Michael G. Chalos is a senior partner atFowler, Rodriguez & Chalos, a multi-citymaritime firm.

Mr. Chalos has represented a number ofmaritime industry clients involved in highprofile civil and criminal environmentallitigation, including the successful defenseof the Master of the "Exxon Valdez".

As such, Mr. Chalos has developed aparticular expertise in defending andresolving oil pollution, Marpol and theAct for the Prevention of Pollution fromShips (APPS) violations and otherenvironmental claims. In this regard, hefrequently interacts with governmentalentities involved in the enforcement ofenvironmental regulations, such as theDepartment of Justice, the EnvironmentalProtection Agency, the United StatesCoast Guard, Federal and State Trustees,and the Oil Spill Liability Trust Fund, andvarious state departments of environment.

Mr. Chalos has authored a number ofarticles on the criminalization of maritimeaccidents in the United States and othermaritime nations, as well as, articlesrelating to investigations and prosecutionsby US authorities of Marpol violations,including the bypassing of oily water

separators and waste oil managementsystems.

The Criminalization of MARPOL violations and maritimeaccidents in the United States by Michael G Chalos

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On March 24, 1989, the EXXON VALDEZran aground on Bligh Reef and spilled over11 million gallons of crude oil into thepristine waters of Prince William Sound inAlaska. This was the largest oil spill inAmerican history. The EXXON VALDEZwas a watershed event which has foreverchanged the way the American people,government, environmentalists, media andindustry view and deal with oil pollutionresulting from maritime accidents.

Prior to the grounding of the EXXONVALDEZ, mariners, operators, managers,or other shore personnel never dreamedof criminal penalties resulting frommaritime accidents caused by errors innavigation or management of a vessel.The criminal prosecution of CaptainHazelwood, Exxon Shipping Company andExxon Corporation changed the rulesdramatically. In addition to the typical civilliability exposure that ordinarily flows fromany maritime accident, if such accidentresults in pollution there will likely be acriminal investigation. Additionally,depending on the facts, the mediaattention and the political climate, criminalcharges may be leveled. Such charges,under the right circumstances, could beagainst individuals, such as crewmembers,or corporate officers of the companyowning or operating the vessel, againstthe company itself, or, against the managersof the vessels.

In today's environmentally sensitive world,it is extremely important that everyoneinvolved in the operation of a vessel, aswell as their attorneys be aware of, andprepared for possible criminal investigationand prosecution flowing from maritimeaccidents and/or intentional violations ofMARPOL and other environmentalregulations. Indeed, the criminal prosecutionand conviction of crewmembers, ship-owners, operators and managers will notonly result in penalties possibly involvingjail and substantial fines, but may alsoresult in unlimited civil liability under theOil Pollution Act of 1990 for the owner/operator.

The Nature of Criminal LiabilityIn the United States1, there are twocategories of statutes imposing criminalliability for pollution emanating from vessels.First, if there is pollution incidental to amaritime accident, criminal liability forviolation of state and federalenvironmental statutes may be imposed.Second, regardless of whether there is

pollution, state and federal generalcriminal statutes imposing criminalliability for damage to property, personalinjury and loss of life will also come intoplay.

With respect to intentional violations ofenvironmental regulations such as MARPOLand the US enactment of MARPOL, theAct for the Prevention of Pollution fromShips (APPS, 33 USC Sec 1901 et. seq.),the United States government has becomeincreasingly aggressive in pursuingviolators of MARPOL and/or otherviolations of US environmental statutes,especially, as it relates to the by-passingof the vessel's Oily Water Separator (OWS) 2.

In this regard, since the tragic events ofSeptember 11th, pursuant to a directiveof the Office of Homeland Security, theU.S. Coast Guard has undertaken acomprehensive program of boardingforeign flag-state vessels calling U.S. ports.As a result of the new heightened securitymeasures, there has been a significantincrease in the scrutiny in which vessels,and the vessel's records and logs, arebeing inspected. Such scrutiny, rightly orwrongly, has led to a rash of vessel/crewdetentions, as well as criminal allegationsand charges against vessel Owners,Operators, Managers, Officers and Crew.

Additionally, the U.S. Coast Guard hasestablished an Oily Water SeparationSystems Task Force (OWSSTF) to examinea wide range of issues related to oilywater separation equipment, especially,as it concerns the operation of the OWSand its accompanying equipment, suchas, the vessel's incinerator, oil contentmeter, piping, valves, etc, and their useon vessels in U.S. waters. Coast Guardpersonnel and other law enforcementpersonnel are scrutinizing the use andfunctionality of oily water separationsystems more carefully than ever before,and U.S. authorities have made it clearthat they will seek jail sentences forMasters and Chief Engineers of shipscommitting pollution offenses, whetherthey occur in US waters or not. Manytimes, even if no pollution incident hasoccurred, the Coast Guard in conjunctionwith U.S. prosecutors, upon the mere"discovery" of a flexible hose or other"suspicious looking" equipment in theengine room, will commence a GrandJury investigation seeking to prosecute analleged illegal by-passing of the oily waterseparation system and/or the presentation

of an Oil Record Book containing "false"entries. It is logical that in a criminalinvestigation of a maritime accident and/or intentional violation of MARPOL or otherenvironmental statutes, the focus of criminalliability will first be on the crewmembers,then on the shipowning corporation, theoperator and/or manager and, ultimately,on corporate officers of such organizations.Depending on the circumstances, thecrewmembers could bear criminal liabilityfor their actions under both environmentalstatutes and general criminal statutes. Inaddition, the ship owning corporation,operator and/or manager may be heldvicariously liable for the acts of crew-members acting within the scope of theiremployment if such acts constitute aviolation of environmental statutes and,under certain circumstances, generalcriminal statutes. Additionally, corporateofficers can be held criminally liable underenvironmental statutes merely because oftheir position of responsibility in theshipowning, operating or managingcompany, regardless of their actualknowledge or participation in any culpableconduct. This principle is commonlyknown as the "Responsible CorporateOfficer Doctrine". Finally, corporateofficers can be held criminally liable forviolation of general criminal statutesdepending on their actual knowledge ofthe facts surrounding the accident andwhether they committed acts contributingto the accident.

Mens ReaHistorically, the courts have recognizedthat in order to be guilty of a crime aperson must have a criminal intent or mensrea. Thus, in order to be guilty of a crime,one needs to have acted with wrongfulpurpose, knowledge of a particular wrong,or in a reckless and/or willful manner3. Themental state necessary to trigger criminalliability will vary from statute to statute.Following the traditional rule, one wouldexpect in maritime accidents resulting inpollution (as opposed to intentional violationsof environmental regulations), that criminalliability would be predicated upon theindividual's mental status for: willful orknowing conduct, negligence, criminalnegligence, recklessness and willfulignorance.

The basic notion running through thetraditional criminal law was not tocriminalize conduct absent a showing ofevil intent or motive or that which wouldbe traditionally considered a civil wrong,

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The Criminalization of MARPOL violations and maritime accidents in the United States

addressed by civil remedies. Most judicialinterpretations of traditional generalcriminal statutes incorporated the conceptof mens rea, even if not specificallyprovided for in the statute.

Unfortunately, this basic concept of lawand fairness relating to minimal intentrequirements was abandoned in theapplication of statutes dealing with thepublic welfare, including environmentalstatutes.

Basic Elements of Criminal Liability1. Negligence.

In criminal law, there is a recognizeddistinction between criminalnegligence and civil negligence.American courts dealing with commonlaw criminal cases have held that thecivil negligence standard of failure touse reasonable care is not enough toimpose criminal liability. Rather,criminal negligence is required toimpose criminal liability. However,the criminal negligence provisions ofthe Clean Water Act have beenconstrued to require only proof ofsimple negligence rather than grossnegligence to sustain a criminalconviction. Obviously, the proofrequired to establish simplenegligence is much less than theproof required to sustain a charge ofgross negligence, and a convictionunder such statutes is almost aforegone conclusion.

2. Recklessness.Reckless conduct demands a higherlevel of culpable conduct thannegligence. In traditional criminalstatutes, the seriousness of a crimewill be greater when there is recklessconduct, as opposed to where there isonly criminally negligent conduct.While negligence is the failure toperceive a risk, recklessness is toperceive the risk but to consciouslydisregard it. Proving recklessness,even under the environmentalstatutes, is a more daunting task forprosecutors. As a result, whilerecklessness is a criminal charge thatprosecutors pursue, convictions underthis theory are more difficult to obtain.Criminal charges based onrecklessness oftentimes are used asbargaining chips to obtain guilty pleasof negligence which, in turn, lead tothe imposition of fines, theshipowner's (and/or theirunderwriters') cooperation in cleaningup and restoring the affected area, aswell as, unlimited liability under OPA.

3. Knowing Conduct.While the public welfare approach toenvironmental crimes permits strictliability statutes, Congress has attemptedto prevent the criminalization ofinnocent conduct by expressly includinga knowledge element as part of themens rea requirement in the majorityof criminal environmental statutes. Inorder for criminal liability to attach inthis class of offenses, the act must becommitted knowingly. An act is doneknowingly if it is done intentionally orvoluntarily. It is not necessary that theperson be aware that the act is illegal.Also, there is a line of cases which holdthat willful ignorance can be consideredthe equivalent of knowledge. Thisconcept comes into play when there isevidence that a defendant, usually asupervisor, deliberately chooses toignore what would have otherwisebeen obvious to him, or consciouslyavoids learning of illegal conduct.

4. Corporate Liability. It is a well established principle in UScriminal law that a corporation canincur vicarious criminal liability for theactions of employees acting within thescope of their employment. This is alsotrue in situations where the employeeacts in a manner contrary to the desiresand/or established procedures andpractices of the corporation. Additionally,a corporation may have direct criminalliability for the acts of directors, officersor employees. Direct liability may beimposed if company policies or directionscause or contribute to the accident and/or intentional violation of environmentalstatutes. For example, in a maritimeaccident, direct liability could resultfrom being aware of and condoningcrew incompetence, or a failure toproperly train the crews, or a failure toimplement and monitor complianceprograms. In intentional violations ofenvironmental statutes, direct liabilityfor the corporation results from thecrewmembers intentionally by-passingthe OWS or submitting a false record,such as the Oil Record Book, to theauthorities to cover up an illegal act, orlying to authorities with the knowledgeand consent of the corporation orsomeone acting on behalf of thecorporation. Furthermore, corporateactions (depending upon privity,knowledge and/or control) can result inindividual criminal liability for corporateofficers as well as for the corporation.

In addition, a corporate officer may beheld criminally liable for violation of

an environmental statute, even if theofficer did not participate in the illegalactivity. Under the "ResponsibleCorporate Officer Doctrine", whichwill be discussed more fully below,criminal liability can be imposed oncorporate officers if they were in aposition to know about or prevent thecriminal act, even if they did notactually commit the alleged crime.4

This doctrine is very harsh in that itcan result in criminal liability beingimposed on a corporate officer merelybecause of that officer's position ofresponsibility, as opposed to anyparticular conduct on the officer's part.

The Responsible Corporate OfficerDoctrine should be of particularsignificance and concern to vesseloperating and/or managementpersonnel. Under this doctrine, if anofficer or responsible individual atsuch companies actively engages inacts or omissions which result in a spillincident or an intentional violation ofenvironmental regulations, thatperson and company can be chargedwith crimes under the variousenvironmental statutes more fully setforth below. For instance, if anindividual at the management companyknowingly hires an incompetent masteror crewmember that is responsible forthe spill, that individual and hiscompany is at risk for criminalprosecution. If an individual at themanagement company fails to complywith the ISM Code, or fails toimplement systems to monitor thevessel personnel's compliance with theISM requirements and/or environmentalregulations, that individual and/or hiscompany is at risk. If an individual atthe vessel's operating company knows,or should have known, of a defect inthe vessel's equipment which causesor exacerbates a spill incident or anintentional violation of the regulations,that individual and/or his company isat risk of criminal prosecution.5

Generally, there are three requirementswhich must be satisfied to imposeliability under the doctrine. First, theindividual must be in a position ofresponsibility which allows the personto influence corporate policies oractivities. Second, the person, byreason of his corporation position,could have prevented or correctedactions which constituted the violation.Third, the individual's actions oromissions must have facilitated theviolation.

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The Responsible Corporate OfficerDoctrine has been applied in thecontext of violation of environmentallaws. There is certainly a potential forindividual criminal exposure for violationsby corporate officials for violations ofwhich they have knowledge and theauthority to prevent. Knowledge ofthe facts can be inferred in many cases,requiring only that the governmentestablish that the person had theauthority and capacity to prevent theviolation, and failed to do so.

The fact that an owning, operating, ormanaging company and its personnelare located outside the United Statesshould be of little comfort. UnitedStates prosecutors have displayedsurprising ingenuity, doggedness andresilience in pursuing those responsiblefor spill incidents in the United States,even minor ones. Under the rightcircumstances, United.States prosecutorscan (and will) confiscate vessels tocollect fines and penalties, charge andhold vessel personnel pending theinvestigation and trial, charge owning,operating and/or managementcompanies and responsible corporateofficers with violations of environmentalregulations, even if such individuals areoutside the United States. It should beborne in mind that the United Statesis a signatory to a number of extraditiontreaties with other countries and, ifnecessary, prosecutors can invokesuch treaties to bring a responsibleindividual to the United States to standtrial for violations of environmentalcriminal statutes.

U.S. Government's Modus Operandi inEnvironmental Regulations ViolationsInvestigations and ProsecutionsUS Coast Guard investigators andprosecutors in the early days of OWS by-pass investigations focused their effortson alleged by-passes of shipboard oily-water separation equipment through theuse of flexible hoses and flanges in orderto effect illegal overboard discharges.However, the government has nowbecome extremely sophisticated in itsapproach to investigating possible MARPOLviolations. Investigators and prosecutorsutilize a number of sophisticated tacticsand forensic testing to determine whetheran OWS by-pass has occurred. For instance,the Coast Guard has set up computerprograms to compare the vessels' bilgesounding logs and Oil Record Book entriesto the expected waste oil production ofthe vessel, its tank capacities, incinerator

use and capacity to determine if theentries are correct. In addition, they arevery clued in to the "tricking of the OilContent Meter" by the use of fresh waterduring the OWS operation. They are alsovery skilled in determining and locatingthe use of other by-pass methods andcross over connections. However, thegovernment's most recent "secret weapon"in the war on prosecuting Marpolviolators is the use of "whistleblowers",which are generally current or formercrewmembers. In this regard, thegovernment is authorized under the Actfor the Prevention of Pollution from Ships(APPS), 33 USC Sec 1908(a), to pay up toone-half of the assessed fine.6

While the U.S. government has nojurisdiction over unauthorized dischargesby foreign-flag vessels in internationalwaters in violation of MARPOL, it does,indeed, aggressively investigate andprosecute false Oil Record Book entries,obstruction of justice and witness tampering.

The Legal Rationale of MARPOLViolations InvestigationsThe MARPOL Protocol ("MARPOL") is aninternational treaty implemented in theU.S. by the Act to Prevent Pollution fromShips ("APPS"), 33 U.S.C. §§ 1901 et seq.APPS makes it a crime for any person toknowingly violate MARPOL, APPS, or thefederal regulations promulgated underAPPS. 33 U.S.C.§ 1908(a). These regulationsapply to all commercial vessels, includingvessels operating under the authority of acountry other than the United States,when these vessels are operating in UnitedStates waters or while at a port or terminalunder the jurisdiction of the United States.33 C.F.R. § 151.09.

MARPOL sets forth the internationalstandards for the maximum amount of oilpermitted to be discharged overboardfrom vessels. This standard is 15 parts permillion ("ppm"). MARPOL Annex I, Reg.9.As mentioned above, the United Stateshas no jurisdiction over a foreign flag vesselfor any violation of MARPOL that occursoutside the US 12 miles jurisdictionallimit. However, each transfer of oil in theengine room, including the overboarddischarge of bilge waste, is required to befully recorded without delay in the OilRecord Book. 33 C.F.R. § 151.25(h). Theentries are to be signed by the person orpersons in charge of the operation and eachcompleted page must be signed by theCaptain of the ship. 33 C.F.R. § 151.25(h).The United States Coast Guard regularlyinspects the Oil Record Book during port

state inspections to determine compliancewith United States law and the MARPOLProtocol and to assure that ships are notan environmental threat to United Statesports and waters.

The United States Coast Guard is chargedwith enforcing the laws of the UnitedStates and is empowered under 14 U.S.C.§ 89(a) to board vessels and conductinspections and investigations of potentialviolations. The Coast Guard is authorizedto examine the vessel's Oil Record Bookto determine, among other things, whetherthe vessel has operable pollution preventionequipment and appropriate procedures,and whether the vessel has dischargedany oil or oily mixtures in violation ofMARPOL, APPS, or any other applicablefederal regulation. 33 C.F.R. §§ 151.23(a)(3),151.23(c).If the Coast Guard finds evidencethat a vessel is not in substantial compliancewith MARPOL or APPS, the Coast Guardis empowered to deny a vessel's entry toa United States Port or detain a vessel 33C.F.R. §§ 151.07(b). The Coast Guard isalso required to report to the United StatesAttorney's office for the District in whichthe vessel is inspected all suspected violationsof any US laws.

Criminal Sanctions There is a broad array of criminal sanctionsavailable to the U.S. government agenciesin the investigation and prosecution ofcases involving a suspected criminaloffense. Recently, there have been anextraordinary number of investigationsregarding alleged MARPOL and otherenvironmental offenses. The UnitedStates treats such violations seriously, andhas demonstrated that it will spare noexpense in the investigation of such matters.

For your guidance, we provide below abroad outline of a number of laws andstatutes which U.S. Federal prosecutorsgenerally look to in charging a vesselOwner, Operator, Manager, Officers or,in many circumstances, individualcrewmembers.

A. The Act to Prevent Pollution fromShips (APPS)The Act to Prevent Pollution from Ships,33 U.S.C. §§ 1901-1911, adopts as U.S.law the provisions of the InternationalConvention for the Prevention ofPollution from Ships ("MARPOL").Various administrative regulations havebeen promulgated by the Coast Guardto enforce the provisions of MARPOLand the APPS. See 33 C.F.R. parts. 151and 155.

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Under 33 U.S.C. § 1908(a), it is a classD felony to knowingly violate theprovisions of MARPOL. A class Dfelony is punishable by up to 10 yearsimprisonment and a fine of up to$250,000 for an individual and$500,000 for a corporation, for eachviolation. 33 U.S.C. § 1809(a); 18 U.S. C.§ 3559(a)(4); 18 U.S.C. § 3571 (b)(4);18 U.S.C. § 3571(c)(3). A vessel violatinga provision of MARPOL may be arrestedand sold to satisfy any fine or penaltyunder the Act 33 U.S.C. § 1908(d).

The security being requested by CoastGuard officials and U.S. prosecutorsfor alleged MARPOL violations latelyhas been in the range of $1 million to$2 million corporate surety bond, orcash, rather than the customary Letterof Undertaking.7 Under 33 U.S.C. §1908(e), the United States may revokethe U.S. Customs clearance of a vesseland detain it where reasonable causeexists to believe that the ship, its owner,operator or person in charge may besubject to a fine or civil penalty for aMARPOL violation under the APPS.

B. The Clean Water ActThe Clean Water Act (CWA) 33 U.S.C.§ 1251, et seq. prohibits the dischargeof any pollutant by any person intonavigable waters of the United States,33 U.S.C. § 1311(a). A "knowing"violation of the Act is a felony. A"negligent" violation is a misdemeanor.The Act also prohibits the discharge ofoil or hazardous substances into thenavigable waters of the United States,or into the waters of the contiguouszone . . . in such quantities as may beharmful. 33 U.S.C. § 1321(b)(3). Failureto report a discharge is punishable byimprisonment of up to five years. 33U.S.C. § 1321 (b)(5). The Clean WaterAct also provides that the term "person"includes a "responsible corporateofficer.” 33 U.S.C. § 1319 (c)(6), (see,discussion of Responsible CorporateOfficer, below at paragraph "I").

C. The Rivers and Harbors ActUnder section 407 of the Rivers andHarbors Act of 1899, 33 U.S.C. § 401,et seq., any discharge of refuse of anykind from a vessel into navigable watersof the United States is prohibited. Aviolation of the Act is a misdemeanor.33 U.S.C. § 411. The courts have takena broad view of what constitutes"refuse" under the Act, and the Acthas been extended to a discharge ofoil or petroleum. Violation of the Act

is a strict liability offense which doesnot require proof of either intent ofnegligence. Accordingly, a person canbe convicted of a misdemeanorviolation under the Act based solelyupon proof that the person placed abanned substance into navigable watersof the United States.

D. The False Statements ActUnder 18 U.S.C. § 1001, providing afalse statement to the U.S. Governmentis illegal. To sustain a conviction for aviolation of the Act, the Governmentmust show:(1) that a statement or concealmentwas made; (2) the information was false;(3) the information was material; (4) the statement of concealment wasmade "knowingly and willfully;" and(5) the statement or concealment fallswithin the executive, legislative orjudicial branch jurisdiction.

Falsity through concealment is foundto exist where disclosure of the concealedinformation is required by a statute,government regulation, or form. Also,a false statement about, or concealmentof any prohibited discharge satisfiesboth the Act to Prevent Pollution fromShips or the Clean Water Act, sinceboth impose the duty to report. Like-wise, a false entry in a vessel's oilrecord book has been the grounds fornumerous felony indictments underthis statute.

E. Obstruction/Perjury/ProvidingFalse Information to GovernmentRepresentativesA number of criminal statutes of theUnited States provide for severepenalties for obstructing justice,providing false information to agovernment representative, andsimilarly, providing false testimonyunder oath to a Grand Jury (18 U.S.C. §1503-the "Omnibus ObstructionStatute", 18 U.S.C. § 1505-extendsobstruction to agency proceedingssuch as Coast Guard investigationsSimilarly, influencing or attempting toinfluence the testimony of another, ordestruction or alteration of evidence(18 U.S.C. § 1512 and 18 U.S.C. § 1515)are viewed under United States law asextremely serious, and will result inextremely serious criminal consequencesto any individual crewman or othersinvolved in such activities.

F. Witness TamperingU.S. authorities vigorously investigate

and prosecute individuals andcorporations suspected of tamperingwith witnesses in connection with anon-going investigation of pollution and/or illegal discharge incidents. Under 18USC § 1512, anyone who knowinglyuses intimidation or physical force,threatens, or corruptly persuadesanother person, or attempts to do so,or engages in misleading conducttoward another person with theintent to hinder, delay or prevent thecommunications to a law enforcementofficer or a judge of the United Statesof information relating to the commission,or the possible commission, of a federaloffense, shall be fined or imprisonedup to ten (10) years, or both. 8

G. ConspiracyUnder 18 U.S.C. § 371 if two or morepersons conspire either to commit anoffense against the United States, orthe defraud the United States, or anyagency thereof in any manner or forany purpose, and one or more of suchpersons do any act to effect the objectof the conspiracy each shall be finedor imprisoned up to five (5) years orboth. This is a very handy "add on"charge for prosecutors if they determinethat several crewmembers or crew-members and company officialsconspired to obstruct justice, destroyevidence or tamper with witnesses.This add on charge can cost up toanother $500,000 in fines.

H. Sarbanes-Oxley Act of 2002(Obstruction of Justice)Prosecutors in the United States haverecently commenced utilizing theSarbanes-Oxley Act of 2002, 18 U.S.C. § 1519 ("Destruction, alteration, orfalsification of records in Federalinvestigations and bankruptcy"). Thisis a powerful new law enforcementtool that exposes a wrongdoer to aprison term of up to 20 years. Thethreat of charging an engineeringofficer under this section, rather than18 U.S.C. § 1001 (the False RecordsAct) which has a lower potential jailtime provision, is generally for thepurpose of frightening such individualinto confessing that the alleged OWSby-passing was in fact done, and,preferably, with the knowledge andconsent of the vessel owner and/oroperator.

I. Responsible Corporate OfficerDoctrineUnder the "Responsible CorporateOfficer Doctrine," mentioned above,

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criminal liability for violations ofenvironmental laws can be imposedon corporate managers or officers whowere in a position to know about andprevent a violation, even if they didnot actually commit the alleged crime.A person can be held liable as aresponsible corporate officer basedupon the persons' ability or authorityto influence the corporate conductwhich constituted the violation. In thepast, the United States has used thisdoctrine to convict high level officersof corporations, including presidentsof corporations, for violations ofenvironmental laws committed bylower-level employees.

ConclusionFor better or worse, the criminalization ofmaritime accidents and intentionalMARPOL violations has become a fact oflife for shipowners, operators, managersand crewmembers, not only in the UnitedStates, but in a number of countriesaround the world. The trend for suchprosecutions appears to be on the rise.As the world's population becomes moreenvironmentally aware and sensitive,tolerance for maritime accidents resultingin pollution of the seas and environs orintentional pollution through MARPOLviolations becomes less and less. As aresult, and because of enormous populardemand and support, prosecution ofpollution incidents and polluters, eveninnocent ones, does not appear to offendanyone's sensibilities, other than those inthe maritime industry. Under thecircumstances, the industry needs tocarefully implement and monitorprocedures, practices and regulations tominimize the risk of maritime accidentsand pollution. At the same time, theindustry through its various tradeorganizations, must actively petition thegovernments and regulatory bodiesaround the world to de-criminalizemaritime accidents in the absence ofcriminal behavior.

Ladies and gentlemen, I thank you foryour time and attention.

Notes1While this paper deals mainly with thecriminal statutes of the United States andprosecutions thereunder, the philosophyof criminal investigation, detention andprosecution of those responsible for oilspills, especially Masters of vessels, hasbeen applied in recent years on a world-wide basis (i.e. KATINA P at Mozambique,HAVEN, Italy, ERIKA, France, NISSOS

AMORGOS, Venezuela, FREJA JUTLANDIC,United States, PRESTIGE, Spain, TASMANSPIRIT, Pakistan, etc).

2 It is not the author's intention to placecriminalization of maritime accidents andintentional violations of MARPOL andother environmental regulations on thesame plane. Clearly, one who intentionallypollutes should be punished in accordancewith the country's laws that it violates.However, this premise has, in a number ofinstances been applied harshly and unfairlyin the United States where the authoritiesfor a number of reasons commence fullblown investigations on mere suspicion orat times because of the over zealousnessof Coast Guard investigators, which resultin innocent crewmembers being arrestedas "material witnesses", taken off thevessel in shackles and thrown into jail untilthey are released by a judge. In addition,such practices not only delay the vesseland disrupt the commercial relationshipsbetween vessel owner and charterers and/or receivers, but cost innocent shipownerssubstantial sums to hire attorneys torepresent the crewmembers, to changeout the crew which is subpoenaed by thegovernment for Grand Jury appearances,to house such crewmembers once theyare released from material witness custody,to post substantial cash security, only tothen be told that the government hasdecided that they did not find any wrong-doing after all. Obviously, such news iswelcomed but, it comes at a steep price,both financial and emotional, which inmany instances is completely unnecessary.

3 Of course, in the situation involvingwillful or intentional violations of MARPOLor other environmental regulations the mensrea element is satisfied by the conduct ofthe individuals involved.

4 In a recent case involving the 2004Staten Island Ferry disaster which resultedin eleven deaths, the Director of PortOperations for the City of New York hasplead guilty to one count of manslaughterunder the "Ship's Act", 18 USC Sec.1115,for his failure to oversee and enforce Cityregulations and procedures requiring thetraining and shipboard operations whichcalled for two captains to be on the ferrybridge during docking and undocking.

5 In the NORTH CAPE spill incident off thecoast of Rhode Island, the owning company,its President and Operations Manager werecharged, and pled guilty, to criminal violationsof various environmental statutes on thegrounds that they knew, or should haveknown, that the anchoring system on the

oil carrying barge that ultimately ranaground was not working properly. In thatcase, while the President and OperationsManager avoided jail time, they wererequired to pay huge fines and to bearthe stigma of a criminal conviction. Thetug master was also charged and convicted,but he paid a substantially smaller fine. Asimilar corporate officer prosecutionoccurred as a result of the MORRIS J.BERMAN spill in Puerto Rico. In severalOWS prosecutions, foreign corporateofficers who participated in obstructingjustice by advising the crewmembers tolie to the authorities during the course ofthe investigation were charged with crimesby the US Department of Justice.

6 The OMI case mentioned in the captionof this speech is significant for the factthat the "whistleblowers" involved received$2.1 million of an assessed fine of $4.2million. A substantial sum for an oiler whonormally earns about $1000 a month.

7 In addition, the US Coast Guard hasbeen demanding a $500,000 LOU fromthe owner's P&I Club for any potential civilfines that may be assessed. In many cases,we have been successful in negotiatingthe demand for both criminal and civilsecurity to lower amounts, as it is notclear from the applicable regulations thatthe Coast Guard has the right to demandsecurity above $500,000 for any potentialcriminal charges, and there is someargument that their authority may not beas high as that amount. However, neitherthe Coast Guard nor the vessel ownersinvolved have chosen to litigate this issue;hence, the Coast Guard's willingness tonegotiate for lesser amounts in security.

8 It can be said generally that a"presentment of a false record (i.e. a falseOil Record Book)" case, while serious, is arelatively uncomplicated matter to dealwith and settle on reasonable terms.However, once the element ofobstruction, destruction of evidence orwitness tampering is introduced, the casetakes on a different dimension. In thisregard, if evidence of obstruction,destruction of evidence or witnesstampering is uncovered, prosecutors andjudges are very unsympathetic to thedefendant(s). In such cases, the fines andcharges sought generally increasesubstantially.

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Appendix to Michael Chalos’ speechon criminal prosecutions of maritimeaccidents and MARPOL violations

I. A primer on criminal investigationsand prosecutions in the United States

What happens from a practical pointof view after a maritime accidentresulting in a spill or as a result of analleged intentional violation ofenvironmental regulations? What canthe mariner, shipowner, operator ormanager expect to encounter in theUnited States when he or she is calledout in the middle of the night torespond to a ship collision orgrounding resulting in an oil spill, oran allegation that the crew has beenby-passing the oily water separator?It is important to remember that thelaw enforcement personnel deployedto investigate potential violations ofenvironmental regulations, intentionalor otherwise, come on the scene todetermine whether a crime has beencommitted and who might bear criminalresponsibility for its commission. Thelaw enforcement officer's responsibilityis to gather evidence; not to engagein a friendly fact-finding mission.

The cast of characters at a spill scenemay include the Coast Guard, EPA,FBI, state police, United States Attorney,local District Attorney and the AttorneyGeneral. Each of these are separateand distinct organizations, with theirown hierarchies, policies, and agenda.With the exception of the Coast Guardand the civil division of the EPA, theonly purpose of the law enforcementpersonnel is to investigate and prosecutecrimes. The criminal divisions of theEPA, FBI, and state police gather factsand evidence and bring it to theprosecutors for evaluation. The CoastGuard has a mixed purpose. It has theresponsibility in spill situations to over-see and insure that a proper cleanuptakes place, as well as to determinethe cause of the accident in order toensure safe operation of vessels andto take corrective administrative actionif necessary. In addition, in carryingout its traditional port state controlinspection duties, it is at the sametime vigilantly observing the vessel'sequipment to determine if there is anyevidence of intentional violations ofenvironmental regulations. In this regard,the Coast Guard has an obligation toturn over any evidence of criminalconduct it discovers in the course ofits casualty investigation or PSC

inspections to the U.S. Attorney. Crewmembers, shipowners, operators,managers and their attorneys must beaware of this criminal investigatory role,and should be as careful in dealing withthe Coast Guard casualty investigatorsand criminal investigations divisionpersonnel, as they would be in dealingwith the FBI or State Police. The U.S.Attorney, District Attorney, and AttorneyGeneral are prosecutors who may playan advisory or supervisory role in acriminal investigation. They will makethe ultimate decision of whether toprosecute.

What can be done to counteract thelaw enforcement investigation team?The most obvious task for the attorneyresponding to the scene would be topersuade the law enforcementpersonnel present that a crime has notbeen committed. Unfortunately, ifthere is significant oil in the water and/or loss of life or serious physical injury,or evidence of an intentional by-passingof the OWS equipment, this may be avery difficult task. Once it becomesapparent that the investigators willnot rule out that a crime has beencommitted, it then becomes the jobof the attorney to protect his clients'rights and certainly not to activelyassist investigators to gather incriminatingevidence.

In this respect, it is important toremember that no one on board a shipcan or should be forced to speak to alaw enforcement officer investigatingthe cause of the accident or thepossibility of an intentional violationof an environmental regulation if thereis a possibility that the person mayincriminate himself by doing so. As amatter of policy, shipowning companies,operators and/or managers shouldensure that crews are not coerced bycompany officials to give statementsto law enforcement officials on thescene.

Each crewmember (and, indeed, anycorporate personnel that is a target ofa criminal investigation) is entitled toconsult with counsel and to havecounsel present when being interviewedby law enforcement officials. Theprudent and ideal procedure whenthere is likely criminal liability wouldbe for an attorney engaged specificallyto represent the crewmember to geton board and interview the crew-member involved in the accident orany allegation of intentional criminal

activity as soon as possible after theincident occurs or the investigation iscommenced. That attorney will makean initial determination as to whetherthe crewmember bears any personalcriminal responsibility for the accidentor the alleged violation of a regulation.If the crewmember does not have anypersonal liability, he can be madeavailable to the prosecutors for aninterview with his attorney present.On the other hand, if the crewmemberhas real or even potential exposure toliability, such as if the crewmember wasinvolved in the navigation and controlof the vessel or in any way contributedto the accident, or, is a traditional"target" for regulation violationallegations (i.e. the Chief Engineer and/or Master), then the attorney shouldadvise the crewmember to invoke hisconstitutional rights under the FifthAmendment to the U.S. Constitution.Law enforcement officials will not beshocked if an attorney says he hasadvised his client not to speak. This isnormal practice in a criminal investigationand is the expected advice to be givenby a criminal defense attorney.

In addition to legal representation forthe crewmembers when there is apotential for criminal liability, separatecriminal legal representation should beprovided for the shipowning, operatingor managing corporations to evaluateand protect against corporate liability.Tactically, this could be advantageousfor the corporation because it also makesit clear that these corporations are notin charge of how the crewmembersare represented. It also avoids theappearance that the corporation isobstructing the investigation if somecrewmembers choose to invoke theirFifth Amendment rights.

In summary, the most important thingfor vessel owners, operators andmanagers to remember in the contextof maritime accidents, is to be preparedfor the possibility that they may becomethe subjects or targets of a criminalinvestigation. In this regard, thecompanies and their personnel mustbe prepared, in advance, to deal withgovernment investigations. Failing todo so will only make matters worseand increase the likelihood for civiland criminal liability. Advance trainingin ISM and ISPS compliance, as well as,in knowing and adhering to applicableenvironmental regulations andprocedures together with a well-defined compliance program and a

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separate response plan, and advancepreparation to deal with potentialgovernment investigations will invariablylessen the risk to the owner, operator,manager and crewmembers of criminalprosecution, fines and/or administrativeactions.

II. The relationship between criminalliability and civl liabilityIt is also important to consider therelationship between criminal liabilityand civil liability in a maritime accidentsituation. One can assume that inevery major maritime accident wherethere is an oil spill and environmentalimpact, there will also be a number ofcivil cases against the shipowner,operator, possibly the managementcompany and crew-members fordamages based on negligence, willfulor reckless conduct.

Nearly all of the issues which couldlater be the basis for civil actions willbe the same issues involved in mostcriminal prosecutions arising out ofthe maritime accident. Thus, since acriminal case will invariably be triedbefore the corresponding civil case, itis very important to preserve theviability of available civil defenses bydefending vigorously any criminalprosecution of the crew, corporationor corporate officers arising out of theaccident.

In practical terms, this means that longbefore the civil case even gets intoserious discovery, the issues relatingto negligence, recklessness and thespecific facts regarding what happenedwill have already been determined bya court and jury. For instance, criminalconviction based on recklessness ornegligence, because it is a findingbeyond a reasonable doubt, could beintroduced as a final determination ofthat issue in a subsequent civil trial. Inother words, a party's civil liability,including liability for punitive damages,can be for all intents and purposes,decided by a criminal conviction arisingout of the same incident dealing withthe same issues and parties.

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