Marine Link
Thursday, June 20, 2024

Seaman’s Manslaughter

Maritime Activity Reports, Inc.

May 23, 2024

© chokniti / Adobe Stock

© chokniti / Adobe Stock

How to avoid and address potential prosecution following marine-incident deaths.

In recent years, there has been a resurgence in criminal prosecutions of maritime personnel, vessel owners and operators and other individuals and corporations under the federal Seaman’s Manslaughter statute (18 U.S.C. § 1115). Recent examples of such prosecutions include the guilty verdict against Jerry Boylan, who was the captain of the Conception, a 75-foot passenger vessel that caught fire and burned to the waterline while anchored at Santa Cruz Island, Calif. Thirty-three passengers and one crew member died aboard the burning vessel, which Boylan and five other crew members escaped by leaping overboard. Boylan now faces a statutory maximum of up to 10 years in prison, along with significant financial and other potential penalties.

Potential defendants do not need to be on board the vessel at the time of incident. Vessel owners, operators, supervisors and other parties whose actions (or inactions) may have led to the death of a person on a vessel under their purview may also face charges. For example, in 2012, BP, in its capacity as the charterer of the Deepwater Horizon, was indicted by a federal grand jury on 11 counts of seaman’s manslaughter. Although it was later determined that their on-site managers were not subject to the terms of the statute because they were not responsible for the navigation of a vessel, BP pled guilty to the charges and was sentenced to pay $4 billion in criminal fines and penalties, given five years of probation, and ordered to retain a process safety and risk management monitor, an independent auditor and an ethics monitor.

In this article, we will review the key provisions of the Seaman’s Manslaughter statute. We also will provide insights into how maritime leadership should respond to an incident and cooperate with investigators in a manner that can protect their rights and interests.

Summary of the Seaman’s Manslaughter statute
The Seaman’s Manslaughter statute criminalizes misconduct, negligence, inattention, fraud, connivance or violation of law that results in the death of another. It holds three categories of individuals liable:

  1. Every captain, engineer, pilot or other person employed on any steamboat or vessel;
  2. Every owner, charterer, inspector or other public officer;
  3. When the owner or charterer of any steamboat or vessel is a corporation, any executive officer of such corporation, for the time being actually charged with the control and management of the operation, equipment or navigation of such steamboat or vessel.

If convicted of seaman’s manslaughter, potential penalties include imprisonment for a term of up to 10 years. According to the 1989 Federal Sentencing Guidelines Manual, courts may also impose a term of supervised release after imprisonment. Fines also may be imposed, of up to $250,000 or twice the gross financial gain to the defendant or twice the gross financial loss to the victim, and courts may — and in some circumstances, must — order restitution.

Take action immediately after an incident

Seaman’s manslaughter cases involve a range of factual circumstances that may or may not lead to criminal prosecution. Because of these uncertainties, owners, operators, in-house counsel and other parties should act quickly and with care when responding to a maritime incident involving death.

Immediate actions may include the following:

Appointment of external counsel. Whenever a member of management becomes aware of a potential law enforcement encounter and potential criminal culpability, they should immediately notify senior leadership, which in turn should engage external criminal counsel for the company. Depending on counsel’s assessment of potential culpability, consideration should be given to retaining separate, or at least “pool counsel,” for the individuals involved in the fatality. Failure to do so can create a difficult conflict of interest for company counsel. Ideally, criminal counsel should be someone with whom company counsel has a cooperative relationship so vital information can be shared pursuant to a formal or informal joint defense umbrella.

Preservation of documents and evidence. Once the company has received notice of a law enforcement investigation, it is required by law to preserve all relevant documents and evidence. Failure to do so can give rise to allegations of obstruction of justice, making false statements to law enforcement officers and similar crimes, in addition to seaman’s manslaughter charges. Particular care should be taken to preserve cellular phone records, including text messages and similar digital communications. A document retention notice should be circulated as soon as practicable to relevant departments and document custodians.

Limitations on communications and document creation. Companies should take steps to ensure the confidentiality of written communications speculating about a law enforcement encounter. Guidance on how to handle and limit such communications should be given to employees, and until the company and counsel have confirmed the relevant facts, the use of verbal communications may be preferable. Further, in a world driven by social media, acting quickly to issue a document creation notice will mitigate the risk of unwanted postings.

Clarification of employee rights and obligations. In the face of an incident or investigation, employees may not understand which actions or statements are appropriate and which are inappropriate. While a company may not directly or indirectly discourage employees from speaking with law enforcement investigators, such company may advise its employees of their right to request that their attorney be present during any questioning. The company may also tell employees that the company may make criminal counsel available to them who will serve as their personal counsel and not as company counsel. Finally, the company should notify employees that if they choose to speak with law enforcement, they must provide truthful, complete answers and avoid saying or doing anything to mislead law enforcement or obstruct the investigation.

What about search warrants, law enforcement interviews, grand jury subpoenas or document demands?
Search warrants are disruptive and inherently serious because they indicate that a judge has found probable cause that a crime has been committed and that the place or thing being searched contains evidence of that crime. Do the following to avoid allegations of obstruction of justice and to obtain as much information about the allegations as possible:

  1. Before the search, companies should ensure that they have written policies and procedures to follow in the event of a search, have a search warrant response team and have outside criminal counsel who is prepared to assist immediately.
  2. During the search, nonessential employees should be sent home while the remaining employees, the search warrant response team, and outside counsel communicate and cooperate with law enforcement agents. Among other tasks, they should obtain copies of the warrant and other relevant documents, create an inventory of items seized, participate in interviews and otherwise execute the response plan.
  3. After the search, counsel should debrief employees, ensure that document preservation protocols are in place, conduct a privileged investigation and coordinate next steps with government attorneys and agents, among other actions.

Owners, operators and employees also should be aware of their obligations and rights in the context of interviews and upon receipt of a grand jury subpoena or document demand from the government. Outside counsel can advise on the appropriateness of specific actions or responses.

At the end of the day, preparation is not just about preventing or avoiding an incident; it is also about knowing your rights and obligations before, during and after a post-incident investigation.

Editor’s note: This article stems from a lengthier piece that was published in a booklet for CLE at the 2024 Greater New Orleans Barge Fleeting Association (GNOBFA) River and Marine Industry Seminar. It is available here, starting on page 387.