CRIMINALIZATION OF MARITIME ACTIVITIES Charles M. Davis 2008 Vessel operators, incluing shoresie corporate officers an supervisors, an shipboar officers an crews, potentially are subject to criminal prosecution for a broa variety of unintentional an intentional activities at may result in violation of safety statutes, water pollution, reats to sealife an willife, an injury or ea to crewmembers an e general public. Alough many of e statutes have been e basis of prosecutions in isolate instances prior to 1989 (primarily in cases of persistent an intentional violation of pollution statutes), since e grouning of e Exxon Valez feeral prosecutors, wi increasing frequency, have utilize criminal statutes to prosecute ship-operating corporations, eir corporate officers, an ships officers, seeking very substantial fines an imprisonment not only for intentional acts but negligent acts or omissions which may have resulte in marine pollution or oer major casualty. See, e.g., Unite States v. Hanousek, 176 F.3 1116 (9 Cir. 1999), which rejecte e argument at criminal liability uner e Clean Water Act must be base on a fining of criminal negligence raer an orinary negligence. The following statutes provie for criminal sanctions. Often, ere are provisions for substantial aitional civil fines an penalties. 1. Feeral Water Pollution Control Act, 33 U.S.C. 1251-1376. 33 U.S.C. 1311(a) makes it unlawful for any person to ischarge pollutants into e navigable waters of e Unite States except in compliance wi National Pollution Discharge Elimination System permit. Discharge means any aition of any pollutant to navigable waters from any point source (33 U.S.C. 1311(a)). Pollutant means rege spoil, soli waste, incinerator resiue, sewage, garbage, sewage sluge, chemical wastes, wrecke or iscare equipment, rock, an inustrial waste (excluing sewage from vessels), biological materials, raioactive materials, an heat. 33 U.S.C. 1362(6). 33 U.S.C. 1362(5) efines e person to inclue iniviuals, corporations, partnerships an associations. 33 U.S.C. 1319(c)(6), extens e efinition: person inclues responsible corporate officers. 33 U.S.C. 1319(c) makes e negligent or knowing violation of e Act s prohibitions against ischarge a criminal offense. 33 U.S.C. 4301 provies at any person who negligently spills oil into e navigable waters of e Unite States may be fine up to $25,000 per ay of violation or be imprisone for up to one year (uner 33 U.S.C. 1319(c)). 33 U.S.C. 1319(c)(1) makes negligent violations of e FWPCA misemeanors an intentional or knowing violations felonies. The penalty for a felony violation is a fine of not less an $5,000 to $50,000 per ay of violation, or imprisonment for not more an 3 years, or bo. If e efenant has a prior conviction uner e act, e penalty increases to a fine of up to $100,000 per ay of violation, or imprisonment of not more an six years, or bo. Unite States v. Britain, 931 F.2 1413 (10 Cir. 1991), hel at responsible corporate officers may be personally criminally responsible alough ey personally neier willfully nor negligently cause e violations. Uner 33 U.S.C. 1319(c)(1), intentional violations are felonies: e penalty is a fine of not less an $5,000 - $50,000 per ay of violation, or imprisonment for not more an 3 years, or bo. If e polluter has a prior conviction uner e Act, e penalties increase: e penalties increase to a fine of up to $100,000 per ay of violation, or imprisonment of not more an six years, or bo. Unite States v. M/G Transport Services, Inc., 173 F.3 584 (6 Cir. 1999), reverse ismissal of charges against corporation an its chief engineering officer which owne tow boats which ha umpe oily bilge slops an burne waste ash overboar in remote locations of e rivers -1-
on which ey operate at night, to avoi etection. The jury convicte e company an e officer of conspiracy to violate e Clean Water Act an in aiing an abetting ischarges of prohibite substances wiout a permit. The trial court grante efense motions for acquittal on e wiout a permit counts, on e grouns at ue process preclue holing efenants criminally liable for ischarging pollutants wiout a permit when no permit woul ever have been issue. The court of appeals rejecte at efense: at permits woul not have been issue to ischarge pollutants in e quantities umpe is no efense to charges of ischarging pollutants wiout a permit. 2. Oil Pollution Act of 1990 ( OPA-90 ) 33 U.S.C. Chapter 27. (a) General provisions. 33 U.S.C. 1321(b)(3), prohibits ischarges of oil or hazarous substances in quantities at may be harmful into e waters of e Unite States or e contiguous zone or upon ajoining shorelines or at may affect natural resources belonging to e Unite States. Discharge is efine as any spilling, leaking, pumping, pouring, emitting, emptying or umping. 33 U.S.C. 1321(a)(2). Oil is efine as oil of any kin or in any form, incluing, but not limite to, petroleum, fuel oil, sluge, oil refuse, an oil mixe wi wastes oer an rege spoil. 33 U.S.C. 1321(a)(1). Hazarous substance is any substance at creates a potential for imminent an substantial anger to public heal an welfare, incluing fish an willife, when ischarge. 33 U.S.C. 1321(a)(14), 1321(b)(2)(A). Also see 40 CFR Parts 116-117. A harmful quantity is efine as a ischarge at violates local water quality stanars or causes a film or sheen upon or iscoloration of e surface of e water or ajoining shorelines or causes a sluge or emulsion to be eposite benea e surface of e water or upon ajoining shorelines. 40 CFR 110.2. Criminal liability oes not require proof of criminal intent: only at r e act of ischarging oil was intentional. See Unite States v. Frezzo Bros., Inc., 602 F.2 1123 (3 Cir. 1979). Orinary negligence will support conviction of negligent violation. 33 U.S.C. 1319(c)(1)(A). Knowing violation is a felony. 33 U.S.C. 1319(c)(2)(A). Discharges of oil from a properly functioning vessel engine are excepte from e prohibition. Discharge of any oil accumulate in a vessel s bilge is specifically prohibite. 40 CFR 110.7. The use of ispersant or emulsifiers to circumvent e harmful quantity efinition is prohibite. 40 CFR 110.8. (b) Obligation to report a ischarge. 33 U.S.C. 1321(b)(5) makes any person in charge of a vessel or of an onshore or offshore facility or vessel from which oil or hazarous substance is ischarge in a quantity at may be harmful into waters or shorelines (as efine in e Act) who fails to notify immeiately e appropriate feeral agency as soon as he or she has knowlege of e ischarge, subject to conviction of a felony punishable by a $250,000 maximum fine ($500,000 for corporations) an up to five years in prison. Unite States of America v. Royal Caribbean Cruises, Lt., 24 F. Supp. 2 155, 1998 AMC 1841 (D. P.R. 1997), uphel application of e law to a small oil spill from a foreign-flag vessel in Unite States territorial waters. See also Unite States v. Royal Caribbean Cruises, Lt., 11 F. Supp. 2 1358, 1998 AMC 1817 (S.D. Fl. 1998), which involve a separate incient. There may be more an one person in charge : multiple efenants having auority at various levels can be charge, plus a corporation may be in charge. Apex Oil Co. v. Unite States, 530 F.2 1291 (8 Cir. 1991); Unite States of Royal Caribbean Cruises. Reporting a spill results in limite immunity to an iniviual who makes a report: information reporte cannot be use against e iniviual who mae e report. 33 U.S.C. 1321(b)(5). Reporte information may be use against a corporation or against oer iniviuals. Notice of oil ischarge also is require to be given uner 33 U.S.C. 1906, MARPOL Protocol I; 33 CFR 151.15. Royal Caribbean also rejecte e efense at a truful answer to government inquiries woul expose e iniviual to criminal liability. -2-
3. The Comprehensive Environmental Response, Compensation an Liability Act (CERCLA). CERCLA, 42 U.S.C. 9600 et seq. 42 U.S.C. 9601 prohibits e ischarge or release of hazarous substances, incluing ischarges or releases into navigable waters, e waters of e contiguous zone, an e ocean waters of which e natural resources are uner e exclusive management or auority of e Unite States uner e [Magnuson Act, 16 U.S.C. 1801-82]. 4. Act to Prevent Pollution from Ships, 33 U.S.C. 1901-1911. The Unite States has aopte provisions of e International Convention for e Prevention of Pollution From Ships ( MARPOL ) relating to ischarge of oil, noxious liqui substances an garbage. The provisions regulating e ischarge of garbage inclue plastic oer an certain egraable plastics an naturally prouce plastics. 33 CFR 151.05. Regulations prohibiting e ischarge of plastic apply to 200 miles. Regulations for ischarging unnage, lining an packing materials at float apply to 25 miles. Regulations prohibit e ischarge of victual waste an oer garbage generate in e normal operation of a ship (not mixe wi plastic), but such may be umpe outsie of 12 miles (3 miles if it has been groun pursuant to 33 CFR 151.75). The Unite States legislation applies to all vessels registere in e Unite States or operating in Unite States waters. 33 CFR 151 states aministrative rules promulgate by e Coast Guar relating to e ischarge of oil, noxious liqui substances an garbage from vessels. Part 155 states rules relating to e prevention of pollution ischarges. Part 157 states special rules relating to oil tankers. Part 158 states rules relative to reception facilities. 33 U.S.C. 1908(a) makes it a Class D felony for any person to knowingly violate e MARPOL Protocol, wi a penalty of imprisonment of not more an six years (18 U.S.C. 3581(b)), a fine of $250,000 (18 U.S.C. 3571(b) [$500,000 for an organization]) or bo. Per 33 U.S.C. 1908(a), an amount equal to not more an one-half of e fine may be aware by e court to e person giving information leaing to a conviction. 5. Refuse Act. 33 U.S.C. 407 an 411 prohibit any person to row, ischarge, or eposit from any vessel or from e shore or wharf any refuse matter of any kin or escription whatever... into any navigable water of e Unite States not in compliance wi a permit. Alough is nineteen century statute was originally irecte as preserving navigability of navigable waters, prosecutors an courts have foun it applicable to intentional an unintentional marine oil pollution (or even pollution at reatene to enter navigable waters), irrespective at ere is no resulting obstruction to navigation. It is a strict liability crime : ere is no requirement of intention or even negligence on e part of a person charge wi a violation of e Act e fact at a eposit or oer prohibite conuct occurre is sufficient for conviction. See, e.g., Unite st States v. White Fuel Corp., 498 F.2 619 (1 Cir. 1974). As no proof of intentional misconuct or oer scienter is require, charging a person responsible for any unlawful ischarge or eposit, e Refuse Act has become a favorite of prosecutors, an e agencies which refer matters to prosecutors, as a basis for prosecution. 33 U.S.C. 411 makes violation of 407 a misemeanor punishable by a fine not exceeing $2500 or by imprisonment for not less an 30 ays nor more an one year, or bo. One half of e fine is to be pai to e person or persons giving information which le to e conviction. The Alternative Fines Act, 18 U.S.C. 3571, may be applie to substantially increase e fines for misemeanors. 6. Marine Protection, Research an Sanctuaries Act (Ocean Dumping Act). 33 U.S.C. 1401-1445. The MPRSA regulates e transportation of material from e Unite States intene to be umpe into ocean waters an e umping of material transporte from outsie e Unite States into e territorial sea an contiguous zone of e Unite States. Generally, except as allowe by permits, e MPRSA prohibits e umping of any material in e oceans or territorial -3-
waters. Material is efine matter of any escription, incluing soli waste, inustrial waste, garbage, sewage sluge, an meical waste. 14 U.S.C. 1402(c). The Army Corps of Engineers is auorize by e MPRSA to issue permits for e umping of rege material. The EPA issues all oer permits. 40 CFR Parts 220-229 state e proceures for application an issuance of permits. The MPRSA oes not apply to routine ischarges of effluent inciental to e operation of motor riven equipment on ships or e eposit of material for e purpose of eveloping, maintaining, or harvesting fisheries resources. 33 U.S.C. 1415(b) provies for criminal sanctions for violation of e Ocean Dumping Act. Any person who knowingly violates any provision of e Act or any regulation promulgate uner e Act may be fine or imprisone for not more an five years, or bo. Each ay of a continuing violation is a separate offense. Unite States v. Apex Oil Co., 132 F.3 1287 (9 Cir. 1997), involve charges against two managers of a tanker owning corporation an four vessels masters for conspiring to ispose of cargo-relate oil resiues an waste materials in violation of e Ocean Dumping Act. The Nin Circuit affirme ismissal of one count of violation on grouns at e Coast Guar regulations o not plainly an unambiguously efine oil muck in e efinition of cargo relate oil resiue. The owning corporation plea guilty to charges arising from umping e rags, steel barrels an oer shipboar-generate wastes. 7. Sanctions for negligence an sening an unseawory vessel to sea. 46 U.S.C. 10908 makes it a crime for a person to knowingly sen a vessel to sea in an unseawory state : A person at knowingly sens or attempts to sen, or at is a party to sening or attempting to sen, a vessel of e Unite States to sea, in an unseawory state at is likely to enanger e life of an iniviual, shall be fine not more an $1,000, imprisone for not more an five years, or bo. st Unite States v. Rivera, 131 F.3 222, 1998 AMC 609 (1 Cir. 1997), reverse e conviction of a manager of a tugboat s managing company uner 46 U.S.C. 10908 for knowingly sening a Unite States vessel to sea in an unseawory state likely to enanger e life of an iniviual, on e groun at ere was no evientiary support at knowlege of e efective conition of a towing wire was likely to enanger life. The case arose from e grouning of e tug s oil-carrying barge after e towing wire parte. The court note at 10908 is part of a statutory chapter establishing complaint proceures for seamen reporting unseawory vessels, an e statute originally was esigne to enhance ose proceures by criminalizing a knowing attempt to take a angerous vessel to sea after it was etermine it was unseawory after a complaint as to its seaworiness was loge. The court, in a ictum at rejecte e position urge in e amicus briefs of e Maritime Law Association of e Unite States an oer inustry interests, hel at e statute s plain language, as amene in 1983, creates a stan-alone criminal basis for criminal prosecution, wiout a prior fining or prior complaint of unseaworiness of e vessel. A vigorous issent woul apply e rule of construction at a statute shoul be construe in its textual context, an its application shoul be limite to cases where proceures for correcting unseaworiness uner Chapter 109 have been initiate. As e unseaworiness proceures o not apply to foreign vessels, fishing vessels, harbor vessels, yachts, an vessels on inlan waterways, e Rivera holing extens e criminal offense to vessels beyon ose covere by e proceural provisions. 8. Regulation of carriage of bulk liquis. 46 U.S.C. 3701 et seq. provies for Coast Guar regulation of esign, construction an operation of tank vessels. 46 U.S.C. 3718(b) makes a person who willfully an knowingly violates e requirements of e statute or e regulations promulgate ereuner guilty of a felony. 9. Incompetent operators. 46 CFR 35.05-20 states: -4-
No person shall be engage as a member of a crew on a tank vessel if he is known by e employer to be physically or mentally incapable of performing e uties assigne to him. This regulation was e basis of e criminal charges against Exxon Corporation wi respect to e grouning of e Exxon Valez. 10. Ports an Waterways Safety Act. The Ports an Waterways Safety Act, 33 U.S.C. 1221-1236, broaly provies for regulation to ai in prevention of casualties in transportation of oil an oer hazarous substances in bulk. It provies enforcement remeies for breach of regulations promulgate uner its auority. Regulations inclue 33 CFR 160.215 which requires at e owner, agent, master, operator, or person in charge of any vessel on which ere is a hazarous conition, or e vessel causes a hazarous conition, report e conition to e nearest Marine Safety office of Group office. A hazarous conition is efine to inclue:... any conition at may aversely affect (1) e safety of any vessel,... or shore area or (2) e environmental quality of any port, harbor, or navigable waterway of e Unite States. 33 CFR 160.203. Some of e efenants in e Barge Morris J. Berman grouning in Puerto Rico st iscusse in Unite States v. Rivera, 131 F.3 222, 1998 AMC 609 (1 Cir. 1997), were convicte for violation of 33 U.S.C. 1232(b)(1) for not reporting at e towing wire to e tank barge ha parte. Sanctions inclue in rem liability ( 1232(c)), civil penalties ( 1232(a)), an felony criminal penalties ( 1232(b)). 11. Migratory Birs Treaties Act. 16 U.S.C. app. 701 et seq., an, specifically, 707, makes it a misemeanor for any person to kill any migratory bir or any nest or egg ereof oer an as provie by e act. Killing by pollution is interprete as unlawful. This is a strict liability statute: no intention to kill birs or to pollute, or negligence which results in same, nee be proven. Penalties can be imprisonment up to six mons, or, in e alternative a fine of twice e amount of any benefit erive from e violation plus twice any loss suffere by anoer person. 18 U.S.C. 3571(b)-(c) 12. Carriage of angerous cargoes. 46 U.S.C. 3718, makes it a misemeanor to willfully an knowingly violate e requirements of 46 U.S.C. 3701 et seq. (The Carriage of Liqui Bulk Dangerous Cargoes Act). 13. General safety regulations. 46 CFR 185.100 requires at a vessel be operate in accorance wi applicable laws an regulations an in such a manner as to affor aequate precaution against hazars at might enanger e vessel an e persons being transporte. 46 CFR 185.900 provies at violation of any provisions in 185 will subject e violator to e applicable penalty provisions of 46 U.S.C. Subtitle II. 14. Operating vessel in a negligent manner. 46 U.S.C. 2302(a) makes any person who operates a vessel in a negligent manner at enangers e life, limb, or property of a person liable for a civil penalty of not more an $1,000. 15. Operating vessel in grossly negligent manner. 46 U.S.C. 2302(b) makes it a misemeanor to operate a vessel in a grossly negligent manner, wi sanctions of a fine of not more an $5,000 an/or imprisonment for not more an one year. 16. Negligence of ship s officer which results in loss of life. 18 U.S.C. 1115, often is referre to as e seaman s manslaughter statute, states: Every captain, engineer, pilot or oer person employe on any steamboat or vessel, by whose -5-
misconuct, negligence, or inattention to his uties on such vessel e life of any person is estroye, an every owner, charterer, inspector or oer public officer, rough whose frau, neglect, connivance, misconuct, or violation of law e life of any person is estroye, shall be fine uner is title or imprisone not more an ten years, or bo. When e owner or charter of any steamboat or vessel is a corporation, any executive officer of such corporation, for e time being actually charge wi e control an management of e operation, equipment, or navigation of such steamboat or vessel, who ha knowingly an willfully cause or allowe such frau, neglect, connivance, misconuct, or violation of law, by which e life of any person is estroye, shall be fine uner is title or imprisone not more an ten years, or bo. The stanar for conviction of any crewmember or oer person employe on a vessel or of a public officer is orinary negligence. Unite States v. O Keefe, 426 F.3 274, 2005 AMC 2805 (5 Cir. 2005); Unite States v. Ryan, 364 F. Supp. 2 338, 2005 AMC 1281 (S.D. N.Y. 2005). Ryan hel at e secon paragraph sets a higher stanar of culpability an orinary negligence for corporate executive officers: for a conviction of a corporate officer, ere must be sufficient proof at ey knowingly an willfully cause or allowe e offening conuct. 17. Navigation uties. 33 CFR 164.11(b), a general navigation safety regulation, provies at e owner, master or person in charge of a vessel unerway shall ensure at:... e wheelhouse is constantly manne by person who: (1) Direct an control e movement of e vessel; an (2) Fix e vessel s position.... 33 CFR 164.11(b) requires at e owner, master, or person in charge of e vessel ensures at each person who performs e uties of irecting an controlling e movement of e vessel an fix its position is competent to perform at uty. This regulation also was use to charge in prosecution of Exxon Corporation an its corporate officers for e grouning of e Exxon Valez. 18. Fisheries an willife conservation. The Magnuson Act, 16 U.S.C. 1801-82, provies for conservation an management of fisheries resources off e coasts of e Unite States. 1859(b) provies for criminalization of certain violations of e Act an regulations promulgate uner it. The Lacey Act, 16 U.S.C. 3371-78, prohibits e possession or transportation of fish or willife at was taken in violation of any law or regulation of e Unite States or any state or foreign nation. 3373()(1)(B) makes it a crime for a person to engage in conuct at involves e sale or purchase of proucts knowing at e fish or willife or plants were taken in violation of law. 3373()(2), makes a person criminally liable if he engages in prohibite acts an in e exercise of ue care shoul know at e fish, willife or plants were taken... in violation of... law. Criminal sanctions for violation of e Lacey Act are fines of up to $250,000 for an iniviual an $500,000 for a corporation, an five years imprisonment for a knowing violation ( 3373()(1)(B)), an, for failing to exercise ue care, fines of up to $100,000 for an iniviual an $200,000 for a corporation an one year imprisonment ( 3373(a)). All such unlawfully taken, purchase or transporte fish or willife an e vehicles an vessels on which ey are taken or transporte are subject to forfeiture to e Unite States. 3374. All such unlawful fish an willife (incluing unlawfully-caught goos being importe as cargo), an e vessels on which ey are carrie are subject to forfeiture to e Unite States. 19. False Statements Act. The False Statements Act, 18 U.S.C. 1001, may be e basis of criminal sanctions if any false recor or statement is given to an agency of e Unite States. An example of prosecution uner e statute is Unite States v. Royal Caribbean Cruises, Lt., 11 F. Supp. 2 1358, 1998 AMC 1817 (S.D. Fl. 1998), which uphel application of e act to failure of a ship s officer to make an entry in e ship s Oil Recor Book for ischarge of oily water in e -6-
Bahama Islans. The sanction was applie espite e fact at e ship was uner foreign flag, e officer was a foreign national, an e ischarge occurre in foreign waters. See also Unite States v. Royal Caribbean Cruises, Lt., 1998 AMC 1841 (D. P.R. 1997), which involve a separate incient. Prosecutions uner e False Statements Act is e subject of an extensive article, R. Michael Unerhill, Dumping Oil, Cooking & Books, an Telling Lies: The False Statements Act as Applie to Marine Pollution,, 15 U.S.F. MAR. L.J. 271 (2003). 20. Communicate false istress message or cause Coast Guar to attempt to save lives or property when no help is neee. 14 U.S.C. 88(c), makes it a felony for an iniviual to knowingly an willfully communicate a false istress message to e Cost Guar or cause e Coast Guar to attempt to save lives an property when no help is neee. Unite States of America v. Haun, 2007 AMC 2326 (11 Cir. 2007), hel at no specific intent is require for e crime of causing e Coast Guar to attempt to save lives an property when no help is neee: it affirme e conviction of an iniviual who stage his own isappearance an ha no intent to trigger a Coast Guar search for him. 21. Miscellaneous marine criminal statutes. The following is a partial listing of oer marine criminal statutes: 18 U.S.C. 11 Assaulting, resulting or impeing a feeral officer engage in or on account of e performance of official uties 18 U.S.C. 81 Arson in a maritime jurisiction. 18 U.S.C. 113 Assault in a maritime jurisiction. 18 U.S.C. 114 Maiming in a maritime jurisiction. 18 U.S.C. 371 Conspiracy to commit an offense or to efrau e Unite States. 18 U.S.C. 545 Smuggling goos into e Unite States. 18 U.S.C. 660 Theft or possession of stolen property from a carrier. 18 U.S.C. 661 Theft of personal property of anoer. 18 U.S.C. 662 Receiving stolen property of anoer. 18 U.S.C. 1001 Falsifying statement or entries require by a feeral agency or epartment. 18 U.S.C. 1025 Frau on e high seas or on a U.S. vessel. 18 U.S.C. 1111 Murer. 18 U.S.C. 1112 Manslaughter. 18 U.S.C. 1113 Attempte murer or manslaughter. 18 U.S.C. 1115 Misconuct or negligence of ship officers resulting in ea. 18 U.S.C. 1341 Mail frau. 18 U.S.C. 1343 Wire frau. 18 U.S.C. 1503 Influencing e ue aministration of justice. -7-
18 U.S.C. 1505 Obstruction of agency proceeings. 18 U.S.C. 1510 Bribery to obstruct a criminal investigation. 18 U.S.C. 1511 Obstruction of state or local law enforcement. 18 U.S.C. 1512 Witness tampering. 18 U.S.C. 1513 Retaliation against a witness, victim or informant. 18 U.S.C. 1621 Perjury. 18 U.S.C. 1622 Suborning perjury. 18 U.S.C. 2191 Cruelty by master or oer officer to member of crew of Unite States vessel. 19 U.S.C. 70 Master of vessel obstructing a customers officer boar to enforce revenue or navigation laws. 19 U.S.C. 1581() Failure to stop on comman of an officer of customs. 33 U.S.C. 411 Wrongful eposit of refuse, injury to harbor improvements or obstruction of navigable waters. 46 U.S.C. 60601 Violation of regulations regaring Customs boaring. 46 U.S.C. 12133(c) Prouction of Vessel License or Enrollment. 46 U.S.C. App. 324 Obstructing officer enforcing licensing or ocumentation laws. 46 U.S.C. 56101(e) Unauorize Charter or Transfer of Ownership of U.S. Documente Vessel to Alien. 46 U.S.C. 2303 Master of a vessel involve in a marine casualty must rener assistance to affecte iniviuals an ientify himself an his vessel. 46 U.S.C. 2304 Master of a vessel must rener assistance to any iniviual foun at sea in anger of being lost so far as can o so wiout serious anger to e master s vessel or iniviuals on boar. 46 U.S.C. 3318(c) Felony for unlawful altering lifesaving evices. 46 U.S.C. 3318() Derange or hiner operation of boiler safety evices. 46 U.S.C. 3318(f) Frauulent marking of safety evices. 46 U.S.C. 3718 Willful an knowing violation of angerous cargo statutes an regulations. 46 U.S.C. 4311 Willfully operating vessel in violation of Recreational Vessels Safety Act. 46 U.S.C. 4507() Owner, charterer, master, etc. of a vessel operate in violation of e Uninspecte Commercial Fishery Inustry Vessels Act 46 U.S.C. 5116() Person allowing eparture of a vessel in violation of a loa line -8-
etention orer 46 U.S.C. 5116(e) Causes or allows unlawful moification or removal of a loa line mark. 46 U.S.C. 8503(e) Coerce a witness, inuce or give false testimony in connection wi investigation of a marine casualty. 46 U.S.C. 12309(a) Violation of e chapter regaring numbering of unocumente vessels. 46 U.S.C. 12507(a) Proviing false information regaring ientification of vessels an ownership in connection wi e feeral vessel ientification system. Guielines for Feeral Prosecution of Business Organizations In aition to prosecution of iniviuals eeme responsible for breaches of environmental an safety laws, responsible business entities also may be prosecute. Guielines for feeral prosecution of business organizations are publishe at <http://www.usoj.gov/ag- /cftf/corporate_guielines.htm>. Conflicts of Interest in Investigating Casualties on Behalf of Owners an Their Insurers The longstaning practice of attorneys an ajusters appointe by vessel operators, often esignate by e operators insurers, of obtaining statements from crewmember witnesses as soon as possible after a maritime casualty raises issues as to potential conflicts of interest in e current atmosphere of potential criminal prosecutions of not only e owning corporations, but, of corporate officers an e crewmembers. In many cases, alough it may be in e interest of e owning corporation or oer business entity to cooperate fully wi Coast Guar an oer government investigators, incluing encouraging crewmembers to give statements to investigators, e iniviuals may wish to invoke eir rights to not incriminate emselves. Iniviuals may not be fully aware of e potential of eir criminal liability, at e interests of e owning entity may conflict wi eir iniviual interests, an at any information ey provie not only to government investigators but to e owners representatives may be use against em. It may be contrary to e owners interests to even avise crewmembers an oers at ey shoul consult wi inepenent counsel. Aitional issues have arisen uner e Unite States Sentencing Guielines Manual an e Unite States Attorneys Criminal Resource Manual. The Criminal Resource Manual states at in etermining wheer a non-prosecution agreement woul be appropriate, prosecutors are instructe to consier e completeness of e corporations isclosure in ientifying culprits an proviing information, incluing granting a waiver of e attorney-client an work prouct protections, but wi respect to its internal investigation an wi respect to communications between specific officers, irectors, an employees an counsel. The propose 2004 Amenments to e Sentencing Guielines Manual are available at <http://www.ussc.gov/2004gui/2004cong.pf>. These guielines make it strongly in e interests of e owning entity or oer efenant to assist prosecutors buil e cases not only against emselves, but potential co-efenants, incluing e unconitional waiver of attorney-client an -9-
work-prouct privileges wi respect to any aspect of e investigation an factual an legal analysis of e casualty. The Department of Justice encourages prosecutors to seek waiver of attorney-client privilege an work prouct privilege in weighing wheer a corporation has sufficiently cooperate in e investigation phase so as to not be charge wi a crime. In many cases, any person who investigates a casualty on behalf of a vessel owner may be calle as a witness as to any statements mae or facts observe uring a post-casualty investigation. Investigation an Vessel Searches for Possible Criminal Activity Two recent ecisions have greatly broaene e auority of Coast Guar officials to boar an inspect vessels wiout warrants an to make warrantless searches for evience of criminal r activity on e vessels. Unite States v. Varlack Ventures, Inc., 149 F.3 212, 1999 AMC 255 (3 Cir. 1998), uphel e constitutionality of 14 U.S.C. 89(a), which permits warrantless boaring an searches of vessels in Unite States waters an upon e high seas if e Coast Guar or oer officials have reasonable suspicion of criminal activity. In Unite States v. Boynes, 149 F.3 208, r 1999 AMC 249 (3 Cir. 1998), Coast Guar officers mae ree separate warrantless inspections of a vessel. The first was from alongsie e vessel which was observe to ischarge a ark brown liqui. The Coast Guar notifie e owner/master at ey were investigating e incient an instructe him to bring e vessel to a Coast Guar ock for inspection. Before e appointe hour, ey boare e vessel wi e consent of e owner an note oil in e engine room bilge an oil leaking from a fuel line in e engine room. The owner master was arreste when he appeare at e Coast Guar ock, but wiout e vessel, which en was in ryock in e British Virgin Islans for repairs. The Coast Guar boare e vessel in e British Virgin Islans e next ay wiout a warrant an vieotape an photographe e interior an exterior of e vessel. In e resulting criminal prosecution of e owner/master, he move to suppress evience obtaine uring e ir warrantless search of e vessel. The istrict court grante e motion. The Thir Circuit reverse, holing at a Coast Guar search of a vessel wiout warrant while e vessel was in foreign territory i not violate e Four Amenment, because no warrant was require uner n exigent circumstances. Unite States v. One Big Six Wheel, 166 F.3 498, 1999 AMC 951 (2 Cir. 1999) (a Gambling Ship Act prosecution, not an environmental case), involve interpretation of expansion of e territorial sea for purposes of criminal jurisiction. The court hel at e efinition of territorial waters is e Gambling Ship Act was tie to e efinition of territorial waters in oer existing regulations, which en was ree miles, an subsequent extension of criminal jurisiction to twelve miles oes not change e ree mile limitation. Application of Unite States Criminal Law to Foreign-flag Vessels an Their Crewmembers Wilenhus s Case, 120 U.S. 1, [retro] 2005 AMC 2095 (1887), mae clear at absent exemption by an applicable treaty, a foreign merchant vessel which enters Unite States waters for purposes of trae, an its crewmembers, are subject to jurisiction of local courts an may be punishe for crimes committe on e vessel. State Criminal Jurisiction over Acts on High Seas an Foreign Waters -10-
State of Alaska v. Jack, 2006 AMC 206 (Ak. 2006), hel at states have extraterritorial criminal jurisiction over activities on Unite States flag vessels wi respect to acts on e high seas (which inclue foreign territorial waters), if e states have sufficient interest, ere is no conflict wi feeral law, an ere is no prosecution of e crime by feeral or foreign auorities. -11-