The first mate of a tug involved in a 2003 oil spill in Massachusetts faces up to 18 months in prison.
Increasingly mariners are finding themselves caught up in a legal system that treats many maritime accidents as crimes, especially when environmental damage has taken place. In some cases, prosecutors or agencies no longer have to prove criminal intent; they just have to prove that an incident took place.
Even mariners who do a reasonable job of following proper procedures and standards should be aware that if they make a mistake, even an innocent mistake, they could face criminal charges.
The only way for mariners to protect themselves from unfair prosecutions is “to stop going to sea,” said James T. Shirley, a lawyer who specializes in marine casualties and pollution response for the firm Holland & Knight.
The Exxon Valdez spill in 1989 put public pressure on federal and state governments to prosecute environmental crimes vigorously. Between 1989 and 1999, the Department of Justice indicted more than a dozen ship-operating companies and more than two dozen crewmembers and corporate officers with environmental crimes.
The Exxon Valdez incident produced two important trends in maritime prosecution. One came out of the Oil Pollution Act of 1990 (OPA ’90), which set a lower standard for criminal negligence.
Under OPA ’90, if a mariner negligently spills oil, he or she is criminally liable. In the past, if there was no evidence of recklessness or criminal intent, simple negligence was prosecuted as a civil matter. That changed with OPA ’90. “Criminal negligence implies a recklessness,” Shirley said. “You have to commit the act knowing the consequences are going to be harmful to other people. With the Oil Pollution Act of 1990, we criminalized simple negligence.”
In addition, the federal Clean Water Act provides for criminal penalties, including severe fines and up to a year in jail, if simple negligence results in oil spilling into navigable waters, according to an article by William R. Dorsey, a former president of the Maritime Law Association of the United States.
A second and far more dangerous trend for mariners and maritime companies is the use of old laws that follow the standard of strict liability, which means a person can be criminally charged even if there was no criminal intent or negligent act. These older laws include the 1918 Migratory Bird Treaty Act, passed to protect birds from illegal hunting, and a section of the 1899 Rivers and Harbors Act banning the dumping of refuse. These laws are being used to prosecute mariners and company officers for actions that until recently weren’t considered criminal.
The Migratory Bird Treaty Act first was used to prosecute a mariner in the Exxon Valdez case. It was used recently in the prosecution of the first mate who was at the helm of a Bouchard Transportation Co. barge when it struck a ledge in Buzzards Bay, Mass., on April 27, 2003, spilling 97,000 gallons of oil.
The first mate left the wheelhouse for an extended time period, allowing the barge to go off course. On May 25, the first mate pleaded guilty to criminal charges of violating the Clean Water Act and the Migratory Bird Treaty Act. He faces fines and up to 18 months in prison.
Under these strict-liability laws, mariners can be charged just because they’re on a boat that caused pollution, even if they did nothing wrong. “Strict liability imposes criminal sanctions without requiring a showing of criminal knowledge, intent or even negligence,” the American Waterways Operators said in written testimony submitted in September 2003 to the U.S. Senate Committee on Environment and Public Works.
It is much easier for prosecutors to criminally charge mariners using these strict-liability laws. “You don’t have to show any fault whatsoever,” Shirley said about the refuse act and bird act. “If oil gets in the water and you own the ship, you’re criminally liable.”
In the past, in order to be charged with a crime, a person needed to have acted with criminal intent or in a reckless or willful manner, according to Michael G. Chalos, a partner in the law firm Fowler, Rodriguez & Chalos. Chalos helped defend Capt. Joseph Hazelwood after the Exxon Valdez incident. But courts have decided that the need to protect the public welfare outweighs the requirement to prove criminal intent. Since environmental laws are designed to protect public safety, courts have interpreted these laws to ensure maximum protection. “The result being the criminalization of maritime accidents in a draconian and, for the most part, unfair manner,” Chalos said.
Chalos believes the maritime industry should mount a public relations campaign to emphasize its economic importance to help counter this legal trend. “At the same time, he said, “the industry has to take steps to minimize the possibility of these types of accidents occurring: better trained crews and better equipment.”
For mariners, these changes can be troubling. When contracts are written with captains, the terms used are negligence and gross negligence, said Capt. Timothy Brown, international president of the International Organization of Masters, Mates and Pilots. That standard should be the same for prosecutions. “I really think the test should be that if you go after a captain for something, you should be able to prove, at the minimum, that he was negligent, and hopefully, that he was grossly negligent,” Brown said.
The legal climate has changed how mariners and marine companies view their roles. “I believe it is important for everyone in our industry to understand that spilling oil is a crime,” said Douglas A. Eklof, former president of Eklof Marine Corp. (now K-Sea Transportation Corp.), at a 1998 conference. “It does not need to be intentional or willful to be a crime. Any error or omission could be grounds for a negligence charge being brought against you or your company.”
Eklof’s company was criminally investigated after its tug Scandia, hauling the barge North Cape, grounded on Moonstone Beach in Rhode Island on Jan. 19, 1996, spilling about 828,000 gallons of home heating oil. The tug caught fire during a storm, and the crew had to abandon ship. Over the next week, more than 3 million gallons of oil was removed from the barge, which was refloated.
Despite cooperating with authorities, Eklof’s company was subject to a lengthy investigation. The company reached an agreement with prosecutors, pleading guilty to violations under OPA ’90, the Migratory Bird Treaty Act and the Rhode Island Pollution Control Act. Criminal penalties of $8.5 million and civil penalties of $11.3 million were assessed.
Shirley, of Holland & Knight, called the North Cape case, “the most egregious case I’ve ever seen. It really got my attention,” he said. “It concerned me a lot because a prosecutor who admitted he was totally lacking in maritime knowledge imposed as part of the plea-bargain agreement construction and operational requirements on Eklof Marine greater than those imposed by the Coast Guard.”
This trend means that mariners involved in oil spills or other casualties are in the awkward position of having to help authorities clean up the incident, while worrying that their actions may end up being used against them in a criminal trial. “Managing the pervasive threat of strict criminal liability, by its very nature, prevents a responsible party from cooperating fully and completely in response to an oil-spill situation,” said Thomas A. Allegretti, president of the American Waterways Operators.
The way the laws are being enforced also makes it difficult for salvors. “What happens now when a ship has a casualty, because of the risk and concern for criminal liability, everybody shuts up, and the salvor does not get the information he needs from the most readily available sources,” Shirley said. Instead, the salvors must get the information for themselves. That takes time, during which the vessel remains an environmental hazard.
Mariners have to work with the authorities during an emergency, Chalos said. “I’m not saying that when the ship is floundering around, call your lawyer instead of the Coast Guard. But once everything calms down, the mariner has to try and consult with his legal adviser.”