Page 58: of Maritime Logistics Professional Magazine (Q1 2011)

Maritime Risk

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58 Maritime Professional 1Q 2011 enforced so that it was generally effec- tive in preventing and detecting crimi- nal conduct. Significantly, the USSG provide, at § 8B2.1(a): “The failure to prevent or detect the instant offense does not necessarily mean that the pro- gram is not generally effective in pre- venting and detecting criminal con- duct.”

The compliance and ethics program referred to in the USSG is a specialized risk management scheme focused on compliance with federal laws and regu- lations. The basic concept is no differ- ent than any other risk management scheme. In fact, with a few additions, a safety management system (SMS) established in accordance with the ISM

Code could function as a USSG com- pliance and ethics program.

ENVIRONMENTAL

PROTECTION

Society should establish means whereby a clean environment is encour- aged and a polluted environment is dis- couraged. Three primary methods for discouraging a polluted environment are: societal disapproval, civil sanc- tions, and criminal sanctions. Societal disapproval includes such things as say- ing something to a person who litters.

Civil sanctions include requiring some- one who pollutes to pay damages to those who are injured thereby (includ- ing natural resource trustees in the case of damaged natural resources) and civil penalties in appropriate situations.

Criminal sanctions, including incarcer- ation and criminal fines, should be, and generally are, reserved for serious envi- ronmental violations – those involving intentional or reckless actions.

The availability of different potential means of expressing societal disap- proval allows for consideration of vari- ations in culpability and impact. A per- son who by means of an accident or through simple negligence kills another may be required to pay damages to the family or the estate. A person who through gross or criminal negligence kills another may be sentenced to prison for several years, in addition to paying damages. But a person who intentional- ly kills another may go to prison for the remainder of their life. The ultimate event – causing the death of another – was the same, but the expression of societal disapproval was different because the level of culpability was dif- ferent. This all makes good sense, and is widely accepted and applied.

There is, though, one venue in which recognition of variations in culpability, impact, and punishment does not apply – the maritime sector. Experience shows that, even though the maritime sector is recognized as vital to our econ- omy, mistakes by mariners are not tol- erated. Instead, mistakes in the mar- itime sector – easily culled from current events – are routinely prosecuted to the full extent of the law.

THE MARITIME SECTOR:

SELECTIVE PROSECUTION?

On March 2, 2006, the container ship

Zim Mexico III was departing the port of Mobile under the control of a pilot.

The master, Wolfgang Schroder, was also on the bridge. The pilot decided to turn the ship around in the confined waterway, even though no tugs were being utilized. To accomplish this maneuver, he relied on the bow thruster.

During the maneuver, the bow thruster failed. The bow of the ship allided with a crane that was located on the edge of the dock. The crane collapsed, striking and killing a contract electrician work- ing nearby. The master was charged with violation of the Seaman’s

Manslaughter Statute, a law first enact- ed in 1838, providing that every mariner by whose negligence on a ves- sel the life of any other person “is destroyed” shall be fined or imprisoned for not more than ten years, or both.

Evidence indicated that an electrical problem with the bow thruster had been mentioned at two prior ship safety meetings. The master moved for dis- missal of the charge, contending that, at

LEGAL ANALYSIS

There is, though, one venue in which recognition of variations in culpability, impact, and punishment does not apply – the maritime sector. Experience shows that, even though the maritime sector is recog- nized as vital to our economy, mistakes by mariners are not tolerated. Instead, mistakes in the mar- itime sector – easily culled from current events – are routinely prosecuted to the full extent of the law.

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