The evils of criminalization

The following article by Capt. Michael R. Watson, president of the American Pilots’ Association, first appeared in the APA’s newsletter, On Station. It is posted here with the permission of the APA.

Though fallout from the COSCO BUSAN accident continues and legal proceedings remain sensitive, I feel compelled to discuss a related matter: the criminalization of marine casualties.  I have regularly spoken with leaders from Congress, federal agencies, and shipping interests about the dangerous trend of criminalization and have stressed that this problem threatens the industry as a whole.

Of course, when I criticize “criminalization,†I am referring to criminal charges filed against mariners for unintentional conduct that is at worst negligent, not to intentional or willful wrongdoing or even recklessness.  That’s a different matter.  But, criminal charges for marine casualties based on simple negligence or strict liability, as in the misuse of the Migratory Bird Treaty Act (a 100-year old law outlawing the hunting of protected birds), are not only irrational, counterproductive, and harmful to the industry and mariners, they are fundamentally unjust.  I will continue to speak against this practice.

As we know too well, given the COSCO BUSAN accident, pilots are not immune from this criminalization trend.  All of us have followed very closely the criminal proceedings in this case. In fact, the accident and its aftermath have consumed the work of the APA for nearly two years.  We have been deeply involved in all aspects of the accident and the various investigative responses to it.

For his role in the accident, the COSCO BUSAN pilot has plead guilty to causing the death of birds subject to the Migratory Bird Treaty Act and to negligently causing the discharge of oil into U.S. waters. In July, the pilot was sentenced to 10 months in prison.  According to the Justice Department website, this is one of the longest prison terms given for an environmental crime in several years and may well be the longest for unintentional conduct ever.

On behalf of all APA members, I have both publicly and in meetings with senior government officials, made clear my strong opposition to the criminal charges in this case.  Criminal charges were not appropriate or necessary.  The pilot has lost both his state and federal pilot licenses, is a party in numerous multi-million dollar civil suits, and faces huge legal defense costs.  He will never pilot again.  He, without question, has been sufficiently held accountable without the criminal charges.

This is believed to be the first time a pilot in the U.S. was criminally charged in a ship casualty.  Given that pilots in other countries have faced criminal prosecution in the past, however, none of us should have believed we would be exempt from this trend.

There have been several grossly inaccurate reports and discussions regarding the long-term impacts of the criminal prosecution of the COSCO BUSAN pilot in some media and trade magazines — the Maritime Executive magazine in particular. Contrary to what you may have read in these publications, this criminal prosecution is not the first step in a campaign directed at pilots and does not suggest a changing view of the role or responsibility of the pilot.

The use of criminal laws to address non-intentional conduct in maritime casualties, though unfair and unnecessary, has been going on for many years.  Shipping companies and crewmembers have been criminally charged, and ship masters and company officials have been put in jail.  We are the most highly trained and proficient mariners in the world and are counted on by the citizens of the state in which we are licensed to exercise independent judgment to protect their waters.  It would have been naïve to think that pilots, given our critical role in navigation safety, would be immune from the outrageous trend.

Understanding this new reality, we, as professional pilots, must move forward, continue to seek ways to do our job better, but also retain perspective and continue to keep an even keel.

– Captain Mike Watson

By Professional Mariner Staff