MaritimeCasualties:

Civil or Criminal?_________________________________

Wayne D. Meehan

Incidents Giving Rise to CriminalInvestigations/Prosecutions

• Oil Pollution

• Seaman’s Manslaughter

• False Statements

• Obstruction of Justice

Oil PollutionRefuse Act

Clean Water Act

Liability Standards

Vary with statute, but Liability can bebased on negligence, willful conduct orstrict liability

Penalties

Imprisonment or fines

Seaman’s Manslaughter

Title 18 Section 1115 of the U.S. Criminal Codecriminalizes misconduct or negligence which causes adeath. Three categories of individuals are potentiallyliable:

1. Ship's officers, crewmembers or pilots;

2. Those having responsibility for the vessel'scondition, such as owners, charterers, andinspectors; and

3. Corporate executives for entities responsible forcontrol/management of the vessel.

Seaman’s Manslaughter

Liability Standards

• No need for criminal intent

• Criminal exposure based on simplenegligence.

• For corporate executives, exposure forcausing or allowing conduct which results indeath.

Penalties

Fines or imprisonment for up to ten years orboth

False StatementsAct to Prevent Pollution from Ships (“APPS”) providesfor fines and imprisonment for false entries in OilRecord Book ($500,000 per charge)

Under 18 USC Section 1001, anyone who knowinglyand willfully provides a false statement or document tothe Federal Government is subject to fines andimprisonment for up to 5 years.

e.g. Oily Water Separator Prosecutions

OSG – 2005: $37,000,000 Fine

Evergreen - 2005: $25,000,000 Fine

MSC Shipmgmt - 2005: $10,500,000 Fine

Investigating Authorities

• U.S. Coast Guard (USCG)

• National Transportation Safety Board (NTSB)

• Various Federal and State agencies

USCG reports - inadmissible in civilproceedings.

46 USC§6308

NTSB reports – opinions and conclusionsinadmissible in civil proceedings but factualfindings likely admissible. 49 USC §1154(b)

So why are USCG and NTSB investigationsimportant???

Investigations/Reports

Interaction with U.S. Coast Guard

Be aware:

• USCG must notify U.S. Attorney ofMarine Boards of Investigationand the nature of the investigation.46 CFR §4.09-25.

• USCG regulations require that anyevidence of criminal liability shallbe referred to the U.S. AttorneyGeneral. 46 CFR §4.23-1

• Any statements given in context ofUSCG investigation are notprivileged and can be used incriminal prosecution

Interaction with NTSB

Be aware:

• Evidence developed byNTSB is shared withother agencies, includingFBI.

• Statements given toNTSB are not privilegedand may be used incriminal prosecutions

Civil Claims

Total paid:$87,856,096.02

Three CriminalProsecutions

Captain

Assistant Captain

Port Captain

Staten Island FerryCasualty

October 2003

Tug Caribbean Sea/Barge Resource Collisionwith Amphibious Tour Boat DUKW 34

July 2010Criminal Prosecution based onSeaman’s Manslaughter and FalseStatements under 18 USC Section 1001

Recommendations

1. Consider criminal implications early on and retaincounsel with criminal maritime experience

2. Recognize that you are not dealing with just a civil case

3. Move quickly to put your team in place

4. Avoid preliminary reporting to the extent possible

5. Be sure to preserve all documents and physicalevidence