Criminal Liability in Maritime Accidents

September 3, 2010

Criminal Liability in Maritime Accidents
By Thomas Russo
DRI Admiralty and Maritime Law: Selected Topics, pgs. 43-56, 1999

Introduction

On March 24, 1989, the EXXON VALDEZ ran aground on Bligh Reef and spilled over 11 million gallons of crude oil into the pristine waters of Prince William Sound in Alaska. This was the largest oil spill in American history. The EXXON VALDEZ was a watershed event which has forever changed the way the American people, government, environmentalists, media and industry view and deal with oil pollution resulting from ship accidents.

Now, in addition to the typical civil liability exposure that ordinarily flows from any maritime accident, if such an accident results in pollution there will likely be a criminal investigation. Additionally, depending on the facts, as well as the political climate, criminal charges may be leveled. Such charges could be against individuals, such as crewmembers; or corporate officers of the company owning or opening the vessel; or against the company itself.

Prior to the grounding of the EXXON VALDEZ, mariners never dreamed of criminal penalties resulting from maritime accidents caused by errors of navigation or management of a vessel. The criminal prosecution of Captain Hazelwood, Exxon Shipping Company and Exxon Corporation changed all of that. It is now critical that shipowners and their lawyers be aware of possible criminal exposure flowing from maritime accidents to which they may be subjected. Indeed, the criminal conviction of crewmembers and shipowners will result not only in penalties involving jail and substantial fines, but may also result in unlimited civil liability under Oil Pollution Act of 1990, and the awarding of punitive damages in civil suits.

Accordingly, it is important for maritime lawyers to have a general insight into criminal investigations and prosecutions and how they will affect the maritime industry in the future. This article is meant to be an introduction for maritime lawyers into the uncharted waters of criminal liability stemming from maritime accidents.

The Nature of Criminal Liability

There are two categories of statutes imposing criminal liability arising from ship collisions and groundings. First, if there is pollution incidental to a maritime accident, criminal liability for violation of state and federal environmental statutes may be imposed. Second, regardless of whether there is pollution, state and federal general criminal statutes imposing criminal liability for damage to property, personal injury and loss of life will come into play.

It is logical that in a criminal investigation of a maritime accident the focus of criminal liability under either of these categories will first be on the crewmembers, then on the corporation, and ultimately on corporate officers.

Depending on the circumstances, the crewmembers navigating and controlling the vessel could bear criminal liability for their actions under both environmental statutes and general criminal statutes. For example, in the EXXON VALDEZ grounding, Captain Hazelwood was charged under environmental statutes for the negligent discharge of oil, as well as under general criminal statutes for criminal mischief, reckless endangerment and operating a vessel while intoxicated. In addition, the shipowner corporation may be held vicariously liable for the acts of crewmembers acting within the scope of their employment if such acts constitute a violation of environmental statutes and, under certain circumstances, general criminal statutes. Additionally, corporate officers can be held criminally liable under environmental statutes merely because of their position of responsibility in the company, regardless of their actual knowledge or participation in any culpable conduct. Finally, corporate officers can be held criminally liable for violation of general criminal statutes depending on their actual knowledge of the facts surrounding the accident and whether they are committed acts contributing to the accident.

Mens Rea

Historically, the courts have recognized that in order to be guilty of a crime, a person must have criminal intent or mens rea. Thus, in order to be guilty of a crime, a perpetrator has to have a guilty or wrongful purpose, or guilty knowledge or willfulness. The mental state necessary to trigger criminal liability will vary from statute to statute. In maritime accidents generally, criminal liability will in most instances be predicted upon the following mental states for the prosecution of individuals: willful or knowing conduct, negligence, criminal negligence, recklessness and willful ignorance.

The basic idea running through the traditional criminal law was not to criminalize conduct absent a showing of evil intent or motive or which would be traditionally considered a civil wrong, or traditionally addressed by civil remedies. Most judicial interpretations of traditional general criminal statutes have incorporated the concept of mens rea even if not specifically spelled out in the statute. Accordingly, it should be expected that in any prosecution of general criminal statutes, such as manslaughter, criminally negligent homicide, reckless endangerment or criminal mischief, the prosecution will always have to prove a requisite criminal intent, either as defined in the statute or as incorporated by the common law.

Unfortunately, this sound reasoning concerning minimal intent requirements was abandoned in a particular category of statutes dealing with the public welfare, including environmental statutes. These "public welfare" statutes were initially concerned with the regulation and protection of the public from adulterated food and drugs. Thus, the courts reasoned that the public safety outweighed the traditional requirement of criminal intent. Such statutes came into being to protect the public from the dangerous hazards resulting from the industrial revolution. In approving the criminal penalties imposed under these statutes, the U.S. Supreme Court in United States v. Dotterweich stated:

Congress extended the range of its control over illicit and noxious articles and stiffened the penalties for disobedience. The purpose of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words.

Because environmental laws are specifically designed to protect the public safety and welfare, they have been constructed by the courts in accordance with Dotterweich — in a manner which maximizes public protection. Consistent with this approach, criminal environmental statutes can even be strict liability statutes, such as the Refuse Act, or impose criminal liability for failure to comply with environmental regulations even when the violator was unaware that his conduct violated a law or regulation, or impose criminal liability based upon an individual corporate officer’s position of responsibility in the corporation. According to this public welfare theory, the only mental state required, if any, will be explicitly stated in the statute as opposed to being incorporated through traditional criminal common law. This may result in criminal liability under environmental statutes for conduct which would not rise to the level of criminal conduct in traditional criminal statutes.

Basic Elements of Criminal Liability

Negligence.

In criminal law there has traditionally been a distinction between criminal negligence and civil negligence. Since the days of Oliver Wendall Holmes, American courts dealing with common law criminal cases have held that the civil negligence standard of failure to use reasonable care is not enough to impose criminal liability. Rather, criminal negligence is required to impose criminal liability. A typical definition of criminal negligence is contained in the New York penal law:

A person acts with criminal negligence with respect to a result or circumstance when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

One would expect these "substantial risk" and "gross deviation" requirements to apply in a ship collision or grounding where a general criminal statute containing negligence as an element is charged. For example, in order to prove criminally negligent homicide, the prosecution would be required to show that loss of life in a collision or grounding was caused by the criminal negligence of the defendant. On the other hand, where negligence is included as an element in an environmental statute, one would expect that, in accordance with the public welfare concept, proof of simple negligence alone would be enough for conviction. The criminal negligence provisions of the Clean Water Act have been construed to require only proof of simple negligence rather than gross negligence to sustain a criminal conviction.

Recklessness

Reckless conduct demands a higher level of culpable conduct than negligence. In traditional criminal statutes, the seriousness of a crime will be greater when there is reckless conduct as opposed to when there is only criminally negligent conduct. For instance, reckless manslaughter is a more serious offense than criminally negligent homicide. A typical definition of reckless conduct is that

[A] person acts recklessly with respect to a result or circumstance when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such a nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

While negligence is the failure to perceive a risk, recklessness is to perceive the risk but to consciously disregard it.

Knowing conduct.

While the public welfare approach to environmental crimes permits strict liability statutes, Congress has attempted to prevent the criminalization of truly innocent conduct by expressly including a knowledge element as part of the mens rea requirement in many criminal environmental statutes. In order for criminal liability to attach in this knowing conduct class of offenses, the act must be committed knowingly. An act is done knowingly if it is done intentionally or voluntarily. It is not necessary that the perpetrator be aware that the act is illegal. Also, there is a line of cases which hold that willful ignorance can be considered the equivalent of knowledge. This concept comes into play when the evidence demonstrates that a defendant, usually a supervisor, deliberately closed his eyes to what would have otherwise been obvious to him, or consciously avoided learning of illegal conduct.

In addition to knowing conduct, some environmental statues place a higher degree of criminal liability on conduct which amounts to knowing endangerment. Knowing endangerment occurs when a person, through the knowing violation of the statute, puts another person in danger of death or serious bodily injury. A finding of knowing endangerment will significantly increase a criminal penalty. For instance, a knowing violation of the Clean Water Act can result in a fine of up to $50,000 per day and/or imprisonment of up to three years. A conviction for knowing endangerment under the Clean Water Act can result in a fine of up to $250,000 and/or fifteen years imprisonment for individuals and a fine of up to one million dollars for corporations.

Corporate Liability

It is an established principle in criminal law that a corporation can incur vicarious criminal liability for the actions of employees acting within the scope of their employment. Additionally, a corporation may have direct criminal liability for the acts of directors, officers or employees. Direct liability may be imposed if company policies or directions contribute to the accident. For example, in a maritime accident, direct liability could result from being aware of and condoning crew incompetence. Furthermore, corporate actions (depending upon corporate privity or knowledge and control) can result in individual criminal liability for corporate officers in addition to corporate criminal liability for the corporation. Moreover, a corporate officer may be held criminally liable for violation of an environmental statute, even of the officer did not participate in the illegal activity. Under the Responsible Corporate Officer Doctrine, criminal liability can be imposed on corporate officers if they were in a position to know about or prevent the criminal act, even if they did not actually commit the alleged crime. This doctrine is very harsh in that it can result in criminal liability being imposed on a corporate officer merely because of that officer’s position of responsibility as opposed to any particular conduct on the officer’s part. Fortunately, in recent years some circuit courts have been chipping away at the Responsible Corporate Officer Doctrine and rightfully holding that in environmental statues where there is a requirement of knowing violation as an express statutory element of the crime, there must be evidence of actual knowledge of the criminal act before the corporate officer can be held liable.

Criminal Investigation and Prosecution

What is the practical nature of a criminal investigation after a maritime accident? What can the maritime lawyer expect to encounter when he or she is called out in the middle of the night to respond to a ship collision or grounding resulting in an oil spill? It is first of all important to keep in mind that the law enforcement personnel one can expect to encounter in such a circumstance are there to determine whether a crime has been committed and who bears criminal responsibility for its commission. The law enforcement officers are there solely there to gather evidence; they are not there to engage in a friendly fact-finding mission. The cast of characters may include the Coast Guard, EPA, FBI, state police, United States Attorney, local District Attorney and the Attorney General. Each of these is a separate and distinct organization, with its own hierarchies, policies, and agenda. With the exception of the Coast Guard and the civil division of the EPA, the only purpose of the law enforcement personnel is to investigate and prosecute crimes.

The criminal divisions of the EPA, FBI, and state police have investigators who gather facts and evidence and bring it to the prosecutors for evaluation. The Coat Guard has a mixed purpose. It has the responsibility to oversee and insure that a proper cleanup take place, as well as to determine the cause of the accident in order to insure safe operation of vessels and to take corrective administrative action if necessary. It is also important to remember, however, that the Coast Guard has an obligation to turn over any evidence of criminal conduct it discovers in the course of its casualty investigation to the U.S. Attorney. The maritime lawyer, who is most accustomed to dealing with the Coast Guard in it civil capacity, must be aware of this criminal investigatory role, and should be as careful in his dealings with the Coast Guard casualty investigator as he would be in dealing with the FBI or State Police. The U.S. Attorney, District Attorney, and Attorney General are prosecutors who may play an advisory or supervisory role in a criminal investigation. They will make the ultimate decision of whether to prosecute and handle the case through trial.

What can be done on the defense side to counteract the law enforcement investigation team? The most obvious task for the maritime lawyer responding to the scene would be to persuade the law enforcement personnel present that a crime has not been committed and that the event is just an accident which should be dealt with civilly. Unfortunately, if there is significant oil in the water and/or loss of life or serious physical injury, this may be an impossible task. Once it becomes apparent that the investigators will not rule out that a crime has been committed, it then becomes the job of the defense lawyer present to protect his clients’ rights and certainly not to actively assist investigators to gather incriminating evidence.

In this respect, it is important to remember that no one on board a ship can or should be forced to speak to a law enforcement officer investigating the cause of the mishap if there is a possibility that the person may incriminate himself by doing so. It should also be noted that even if the investigator does not give Miranda warnings, any statements made may still be used in a criminal prosecution. As a matter of policy, companies should see to it that crews are not coerced by company officials to give statements to law enforcement officials on the scene.

Each crewmember is entitled to consult with counsel and to have counsel present when being interviewed by law enforcement. The prudent and ideal procedure when there is likely criminal liability would be for an attorney engaged specifically to represent the crewmember to get on board and interview the crewmember involved in the accident as soon as possible after the accident. That attorney would initially make a determination as to whether the crewmember bears any personal criminal responsibility for the accident. If the crewmember does not have any personal liability then he is just a witness and can probably be made available for a law enforcement interview with his attorney present. On the other hand, if the crewmember has real or even potential exposure to liability, such as if the crewmember was involved in the navigation and control of the vessel or in any way contributed to the accident, then the attorney should advise the crewmember to invoke his constitutional rights under the Fifth Amendment to the U.S. Constitution to not talk at this time. Law enforcement will not be shocked if an attorney says he has advised his client not to speak. This is normal practice in a criminal investigation and is the normal advice given by a criminal defense attorney.

Theoretically, all the important witnesses, such as the bridge team, may have potential criminal liability and have legitimate grounds to refuse to be interviewed regarding their culpability in the accident until they engage counsel. Such witnesses may insist on grand jury subpoenas. This situation may be a viable and advantageous strategy in certain situations. In some states, a witness called before a grand jury gets complete immunity, known as transactional immunity, as soon as he responds to the first question posed to him in the grand jury. In the federal system, a witness has to invoke his Fifth Amendment right in the grand jury to be granted immunity. Then, he can be compelled to testify only by being given use and derivative use immunity. Such immunity would protect him from being prosecuted based on what he says in the presence of the grand jury or based on evidence derived from what he says in the presence of the grand jury.

In addition to legal representation for the crewmembers when there is criminal liability, separate criminal legal representation should be provided for the corporation to evaluate and protect against corporate liability. Tactically, this could be advantageous for the corporation because it also makes it clear that the corporation is not in charge of how the crewmembers are represented and does not make the corporation look obstructionist if some crewmembers choose to invoke their Fifth Amendment right not to give statements. In most situations the targeted crewmembers and corporation will be able to cooperate and share information under a joint defense theory.

After the criminal investigation is completed, the U.S. Attorney, District Attorney or Attorney General will have to make a decision as to whether or not to charge a crime. They will also need to decide who to charge. These decisions are very much within the discretion of the prosecutor. For this reason, it is always a good strategy for the lawyer representing the crewmembers and corporation to open lines of communication with the prosecutor before the decision of whether to charge is made. Not only will a lawyer be able to get an idea where the case is going, he may also be able to convince the prosecutor not to prosecute by bringing facts favorable to the client to the prosecutor’s attention. This is particularly beneficial in maritime cases where the prosecutor is often ignorant of basic maritime principles and procedures and may be operating under misconceptions.

The Relationship Between Criminal Liability and Civil Liability

It is also important to consider the relationship between criminal liability and civil liability in a maritime accident situation. Initially, we can assume that in every major maritime accident where there is an oil spill and an environmental impact there will also be a deluge of civil cases against the shipowner and crewmembers for damages based on negligence, and punitive damages based on willful or reckless conduct.

Nearly all of the issues which could later be the basis for huge civil recoveries will be the same issues involved in most criminal prosecutions arising out of the same accident. Thus, since a criminal case will invariably be tried before the corresponding civil case, it is very important to preserve the viability of a civil defense by defending vigorously any criminal prosecution of the crew, corporation or corporate officers arising out of a maritime accident.

In practical terms, this means that long before the civil case even gets into serious discovery, the issues relating to negligence, recklessness and the specific facts regarding what happened will have already been determined by a court and jury. For instance, a finding of guilt based on recklessness or negligence, because it is a finding beyond a reasonable doubt, could be introduced as a final determination of that issue in a subsequent civil trial. In other words, a party’s civil liability, including liability for punitive damages, can for all intents and purposes be decided by a criminal conviction arising out of the same incident dealing with the same issues and parties.

Conclusion

It seems safe to say that criminal charges arising out of maritime accidents are more likely since the grounding of the EXXON VALDEZ. Such charges have far reaching repercussions for individuals and corporations. Accordingly, maritime lawyers should be aware of the possibility of criminal charges flowing from maritime accidents and should take measures to protect their client’s interests from both the civil defense and criminal defense point of view.