Department Of Justice

  • There are a number of federal and state statutes that intentionally and justifiably impose strict criminal liability.  Persons who manufacture hazardous explosives and those who keep dangerous animals create serious risks to public safety.  Clearly placing the burden of potential criminal liability, even in the absence of criminal negligence or intent, on those persons and entities is appropriate.
     
    There are other statutes, though, that fail to disclose whether the authors intended for the criminal penalties included for noncompliance to be strictly applied or whether criminal liability requires proof of criminal negligence or specific intent.  Two such statutes of interest to the maritime community are the Refuse Act of 1899 and the Migratory Bird Treaty Act (MBTA).
     
    The Refuse Act was adopted to address the problem of intentional dumping of trash, waste, and refuse into the navigable waters of the United States, which was reaching serious proportions during that era.  The Refuse Act does not address scienter.  The early court decisions relating to the act followed the judicial concept that statutes should be interpreted as being consistent with the common law unless otherwise clearly indicated.  These courts held that scienter was a necessary, albeit unstated, element of the offense when criminal sanctions were to be applied.  Only later did courts begin interpreting the statute literally, allowing convictions when there was no proof of intent.  Now, such prosecutions and convictions have become commonplace in those cases where prosecutors fail to exercise discretion in their charging.
     
    The MBTA was enacted in order to implement the Migratory Bird Treaty between the United States and Great Britain (on behalf of Canada).  This was during an era when birds were being slaughtered at a tremendous rate and had already resulted in the extinction of the passenger pigeon and various other species.  The goal of the treaty and the statute was to protect migratory birds, which includes almost every bird in North America, from unauthorized hunting and hunting methods.  The statute provides, in pertinent part, that it is a criminal offense to improperly take or kill any migratory bird.  Unfortunately, like the Refuse Act, the MBTA does not address scienter.  Early cases were confined to prosecutions for improper hunting, so criminal intent was not litigated.  Later, though, aggressive prosecutors began utilizing the MBTA, like the Refuse Act, to go after individuals other than hunters and entities that unintentionally killed migratory birds.
    On 22 December 2017, the Department of the Interior Office of Solicitor issued a memorandum stating that it is now the Department’s policy that the MBTA does not prohibit the incidental taking of migratory birds.  Henceforth, the Department will only pursue cases involving affirmative actions that have as their purpose the taking or killing of migratory birds.  Some may argue with the analysis in the memorandum or with its rather sweeping policy change.  A bigger problem is that it only impacts the policy of one federal department, which has limited authority in the enforcement of the MBTA.
     
    It has been the policy of the Department of Justice, in action if not in writing, to pursue prosecutions under the Refuse Act and the MBTA whenever the federal prosecutor (at the Department Headquarters or at a local Office of the US Attorney thought that it was appropriate.  There seems to be no detailed guidance to control that discretion.  The Refuse Act was first used to prosecute a company for the accidental release of oil into the water during the 1930s.  The MBTA was first used in such a manner following the 1989 grounding and oil spill of the Exxon Valdez.  Subsequently, the Refuse Act and/or the MBTA routinely appear in charges brought following an oil spill.
    In the late 1990s, the maritime community championed an attempt to insert scienter provisions in both statutes.  That was met by a vigorous pushback from the Department of Justice.  Senior prosecutors from the Environment and Natural Resources Division assured the maritime bar on several occasions that there would never be a prosecution where the only charge was for violation of either the Refuse Act or the MBTA.  Such offenses were only charged to increase bargaining leverage in seeking a plea agreement from the defendant for other offenses that included a scienter requirement.  The maritime community backed off, given such assertions.  
     
    On 6 December 2004, the bulk carrier Selendang Ayu was en route from Seattle, Washington to Xiamen, China carrying 66,000 tons of soybeans.  It also had approximately 340,000 gallons of bunkers and other petroleum products (lubricants, etc.) on board.  During a winter storm in the Bering Sea, the ship suffered a major engine casualty.  Despite the best efforts of the engineering crew, the engine could not be restarted.  The bulker eventually grounded off the north shore of Unalaska Island and broke its back in the fierce winter storm, spilling its entire cargo of soybeans as well as its bunkers and other oils.  Several thousand seabirds died as a result of the oil spill.  The owners of Selendang Ayu spent millions on the environmental response effort and then millions more on the removal of wreck from the isolated shore (full removal was insisted upon by the State of Alaska, which had previously allowed wrecks in similar locations to deteriorate in place).  Millions were also paid in natural resource damage claims.  None of these expenditures were wholly inappropriate.  The US Department of Justice, though, decided that criminal prosecution of the owners was necessary.  After opening the case, it could find insufficient evidence of either intentional or negligent criminal conduct.  Not deterred, DOJ filed charges against the owners for violation of the Refuse Act (for discharging soybeans in navigable waters of the United States) and for violation of the MBTA (for “taking” migratory seabirds that had ingested the spilled oil).  The owners were not able to argue that they did not intend the grounding to occur; nor could they argue that they were not negligent with regard to the grounding.  Neither argument constitutes a defense to a strict liability offense.  Left with no choice, the owners entered a plea of guilty and paid a criminal fine of $9 million.  This marks the first time in modern history that the Department of Justice has charged a shipowner solely for violation of strict liability crimes.  When asked about this litigation, the prosecutor in the US Attorneys’ Office in Alaska stated that the attorneys in the Environment and Natural Resources Division insisted on this course of action.  When asked, the prosecutors in the Environment and Natural Resources Division insisted that the US Attorneys’ Office in Alaska had done the insisting.
     
    Ship owners and operators are left in an untenable position.  If oil is spilled through no fault of the crew, will the prosecutor be aggressive and pursue all possible charges, including the no-fault ones or, assuming the ship meets all of its civil obligations, will matters end there?  Such outcomes, in criminal matters, should not turn on the roll of the dice.
     
    Congress created this mess by not including in the Refuse Act and the Migratory Bird Treaty Act scienter provisions.  It is time for Congress to step up to the plate.  In the meantime, courts when handling such prosecutions where there is no showing of criminal negligence or intent, should interpret these statutes conservatively and in accord with the common law by requiring evidence of scienter.
     
  • that utilize confidential reporting systems authorized by CIPSEA.  These agencies include, among others, the Department of Agriculture, the Department of Justice, the Department of Energy, and the Social Security Administration.  The Department of Energy alone utilizes the CIPSEA confidential reporting

  • terminals reserve their services for favored clients. In other words, there needs to be a federal probe. This, properly, is the job of the U.S. Department of Justice; it isn’t enough to simply prosecute a certain number of alleged MARPOL violations, and consider it a job well done. Environmental protection

  • Update lations that have been on the books for many years, but these regulations have been suspended for decades, as conceded by the Department of Justice. National Security Entry-Exit Registration System (NSEERS) On August 12, 2002, Attorney General John Ashcroft announced that on September 11

  • to $31 million in the same period 2002. The 2003 figure is after net extraordinary expenses of $49 million, including a fine from the US Department of Justice of $42.5 million and other costs directly related to this issue. Time-charter results per day remained stable during the first and second

  • case is being prosecuted by the U.S. Attorney's Office for the Southern District of Florida and the Environmental Crimes Section of the U.S. Department of Justice with the assistance of the EPA Regional Criminal Enforcement Counsel.

  • The U.S. Department of Justice said that OMI Corporation pleaded guilty to preparing false documents in an effort to cover up the illegal dumping of thousands of gallons of waste oil and sludge at sea. OMI also agreed to pay a S4.2 million fine and serve three years probation. A ship captain and

  • . Mr. Whitehorne, who joined the company in 1975, earned his law degree at St. John's University, School of Law. After service with the U.S. Department of Justice, he was employed by major oil companies in exploration, production and transportation activities of their oil and gas subsidiaries. He was assis

  • The maritime community has increasingly become the target of Department of Justice (DOJ) and state prosecution efforts to pursue criminal sanctions against corporations and senior management involved in maritime transportation incidents. Though many of the prosecutorial efforts involve egregious cases

  • when it was proven that some of its personnel had engaged in improper discharge of waste oil and falsification of the oil record book. Both the Department of Justice and the Environmental Protection Agency (EPA) have written policies providing that, in appropriate cases, they will forego criminal

  • to 24 nautical miles off its coast.  Since state waters only extend out to three nautical miles, this is clearly extra-territorial.  Yet, the U.S. Department of Justice fails to vigorously defend the federal interests in this regard.  If a coastal state can assert jurisdiction out to 24 miles, there seems to

  • by the likes of the USCG or ABS and the cost differential is staggering. Further issues emerge when the regulator is not always the rule maker. The Department of Justice issues Americans with Disabilities Act regulations, which soon will include vessel construction guidelines for passenger vessels, thus leaving

  • MR Feb-24#43 OPINION: The Final Word
lenges related to quality of life)
    February 2024 - Maritime Reporter and Engineering News page: 43

    OPINION: The Final Word lenges related to quality of life factors GAO made six recommendations that may affect this. Currently, reports on also affects the Coast Guard’s ability to the Coast Guard, among other things, these types of issues are expected to be retain personnel. For example, in April

  • MR Feb-24#42 OPINION: The Final Word
GAO: USCG Should Address 
Workforce)
    February 2024 - Maritime Reporter and Engineering News page: 42

    OPINION: The Final Word GAO: USCG Should Address Workforce Recruitment and Retention Challenges By Heather MacLeod, Director, GAO’s Homeland Security and Justice team he Coast Guard has strug- Coast Guard established cyberspace as vessels to determine whether they meet gled for years to recruit an

  • MR Feb-24#27   equally) important.” U.S. Department of Defense (DoD) 
militarily)
    February 2024 - Maritime Reporter and Engineering News page: 27

    ship security, and that’s increasingly (and The MSP ? eet is available to support in MSP, Endurance is still the most equally) important.” U.S. Department of Defense (DoD) militarily useful vessel in the U.S.-? ag The Maritime Security Program sustainment sealift requirements during ? eet.” The

  • MR Feb-24#4  insurer Allianz Commer-
Department of Defense or De- Lewis)
    February 2024 - Maritime Reporter and Engineering News page: 4

    process, or service does not munication and subediting. of Inland Marine for global com- imply its endorsement by the mercial insurer Allianz Commer- Department of Defense or De- Lewis cial based in New York. partment of the Navy. Philip Lewis is Director Research at Intelatus Global Partners. He van Hemmen

  • MR Feb-24#2  Power: The Future is Now
Departments
Matt Hart, Wabtec Corporatio)
    February 2024 - Maritime Reporter and Engineering News page: 2

    NO.2 / VOL. 86 / FEBRUARY 2024 26 Photo on this page and on the Cover: Courtesy ARC 22 Marine Power: The Future is Now Departments Matt Hart, Wabtec Corporation, offers insights on how the megatrends of decar- bonization, energy transition and autonomy drive engine innovations. 4 Authors & Contributors By

  • MN Feb-24#42  Ship Building. Everglades Department.
Barton Named Vineyard)
    February 2024 - Marine News page: 42

    over as Joe Rella has been appointed as presi- acting director of Broward County’s Port Rella Barton dent of St. Johns Ship Building. Everglades Department. Barton Named Vineyard CEO New Leadership at Aker Arctic Vineyard Offshore named Alicia Bar- Aker Arctic has appointed Mika Hov- ton as its new CEO

  • MN Feb-24#41  per minute of off-ship 
Fire Department until it was replaced)
    February 2024 - Marine News page: 41

    J. Celebrezze, was constructed in 1961 by total of 6,000 gallons Paach Marine in Erie, Pa. and was used by the Cleveland per minute of off-ship Fire Department until it was replaced with a new vessel, ? re? ghting capacity. Garret A. Morgan, in June 2023 and put up for auction. GLT said it intends Auction

  • MN Feb-24#39 , is be-
The Washington State Department of Transportation’s)
    February 2024 - Marine News page: 39

    of Washington. state seeks to accelerate its ferry electri? cation program. The WSF ferry system, the largest in the country, is be- The Washington State Department of Transportation’s ing converted to hybrid-electric power by 2040 following (WSDOT) WSF in early December issued a request for in- mandates from

  • MN Feb-24#32  Wind?
By Eric Haun
The U.S. Department of Transportation’s)
    February 2024 - Marine News page: 32

    Regulatoy Update Changes to MARAD’s Title XI: Good News for Offshore Wind? By Eric Haun The U.S. Department of Transportation’s Maritime Ad- U.S. shipowners to obtain new vessels from U.S. ship- ministration (MARAD) in December issued a ? nal rule yards cost effectively through long-term debt repayment

  • MN Feb-24#14  assess-
simulation department in particular. “It’s)
    February 2024 - Marine News page: 14

    know is a valid environment.” Gianelloni was also quick to point out the organization’s On top of that, MITAGS has an international assess- simulation department in particular. “It’s our jewel, in my ment program, the Navigation Skills Assessment Program opinion,” she said. “We do exercises that we just

  • MN Feb-24#8  maintenance spend of $9 
The Department of the Interior’s Bureau)
    February 2024 - Marine News page: 8

    ture amounting to around $283 billion to bring onstream, and advancing new leasing. a recurring annual operations and maintenance spend of $9 The Department of the Interior’s Bureau of Ocean En- billion once delivered, and close to $40 billion of decommis- ergy Management (BOEM) is preparing to lease

  • MT Jan-24#52  and L. Winston Zhang; The Department of Mechanical Engineering)
    January 2024 - Marine Technology Reporter page: 52

    technology. References: 1. “Thermal Management of Lithium-ion Battery Pack with Liquid Cooling”; L.H. Sawa, A. A. O. Taya and L. Winston Zhang; The Department of Mechanical Engineering, National About the Author University of Singapore, Singapore Dr. David Sundin is Founder and 2. “Thermal Management

  • MT Jan-24#14  ship time, 
is the largest department in NOC, with 190 employees)
    January 2024 - Marine Technology Reporter page: 14

    . This range of scienti? c research. National Marine Facilities (NMF) central web-based portal captures each request for ship time, is the largest department in NOC, with 190 employees; the equipment and handles all the contributing planning for each ex- workforce is diverse and employment opportunities

  • MT Jan-24#12  as part of the Canadian Department of Nation-
al Defence’s)
    January 2024 - Marine Technology Reporter page: 12

    and carry sonobuoys to prosecute anti-submarine warfare. The Skeldar V200’s ASW sonobuoy dispensing capability was developed as part of the Canadian Department of Nation- al Defence’s (DND) Innovation for Defence Excellence and Security (IDEaS) program. While manned aircraft have been used to carry sonobuoys

  • MR Jan-24#43 steps to implement the recommendations, such as stating)
    January 2024 - Maritime Reporter and Engineering News page: 43

    steps to implement the recommendations, such as stating Guard was required to obtain and report. Careful monitoring that it will begin to require shipbuilding programs to com- of migrant interdiction data is all the more important given plete the functional design of major systems before starting recent

  • MR Jan-24#42 OPINION: The Final Word
Coast Guard crews 
interdict a)
    January 2024 - Maritime Reporter and Engineering News page: 42

    OPINION: The Final Word Coast Guard crews interdict a Cuban migrant vessel, Atlantic Ocean, March 9, 2023. A GAO report found gaps in the USCG system to capture migrant interdiction data. GAO: Coast Guard Should Address Assets, Workforce and Technology Challenges U.S. Coast Guard photo by Petty

  • MR Jan-24#17 ?  c made it clear that the Department of the Navy – and 
of)
    January 2024 - Maritime Reporter and Engineering News page: 17

    These, as well as other, discussions during TECHNET Indo- were focused on uncrewed maritime vehicles. Here are some Paci? c made it clear that the Department of the Navy – and of the highlights: especially the U.S. Paci? c Fleet – have a strong commitment to an accelerated development path for uncrewed

  • MR Jan-24#4  Lakes Region at Sherwin-
Department of Defense or De- Laursen)
    January 2024 - Maritime Reporter and Engineering News page: 4

    Marine Coat- process, or service does not coatings inspector. ings Representative for the imply its endorsement by the Great Lakes Region at Sherwin- Department of Defense or De- Laursen Williams Protective & Marine. He partment of the Navy. Wendy Laursen has 20 years of has served the coatings industry

  • MR Jan-24#2  Ships and a Fuel Cell Future
Departments
With fuel cells having)
    January 2024 - Maritime Reporter and Engineering News page: 2

    Reporter around the CMB.TECH workshop in Antwerp. Photo: Greg Trauthwein | Photo on the Cover: courtesy CMB.TECH 8 Big Ships and a Fuel Cell Future Departments With fuel cells having the potential to play a big role in decarbonizing the mari- 4 Authors & Contributors time sector, Siemens Energy and Advent

  • MT Nov-23#24  Markham’s archaeological department evaluated a 
dam structure)
    November 2023 - Marine Technology Reporter page: 24

    , even in turbid water conditions. Case Study: Stantec Using ROVs for 3D Archaeological Modeling ? Mission Objective Stantec Markham’s archaeological department evaluated a dam structure in Nassau Mills, Peterborough, Ontario. The 24 November/December 2023 MTR #8 (18-33).indd 24 11/28/2023 10:48:57 A

  • MR Dec-23#4  by the  van Hemmen 
Department of Defense or De- Lewis)
    December 2023 - Maritime Reporter and Engineering News page: 4

    , products, as diplomas in journalism, com- agency. process, or service does not munication and subediting. imply its endorsement by the van Hemmen Department of Defense or De- Lewis Rik van Hemmen is the President partment of the Navy. Philip Lewis is Director Research of Martin & Ottaway, a marine

  • MR Dec-23#2  Robots in the Engineroom
Departments
Fairbanks Morse Defense)
    December 2023 - Maritime Reporter and Engineering News page: 2

    NO.12 / VOL. 85 / DECEMBER 2023 18 Photo on the Cover: Royal Caribbean Group | Photo this page: FMD 18 Robots in the Engineroom Departments Fairbanks Morse Defense is developing robotics in-house to address the US 4 Authors & Contributors Navy’s need for future autonomous vessels. 6 Editorial By Greg

  • MN Nov-23#44  Philly Shipyard for the U.S. Department of  port HA/DR missions)
    November 2023 - Marine News page: 44

    plat- U.S.-built vessels delivered in recent memory. form. State maritime academy vessels being used to sup- Built by Philly Shipyard for the U.S. Department of port HA/DR missions was, of course, not a new concept. Transportation’s Maritime Administration (MARAD) un- For example, in 2012, the Kennedy

  • MN Nov-23#43  MARAD 
will work with the Department of 
Transportation and)
    November 2023 - Marine News page: 43

    . Through the VCM model, we’ve learned a lot about U.S. shipbuilding capabilities and gaps.” In closing, Linares said MARAD will work with the Department of Transportation and Congress to strengthen U.S. shipbuilding and re- lated manufacturing. Additionally, she said that MARAD is looking at ways