This article originally appeared in the October 2001 edition of the AC Currents.
Recent high profile criminal prosecutions such as the EXXON VALDEZ, Royal Caribbean, Holland America, the COMMAND, and the NEPTUNE DORADO have established the critical need, first, for contingency planning, and, second, the ability to have specialist lawyers immediately available to respond at the first hint of a criminal investigation.
The master of the EXXON VALDEZ was convicted of negligently operating a vessel, after obtaining acquittal on more serious charges; RCCL was indicted for falsifying records, knowingly discharging oil, conspiracy, and witness tampering, and eventually pleaded guilty to a number of these charges. In the Holland America matter, the company and the director of technical operations pleaded guilty to charges of negligently discharging oily bilge water. The COMMAND incident off the coast of California resulted in guilty pleas to charges of knowingly discharging oil. The NEPTUNE DORADO produced a guilty plea to charges of knowingly failing to report hazardous conditions as required under the Ports and Waterways Safety Act.
The shipping industry is well aware of the increasing emphasis on criminal prosecution of mariners and their employers in the United States. OPA-90 stiffened many criminal sanctions and prosecutors are not hesitating to use these tools.
Criminal convictions, including plea agreements can bring with them not only substantial fines, but possible prison terms, the banning of personnel from entering the United States or serving on vessels calling at United States ports, and stringent environmental protection programs which the United States government will supervise.
In the crucial first hours after a serious casualty or incident, special criminal investigators from the Coast Guard, and EPA, the FBI, and comparable state agencies may board the vessel and begin an investigation. Mariners must understand both their rights and their obligations, and must understand what actions will bring additional charges of obstruction of justice. Indeed Royal Caribbean, Holland America, the COMMAND, and the NEPTUNE DORADO matters all involved prosecution for obstruction of justice as well as for substantive violations of law.
Education through contingency planning will prepare company personnel for the appropriate and proper response in the event they become involved in criminal matters. Appropriate contingency planning and training of personnel should include:
- Explanation of the Coast Guard¡¦s investigative role;
- Outline of Coast Guard policy and procedure regarding criminal investigation;
- Identification of significant maritime environmental crimes, their elements and possible sanctions;
- Identification and explanation of the rights and obligations which both personnel and the company have when confronted with a criminal investigation;
- Implications of reporting after an incident to the Coast Guard, the states, the flag state, and owners;
- Procedures for avoidance of falsification of evidence and obstruction of justice charges;
- ƒ¹nclusion of competent criminal defense counsel in the shipowner¡¦s response team; For risk managers and senior executives, an explanation of the negative impact criminal proceedings and convictions may have on civil liabilities and insurance programs;
- Establishing and publishing guidelines covering the circumstances under which the company will provide a defense for its personnel who are facing criminal charges.
Only planning and training can assure a proper and competent defense when the criminal investigators come calling.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
