Page 62: of Maritime Reporter Magazine (June 1998)

This trend toward industry standard-setting offers real opportunities both for the mar- itime industry and for the U.S.

Coast Guard (USCG), the indus- try's primary regulatory agency. It allows the USCG to effectively focus its regulatory efforts and enforcement resources where those scarce resources are most needed, while at the same time encouraging responsible operators to go beyond simple compliance with the regulatory floor. Given the shared goals of continually enhancing marine safety and envi- ronmental protection, industry standard-setting initiatives like the AWO Responsible Carrier

Program, and its external counter- part, the USCG-AWO Safety

Partnership, offer a meaningful way to leverage USCG and indus- try resources in support of these critical objectives. By working together in developing a regimen of best safety practices, the indus- try and the Coast Guard are achieving a higher level of marine safety and environmental protec- tion than would be possible through government regulation alone.

Criminal Enforcement

Another less positive trend impacting the barge and towing industry is the increased use of strict criminal liability statutes to prosecute oil spills. As a result of this trend, responsible operators who transport oil are unavoidably exposed to potentially immeasur- able criminal fines and, in the worst case scenario, jail time.

Instead of defining a crime as the occurrence of a knowing, inten- tional act or conduct so egregious that "negligence" has occurred, as did the landmark Oil Pollution Act of 1990 (OPA 90), strict liability statutes impose criminal sanctions without the requirement of prov- ing criminal knowledge, intent or even negligence. In other words, a company can take every prudent step possible to avoid a spill, but just the occurrence of the spill itself can result in criminal prose- cution. This trend has created an atmosphere of extreme uncertain- ty for companies engaged in the transport of petroleum products.

Moreover, this atmosphere is undermining the very objectives which OPA 90 sought to achieve, namely to enhance the prevention of and response to oil spills. It leaves operators with only one course of action in eliminating the risk of criminal liability — to leave the business of transporting oil products completely. If this were to happen, the least experienced mariners or the least responsible operators could become the only available carriers for the nation's most hazardous cargoes.

Certainly, AWO completely sup- ports the vigorous pursuit and prosecution of operators who vio- late laws. What is a cause for real concern, however, is the prospect of responsible companies being advised by counsel not to cooperate with a USCG investigator or boarding officer because anything they say could end up being used against them in a criminal pro- ceeding. That scenario does not serve the best interests of the industry, the USCG, or a public

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