Page 59: of Maritime Logistics Professional Magazine (Q1 2011)

Maritime Risk

Read this page in Pdf, Flash or Html5 edition of Q1 2011 Maritime Logistics Professional Magazine Maritime Professional 59 most, he may have engaged in simple negligence, not criminal negligence as is normally required to sustain a crimi- nal conviction. The court ruled that, in a prosecution for violation of the

Seaman’s Manslaughter Statute, the government need only prove simple negligence. This statute allowing for prosecution of a mariner for manslaughter based on simple negli- gence has no counterpart in any other profession or activity. Captain Schroder was convicted of violation of this unique statute and spent four months in prison before his eventual release.

Petitions to Congress to repeal or amend this antiquated statute so as to bring it into line with the general rule have been ignored.

On November 28, 2004, the bulker

Selendang Ayu departed Seattle en route Xiamen, China, loaded with a cargo of 66,000 tons of soy beans and carrying 340,000 gallons of fuel oil as bunkers. Eight days later, while the ship was transiting the Bering Sea in heavy weather, the number three cylin- der in the main engine suffered a cracked liner. On advice of the engi- neering staff at company headquarters in Malaysia, the chief engineer secured the main engine and isolated the dam- aged cylinder. The engine was capable of operating with one cylinder off-line.

Unfortunately the main engine could not be restarted in the extremely adverse sea conditions. The US Coast

Guard was alerted, albeit two hours after the engine was shut down.

A Coast Guard cutter and two small commercial tugs were dispatched to the scene. These were the only available response assets in the Bering Sea area.

A tow was attempted, but the towline broke as a result of the high sea state and the large size of the Selendang Ayu.

On December 8, the ship grounded on the north coast of Unalaska Island in the

Aleutian Chain. Shortly thereafter, the ship broke in two, spilling most of its oil and much of its cargo. Numerous crested auklets wintering offshore were killed as a result of the oil spill.

The ship operating company was ulti- mately charged with two counts of vio- lating the Refuse Act of 1899 and one count of violating the Migratory Bird

Treaty Act. These are strict liability crimes, meaning that the Government is not required to show intent or even neg- ligence. The mere fact that oil and soy beans from the company’s ship spilled into the water and that some migratory birds died is sufficient for a conviction.

The stated punishment for these crimes is a total of $65,000, but through appli- cation of the Alternative Fines Act, the

U.S. Attorney insisted on a penalty of $10 million and three years probation.

The company reluctantly agreed and entered a guilty plea.

Game bird hunters were sometimes prosecuted for shooting protected migratory birds, until they got the statute amended to create a major exception for hunting. The most promi- nent prosecutions nowadays for no- fault violation of the Migratory Bird

Treaty Act are with regard to oil spills from ships.

In early prosecutions for violations of the Refuse Act of 1899, courts required the prosecution to demonstrate evi- dence of intent (or at least negligence) on the part of mariners. That subtlety was lost over the years, with courts now holding that if refuse (meaning virtual- ly any matter) enters the waters of the

United States, the actor who allowed the deposit to occur may be found guilty, without regard to intent or negli- gence. As with the Migratory Bird

Treaty Act, most prosecutions under the

Refuse Act are found in the maritime sector. Prosecutors exercise their discre- tion so as to seldom bring similar charges in non-maritime cases.



These are only two examples of the differing treatment accorded the mar- itime sector under the criminal laws of the United States. Prosecutors, and the

Department of Justice, aver that they maintain an evenhanded approach to law enforcement, but the evidence tends to indicate otherwise. And this is not just a prosecutorial bias. The public is all too supportive of throwing the book at mariners and ship owners brought into the halls of justice. While everyone supports equal justice under the law as an abstract principle, it seems to fall by the wayside in maritime matters.

What is the incentive for a ship owner or a master to engage in a rigorous risk management program when he or she knows that little sympathy will be demonstrated in the event of the slight- est deviation? This is made even worse by the realization that this disincentive only exists with regard to maritime community. To date, all efforts to get prosecutors and the public to recognize the existence of this cognitive disso- nance have proven ineffectual, often met with angry denial (the first sign of cognitive dissonance).

Risk Management in an Era of Cognitive Dissonance

The Author

Dennis Bryant is a retired Coast Guard

Captain and maritime lawyer, now specializ- ing in maritime regulatory consulting. On active duty, he supervised the Coast Guard’s implementation of the Oil Pollution Act of 1990 (OPA 90) and, before that, served as the agency’s Law of the Sea Officer. Mr.

Bryant advises clients on compliance with federal, state, and international maritime requirements as well as publishing an e- newsletter intended to keep readers aware of the latest governmental actions relevant to the marine industry.

Maritime Logistics Professional

Maritime Logistics Professional magazine is published six times annually.