenger deaths can usually lead a grand jury to issue an indictment.
As is well known, incidents that occur on the navigable waters of the United States
are primarily regulated by federal law. There are a number of federal statutes which can be used to impose criminal fines and imprisonment for incidents occurring on ships and boats. Maritime pollution incidents can bring into play any one of three federal criminal statutes: the Migratory Bird Treaties Act, the Clean Water Act, and the Act to Prevent Pollution from Ships. Cases involving the deaths of crew members or passengers can bring into play a federal statute popularly known as the Maritime Manslaughter Statute. First-year law students learn that traditional notions of fairness require proof of two basic elements before a person can be sent to jail: Actus Reus and Mens Rea, which are Latin phrases meaning proof that a defendant actually performed a prohibited act and that he did so with a degree of criminal intent. The most controversial aspect of the employment of the above described criminal statutes is the fact that the statutes, as written, allow conviction based upon a showing of no more than "simple" negligence.
In fact, in a prosecution under the Federal Migratory Bird Treaty Act, the government does not even have to prove carelessness. The literal language of the statute, as drafted in 1918, states that the mere act of killing a bird, regardless of the means or the intent of the actor, is punishable by up to a $15,000 fine and/or six months in prison. Even though the Migratory Bird Treaty Act was originally intended to prohibit hunting, which unmistakably involves an intent to kill, the Act is inevitably used by federal prosecutors when pursuing criminal charges against a mariner and/or his employer in an oil spill case. Many species of water fowl are protected by the MBTA and any sizeable spill of crude oil or heating oil in a coastal area generally results in the death of one or more birds. The low threshold of proof under the MBTA is irresistible to any prosecutor. In a well-publicized grounding incident resulting in the discharge of 98,000 gallons of #6 oil into Buzzard's Bay, the simple negligence provisions of the Clean Water Act and the strict liability provisions of the Migratory Bird Treaty Act were the foundation of charges brought by the U.S. Attorney against both the mate and his employer. Each eventually pled guilty. The employer was ordered to pay a $10 million fine, $7 million of which was designated by the court to be used in certain wetlands conservation projects in the area of the spill. In that particular case, the mate would most likely have been subject to punishment even under a proper criminal negligence standard because the spill was proven to have been caused by his decision to leave the wheelhouse completely unattended while underway. But the company was far less culpable from a criminal point of view. Not only was it subjected to the strict liability provisions of the MBTA, but it was also charged with simple negligence, not for the particular act of the mate, which was contrary to established company policy, but for having negligently hired the mate in the first place.
The simple negligence standard found in the Maritime Manslaughter statute (18 U.S.C. Sec. 1115) has been employed by federal prosecutors in at least two recent cases, with differing results. That statute subjects a vessel officer or crewmember to punishment of up to ten years in jail if his negligence causes the death of any person. The statute imposes a higher prosecutorial burden for the conviction of shoreside executives of the shipowning company who may be punished if they "willfully and wantonly" allowed the shipboard negligence to take place. In the well-publicized Staten Island Ferry disaster of October 2003, the U.S. Attorney for the Eastern District of New York (Brooklyn) charged the licensed vessel operator under the simple negligence provision and the ferry system's supervisor of operations, the pilot's shore-side boss, under the latter provision. Each pled guilty. However, in a recent, less-publicized case, a tankship's Chief Mate was acquitted by a jury in a criminal prosecution involving the Maritime Manslaughter Statute arising out of the death of a crewman who had been sent into an empty (but not gas-freed) cargo tank. At first, the judge decided that under the broad plain language of the statute (drafted in 1905), nothing other than simple negligence was required to be proven. This prompted a guilty plea by the Chief Mate. However, in a surprise move, the judge reversed himself and decided that, in keeping with what he had learned in law school, gross negligence was at least required. The Chief Mate immediately
retracted his plea and the case proceeded to trial where the prosecutor failed to prove to a jury's satisfaction that the Chief Mate had been so grossly negligent as to infer the existence of criminal intent.
By far the most popular type of maritime environmental crime is the violation of the federal Act to Prevent Pollution at Sea (APPS) which essentially incorporated into U.S. law the well-known provisions of an international treaty. For some reason, probably having to do with either sloth or cost, Chief Engineers continue to pump oily bilge or ballast water overboard. The statute prohibits this behavior and requires any transfer of oily waste to be recorded in the vessel's Oil Record Book. When a vessel sails into a U.S. port, its Oil Record Book is supposed to be complete and accurate, and signed by the Chief Engineer. If prosecutors get wind of the fact that some amount of oil was pumped overboard without the event being documented, the inevitable prosecution for a falsified Oil Record Book is pursued. Since the falsification of documents is involved, the Oil Record Book violation can result in a greater penalty than the act of pollution itself. And, the U.S. Department of Justice has taken the position that if a vessel calls upon more than one U.S. port, the same omission in its Oil Record Book counts as a separate criminal act for each port visited, allowing the U.S. Attorneys for each district to bring their own cases and extract separate and duplicative fines and penalties.
Of course, the prosecutors must have proof that the pollution event actually occurred. In this they are aided by the "whistle blower" provision of APPS which encourages conscientious crew members (or those with a profit motive or a grudge against the ship's officers) to come forward and report the pollution in exchange for receipt of a percentage of the criminal fine recovered. The whistle blower's payoff can be as much as 50%, which amounts to hitting the lottery if the Justice Department succeeds in extracting a multi-million dollar fine.
One significant related development is the increasing tendency for prosecutors to bring charges for obstruction of justice. As Martha Stewart found out, lying to a federal investigator can result in jail time even if the conduct being concealed would not have been a crime itself. In the APPS cases, obstruction of justice has been charged not only based upon a falsification of the Oil Record Book, but by the mere existence of an overboard diverter pipe, even if it is never proven that the pipe was actually used for the purpose of by-passing the ship's oily water separator equipment.
Obstruction of justice charges can even arise where a company investigator, rather than a federal law enforcement official, has been deceived by an employee. And in a remarkable trend, federal prosecutors are offering reduced punishment to corporate defendants in exchange for their agreement to waive the attorney-client communication privileges which would otherwise protect the notes and records kept by an attorney who has conducted an investigation. This means that an employee who speaks candidly to a company lawyer while under the impression that the conversation would be subject to privilege can be exposed to criminal prosecution if the company itself decides to waive the privilege and allow its lawyer to testify as a witness to the admissions made by the employee. Moreover, if the employee was less than truthful with either the lawyer or some other internal company investigator, an employee can be subject to obstruction of justice charges just as if the company investigator or lawyer was a deputized federal official.
Although these trends are likely to keep mariners and shipping company executives awake at night, there are one or two important lessons. First and foremost, honesty is far and away the best company policy. The punishment for lying to investigators and falsifying documents is often much more serious than the punishment for the behavior being covered up, if indeed that behavior was, criminal at all. Secondly, charges based upon statutes which seem to allow criminal punishment on a strict liability or simple negligence basis ought to be vigorously opposed. The specter of jail time can give prosecutors tremendous leverage in plea negotiations, but federal judges are increasingly uncomfortable with imposing criminal penalties without proof of the Mens Rea or criminal intent element. Pressing judges to make a decision by challenging indictments or forcing trials under the Maritime Manslaughter Statute or the Migratory Bird Treaty Act can help hold back the tide. What is really wanted, however, are clarifying Congressional amendments to these statutes to assure that only actual criminals can be subjected to jail time. Of course, finding a legislator who is courageous enough to introduce such legislation at the risk of being castigated in his next campaign as being "soft" on polluters is however a tall order.
About the Author
Mr. Moller is a partner in the Maritime Practice Group of Blank Rome LLP, a law firm with major offices in New York, Philadelphia and Washington, D.C. He can be contacted at firstname.lastname@example.org.