One of the major grievances of shipowners is that , in the U.S., in particular, over zealous prosecutors are all too likely to treat an "accident" as a matter for criminal prosecution. At our recent conference Maritime Operationds, The Human Element, Mr. Whitehouse, outlined some of the circumstances that prompt federal prosecutors to "make a Federal case of" a pollution incident.

What follows is the text of his prepared remarks

The short answer to the question "Why you should maintain a safety culture" is that if you don't, and something goes seriously wrong, you will likely experience a criminal prosecution. Let me give you an anatomy of one such case, and argue that criminal prosecution is both necessary, and proper.

On January 19, 1996, the tug "Scandia" and the barge "North Cape", owned by the Eklof companies, grounded on Moonstone Beach in Rhode Island. The barge spilled approximately 828,000 gallons of home heating oil. We convicted the company, the president and the tug captain of misdemeanors. Why did we prosecute this oil spill as a criminal charge?

When is it the right thing to do to undertake a criminal prosecution? I submit it is the right thing when two conditions exist:

(1) the harm you wish to punish was of some real significance; and

(2) there is true moral culpability on the part of the people who caused the harm.*1*

I would add that criminal prosecution is even more justified if there's no superior alternative remedy for the harm.

All three conditions were met in this case.

I. Significance of the Harm.
First, was the spill a big enough deal to "make a federal case out of it"? It was the largest oil spill in New England history:

In environmental terms:
Response Costs have exceeded $11 million.

Eklof has paid more than $4 million in economic loss damages, mostly to fishermen and lobstermen, and many claims remain unpaid.

Environmental damage, measured through costs of restoration, is expected to run into the tens of millions of dollars. Study costs alone are over $2 million.

Total probably $30 million

Plus $9.5 million criminal fines and penalties

In human safety terms:
Eklof's tug burned to the hull at sea during a winter storm.
Men went into the sea, and a dangerous rescue had to be made by the Coast Guard.
Two crewmen valiantly returned to the barge to try to deploy its anchor.
A second dangerous rescue by the Coast Guard was necessary to retrieve them.

Thus, in addition to environmental and economic harm, there was very real danger to life and limb. The harm was clearly of major significance.
The first condition was met.

II. Moral Culpability.
There should be true moral culpability before a criminal prosecution is undertaken. There was here.
The facts that led to our criminal prosecution showed repeated, inexcusable negligence in maintaining known unsafe conditions and making obviously unsafe decisions. The Defendants themselves acknowledged this. Not only did they plead guilty, in their statement to the court they volunteered that they had been treated fairly in the prosecution.

Here are the facts.
We proved, and Eklof admitted, that the spill was caused by four factors:

1. 1) a severe winter storm, the forecast of which was known and disregarded;
2. 2) an engine room fire on a tug not equipped to handle it;
3. 3) a jury-rigged barge anchor system; and
4. 4) lousy maintenance.

Let me review each of these quickly.

The Storm. Before the tug and barge left port on the evening of January 18, 1996, the Coast Guard and Fleet Weather, a private weather service under contract with Eklof, predicted 25 to 50 knot winds and 10 to 20 foot seas for January 19, 1996 in the area off the southern coast of Rhode Island. Fleet faxed its forecast to the tug directly and to the owner's offices.
Over the next twelve to eighteen hours, the weather began deteriorating and the storm warnings continued unabated. By noon on January 19, 1996, all vessels in the Eklof fleet between New York Harbor and Rhode Island, with the exception only of the Scandia and North Cape, reported to Eklof "weatherbound" to wait out the storm. By midday on Friday, January 19, the Scandia and the North Cape were among the only vessels at sea off the coast of Rhode Island, the only exceptions being vessels of the fishing fleet still on their way back from far flung locations to safe harbor.
When the Coast Guard came to rescue the crew, the first vessel dispatched was the Point Turner, an 82' Coast Guard cutter from Newport. The cutter had to turn back because of the roughness of the seas that day and, in fact, it was damaged by the storm. A 41' Coast Guard patrol boat was then dispatched from Point Judith. It also had to turn back because of the rough seas. The Point Judith Coast Guard crew then manned a 44' "motor life boat," which was designed to handle more extreme conditions than the patrol boat. The coxswain later described the seas as being 15' to 20' and the worst conditions he had ever been in. That was the storm.

.
The Anchor. The barge North Cape had a 6,000 pound anchor. It had no anchor windlass. The windlass had been removed two weeks earlier for repair, but the barge was kept in service under a contract for a little over $7,500 a day.
Without the windlass, the anchor was held in place by a jury-rigged tangle of shackle, wire and rope. The steel anchor cable had been taken off with the windlass. The cable was replaced with 600' of polypropylene rope, whose bitter end was not secured to the barge. Unsurprisingly, the crew had been instructed to deploy the anchor only in case of an emergency.
I don't need to tell you that an anchor on a barge is a safety device, used for, among other things, going to a safe harbor or anchorage and anchoring to wait out bad weather. Indeed, a "faulty anchor windlass" has been considered the very paradigm of unseaworthiness in our federal Circuit. Austin v. Unarco Industries, 705 F.2d 1, 11 (1st Cir.), cert denied, 463 U.S. 1247 (1983).

Vessel Maintenance. The company kept no records of repairs.
A 1994 outside audit had reported to management that there was no preventive maintenance program at Eklof. In January of 1996, there still was none.
Monthly "discrepancy reports" --reports of problems on the vessels needing repair -- were filed in cabinets in the "operations" department. Another department -- the engineering department -- was responsible for making repairs. The discrepancy reports were never forwarded from one department to the other.
The "discrepancy reports" showed that the Scandia experienced especially poor maintenance. For instance, tug captains on the Scandia had been reporting for months that the tug engine was running at a positive crank case pressure. The problem was reported, but never fixed (many people familiar with the tug initially believed that the fire was caused by a crank case explosion).
Also reported were an electric short and electrical shocks to the crew. The short was never found and never fixed. The on board clothes dryer's automatic shutoff was broken, so it would run indefinitely, and the dryer was running the day of the fire. The Scandia was also being operated in violation of a Coast Guard stability letter requiring the engine room doors to be kept closed underway at sea.
I'll summarize the condition of the vessel in recorded words of the captain and chief engineer: (expletives deleted).
Captain: "The equipment sucked."

"this whole situation with what happened here, it shouldn't have happened. It could have been prevented and it wasn't."

"[W]e've been operating this boat and it shouldn't have been operating, but we did."

The Chief Engineer:

"we're committed because we don't have a proper anchor windlass. Had we had the right stuff, we wouldn't of been in this situation. We wouldn't of lost no barge on the beach -- period."

The Fire. At about 1:30 P.M., four miles south of Moonstone Beach an engine room fire broke out on the Scandia. About that time a large wooden cabinet located in the upper engine room fell over. The crew stored oily gloves and rags there, which fed the fire. The fallen cabinet blocked open the door to the upper engine room. This blocked the crew's access to two carbon dioxide canisters located inside the upper engine room, and made the crew fear that the carbon dioxide would dissipate and not extinguish the fire.
The crew used two or three hand-held fire extinguishers to fight the fire. They did not know where the remote manual shutoffs for the fuel and ventilation fans were, and they could not get to the shutoffs located in the enflamed engine room. Even if the crew knew the remote shutoffs' location -- outside aft of the upper engine room -- they likely could not have reached them in the flames, smoke, and huge seas. A tankerman attempted unsuccessfully to get to that area to close the door to the engine room.
Contrary to company policy and in specific disregard of the recommendations of a tug captain who had experienced an engine room fire on the Scandia only ten months earlier, the Scandia had no firefighting suits and no self-contained breathing apparatus (SCBA's)*2*.Water hoses and a pump were located in the lower engine room, but they could not be reached without firefighting suits and self-contained breathing apparatus. If the fire were electrical, water hoses would not have been the best remedy anyway, but it was all somewhat moot since the threading on the fire hose couplings did not match the threading on the fire pump.
A government expert was prepared to testify that a fixed total flooding fire suppression system could have been installed in the Scandia engine room at a cost of approximately $30,000. Had such a system been in place, the fire would have been extinguished within a few minutes. He was also prepared to testify that it is the U.S. Navy's policy to move toward remote fire suppression systems, and to avoid requiring sailors to fight fires by hand.

The Rescue. After it became apparent that the crew could not extinguish the fire, the captain ordered everyone into survival suits and on to the bow. He told the Coast Guard that the vessel was on fire and the crew was abandoning ship. With smoke billowing out of the engine room and up to 20 foot seas tossing the tug about, the six men waited together on the bow for rescue.
The Coast Guard reached the Scandia at approximately 2:55 P.M. After an explosion on the tug, the crew jumped into the freezing seas. A Coast Guard seaman jumped into the water to assist the crew to the rescue vessel. Everyone made it safely, but the seaman was turning blue and hypothermic, so the coxswain returned to port for the seaman to get medical treatment.
Back on shore, the First Mate and Chief Engineer of the Scandia volunteered to go back out to the barge to attempt to lower its anchor, and the Coast Guard took them back out. When they reached the barge, waves were crashing across its deck. You can imagine what the transfer of the two men to the barge was like. Once on the barge, one man worked to cut away the anchor rigging while the other watched for waves and shouted to his mate to "hold on" when waves broke over the deck. After about thirty minutes of this, they realized it was hopeless. They could neither unshackle the anchor nor tie off the bitter end of the rope. As they approached the shore, the waves steepened, and the Coast Guard vessel, standing by for their return, was getting into shallow water.
The Coast Guard was able to get the Chief Engineer back to the Coast Guard vessel, but he slammed it hard. Several attempts were made to pick up the First Mate, but it couldn't be done. The coxswain finally had to pull back, leaving the Scandia's First Mate stranded on the barge. It was, the coxswain would report later, "the worst call I ever had to make."
To avoid being washed overboard, the First Mate climbed to the highest point he could reach on the barge, the anchor sled A-frame. There he clung for three hours. A Coast Guard helicopter crew braved the fierce and gusting winds, lowered a man with a harness to the barge, and just before 9:00 p.m. was able to pluck the First Mate free.
The spill happened shortly thereafter.
I'll admit that Rhode Islanders have strong feelings about the sea. We are "The Ocean State." Our symbol is an anchor. Whether as clammers or lobstermen, Cup defenders or weekend sailors, oceanographers or ocean racers, pirates, China traders, even smugglers and slavers, we are and have been for centuries bonded to the sea. Both the damage done here, and the seamanship shown here, offended things we hold dear.

III. Wasn't There a Better Alternative? Was Criminal Prosecution "Piling On"?

The federal judge who sentenced the defendants said this one was a "wake-up call to the industry." A marine trade publication [not Marine Log] recently ran an article that I will take the liberty of using as a straw man to discuss this point. The article questioned: "did the industry really need a wake-up call? And even if it did, is the criminalization of an accident a justified way to do it?"

Setting aside this article's mistaken premise that this was a mere accident, the answer to both these questions, I think, is a firm yes. At least a sector of the tug and barge industry needed a wake- up call, and the criminal law was the proper, and perhaps only, way to respond. Where else would the wake-up call come from?
One of the most chilling moments in our investigation came when I asked a senior Coast Guard official, "knowing all this, if the vessels were steaming toward Rhode Island right now and all the same circumstances of weather, equipment, condition, and so forth existed, what could you do to stop it?" He answered that he could do, and would do, nothing. Even knowing of conditions that would amount to criminal negligence, the Coast Guard could do nothing. Ladies and gentlemen, it is my personal, but firmly held, belief

(a) that the Coast Guard regulation of tugs and tank vessels is plainly inadequate, and

(b) that the industry has exerted pressure in many quarters to make it -- and keep it -- just that way.

Where there is misconduct and negligence in outfitting and maintaining tugs and barges that carry hazardous cargoes to sea, the criminal court then becomes the fallback forum to see these wrongs redressed.
The same article expressed the hope that Congress would "rein in" OPA's criminal provisions on the theory that "statutes which make scapegoats don't protect the environment." That sentiment's wrong in three separate ways. First of all, it's wrong in suggesting that "reining in" OPA will stop criminal prosecutions in these instances. Take away OPA, and federal prosecutors still have plenty of tools at their disposal. OPA is an amendment to the Clean Water Act, and we were prepared to prosecute under criminal provisions of the Clean Water Act (33 USC 1321), the Migratory Birds Treaty Act (16 USC 703, 707), the Rivers and Harbors Act ("Refuse Act")(33 USC 407, 411), and the Seaworthiness Act (46 USC 10908). That's before even considering laws that state prosecutors can enforce.
The second thing wrong is the theory that statutes which make scapegoats don't protect the environment. They DO protect the environment: through a principle as old as the law, called "deterrence." General deterrence is when the criminal's punishment makes others not do what the criminal did, and specific deterrence is when the criminal's punishment makes the criminal stop doing what he did.3 Criminal prosecution also protects the environment through fines which can be dedicated to fund land and habitat preservation. In my view, criminal punishment of environmental harms not only protects the environment, it protects the environment in particularly important ways where other regulatory methods aren't there to prevent the harm.
The third error is semantic. "Scapegoat" connotes innocence. Someone who admits their own criminal negligence is not my idea of a scapegoat.
In this same article, a lawyer said, "The worry is, are people spending more time trying to keep themselves out of trouble criminally than they are protecting the environment." I see that as a false dichotomy. If you don't harm the environment at all, you don't get in trouble at all. And if you don't harm the environment by your own criminal negligence, you don't get in trouble criminally. Avoiding criminal trouble and protecting the environment aren't competing alternatives, they go right down the same path, hand in hand.
The article identifies one plausible concern in the immediate aftermath of a spill. An industry lawyer is quoted as worrying that criminal prosecution "changes the focus from getting oil out of the water to a scenario where everyone's looking over his shoulder to figure out who may be going to prison." (As an aside, let me tell you that no one went to prison in our case; indeed, going to prison if you didn't deliberately cause the spill -- and don't obstruct the investigation -- is highly unlikely under federal sentencing guidelines.) It is an important concern that the criminal process not interfere with the clean-up. Our experience is that it doesn't.
If you have seen a major oil spill clean-up, you know that it is a mob scene -- an alphabet soup of state agencies, federal agencies, local agencies, environmental groups, contract clean-up crews, dignitaries and media. The people actually engaged in the clean-up are professionals. They're not looking over their shoulders at anything. They've got a jot to do. Managers of the company have a powerful incentive to see the clean-up done swiftly and well, both to demonstrate good faith and to minimize the damage they have to pay for. Insurers have a big role in clean- up decisions, and they have the same incentives. Investigators from the Coast Guard, EPA and NTSB are there asking questions anyway, so an FBI agent or two doesn't do any harm, particularly since professional law enforcement agents will work in concert with each other. A properly run criminal investigation just won't affect oil spill clean-up, in my view.
My straw man article concludes with the observation that our focus should be on prevention, not punishment. I will close these remarks by agreeing, but with the caveat that sometimes punishment IS prevention, particularly if the industry gets the message from the punishment that maintaining safe conditions and proper equipment is required; it IS prevention if insurers get the message about the relative cost of proper maintenance and ordinary mechanical repairs compared to oil spills; and punishment IS prevention if everyone knows that a thorough criminal investigation will get to the bottom of what happened. Is there more that could -- and should -- be done on prevention? Of course, but restricting criminal prosecutions under OPA won't do that.
What will do that -- what will increase prevention -- is a thorough regulatory scheme, whether an official one implemented by the Coast Guard, or a market-side one driven by the insurance groups. I hope that one or both of those will soon occur. There is no excuse for permitting millions of gallons of hazardous cargo to be run through sensitive waterways on second-rate, unsafe, defective or ill-equipped vessels. If it takes the criminal law to emphasize that point, so be it.

The Scandia had experienced an engine room fire in March 1995 while the tug was docked in New Haven, Connecticut. The fire caused severe damage but was extinguished. According to a report filed by the captain then on duty, the tug crew could not put out the fire because they had no firefighting suits and no SCBA's. The crew was able to borrow firefighting suits and SCBA's from the New Haven fire department, and they then went into the engine room and put out the fire.

2) In a January 1996 review of the equipment provided to its fleet, Eklof reported in an internal memorandum that the Scandia did not have any SCBA's on board, which was contrary to company policy. Apparently, the Scandia had previously been supplied with at least one SCBA, which was then lost. The company decided not to replace it.

3) The age-old principle of deterrence is codified by Congress as one of the purposes of criminal sentencing under 18 U.S.C. §3553, and the recent Coast Guard Commandant Instruction specifies as a factor in favor of criminal prosecution the deterrence of "[i]llegal conduct that appears to represent a trend or common attitude within a regulated community. Commandant Instruction M16201.1, Chapter 1, Section E.3.a.

MARINE LOG HOME PAGE