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Michael G. Chalos[∗]
Today, more so than at any other time in the history of shipping, one who assumes command of a vessel is not only charged with the responsibility of managing the affairs of the ship, but is just as likely to be charged criminally, and to spend time in prison, if he should be unfortunate enough to be involved in a maritime accident that results in environmental damage (or death). Any such accident no longer needs to rise to the level of a disaster. Minor pollution incidents and/or the threat of a pollution incident is often enough to catch the attention of the dreaded threesome: the authorities, the media, and, the politicians.
While the notion of charging Masters and other ship’s officers criminally after a maritime accident may have originated in the United States, most prominently with the prosecution of Captain Joseph Hazelwood, the Master of the Exxon Valdez, the phenomenon and practice has now spread worldwide; witness four of the most recent criminal prosecution incidents – the Virgo in Canada, the Prestige in Spain, the Bow Eagle in Norway, and the Dutch Aquamarine in England.[1]
Over the years, there have been pictures across television screens of befuddled Masters being led off the ship in handcuffs by stern-looking policemen, most times in countries far from their own. There have been screaming newspaper headlines and the obligatory oiled bird pictures on CNN, demonising these forlorn individuals as the architects of ‘the worst ecological disasters [until the next one] since Hiroshima.’[2] The arrested Master’s employers, his union heads, the class societies and flag states have all suddenly been struck deaf and dumb by God in apparent retribution. A welcome blessing for them, to be sure.
Given the shabby treatment these poor Masters receive at the hands of the authorities, the media, their employers in many instances, and the erstwhile politicians and bureaucrats, one wonders why would anyone want the job in the first place. What’s wrong with being a permanent second or third mate – it’s a lot safer – maybe. (The mates on the Bow Eagle and the Dutch Aquamarine would most likely disagree). When, how and where did this rush to criminalize maritime accidents and put Masters in prison start?
In my memory, the first case where a Master faced potential criminal charges involved a tanker running down a fishing vessel in San Francisco harbour in the 1980s. After a great deal of huffing and puffing by the authorities, the case was dropped because they filed the indictment in the wrong court and, more importantly, later determined that they could not prove criminal intent on the part of the Master.[3] Those were the days when prosecutors understood the meaning of mens rea. Today, most prosecutors, in the context of environmental prosecutions, act as though the term means some sort of horrible male medical condition, rather than a burden of proof.[4]
Then came the Exxon Valdez. On 24 March 1989, the Exxon Valdez ran aground on Bligh Reef and spilled over 11 million gallons of crude oil into the pristine waters of Prince William Sound in Alaska. This was the largest oil spill in American history. The Exxon Valdez was a watershed event which has forever changed worldwide the way the public, governments, law enforcement authorities, environmentalists, media and industry view and deal with oil pollution resulting from maritime accidents.
The Exxon Valdez and the subsequent arrest and trial of Captain Hazelwood was the first modern-day maritime accident resulting in a runaway media circus. There were nightly images on television of oiled birds and otters, of oil washing upon the shoreline of Prince William Sound, and of fishermen decrying the loss of their livelihood. There were also those unforgettable images of Captain Hazelwood being led away in handcuffs after the local judge, posturing for the cameras and obviously influenced by the droves of television cameras and newspaper reporters in his normally non-descript courtroom, decided that $1 million dollars was the right amount of bail for a defendant who had committed no crime in his jurisdiction, but was merely surrendering to him as the nearest authority under an Alaska warrant.[5]
Clearly, the media greatly influences, rightly or wrongly, the public’s perceptions of an event. However, they also influence the law enforcement authorities who investigate and make charging decisions after a maritime accident, as well as the politicians, who invariably wax eloquently on topics they just learned for the first time that morning in respect to the evils of old ships, ‘irresponsible owners’ and shipments of oil through their jurisdictions, while gratefully and quietly receiving campaign contributions from the oil companies and, in some cases, the maritime industry itself.
Prosecutors, who would ordinarily make charging decisions on the basis of evidence presented to them and the applicable criminal statutes, are frequently put in the position of overcharging a case or refusing to make a reasonable settlement because of the attenuated media hype that invariably follows a maritime accident resulting in a substantial spilling of oil.[6] After all, the prosecution of a Master in a high visibility case has been known to enhance careers of the prosecutors and, sometimes, the bureaucrats involved.[7]
In all high visibility maritime cases, there is the invariable concern for legal liability exposure, not only for the Master, but for his employer, the vessel owner, his Protection and Indemnity (P&I) Club, the charterer, the shipper and, recently, the classification society.[8] As a result, the predictable reaction for all of these entities, with the exception of the unfortunate Master who always takes the first thumping, is to go into a ‘bunker mentality’ mode and to keep their heads down for fear that someone will notice them and possibly sue them. What a waste of time and energy. By now, they should all know that they will get sued sooner or later.
Captain Hazelwood was fired by his employer, Exxon Shipping, after the incident. Can there be a worse situation for an Owner than to make the Master your enemy after a major casualty? Why would Exxon, a sophisticated oil major, take such an incredibly wrongheaded decision? In my opinion, because of the tremendous media attention, and, in their thinking, to protect their public image, they fired Captain Hazelwood in a ‘knee jerk’ fashion to take the pressure off the company and to basically point the finger at one individual.[9]
The oil transportation industry, the Coast Guard, and the US Government, which itself bore some responsibility for the grounding, decided to jump on the band wagon and they attempted to pin the grounding on the actions or inactions of one man. After all, if they could successfully blame ‘one drunk Captain’ they would not have to answer the tough questions of what role did the overworked and tired crews being pressured by their companies to get in and out of port as quickly as possible, regardless of the heavy ice concentrations blocking the Vessel Traffic Control lanes play in the incident; or why the Valdez terminal, Aleyska, which had filed plans with the State of Alaska and swore to the people of Alaska that it had the capability to contain and pick up 200,000 bbls of crude oil in 24 hours, did not have a single skimmer on hand; or why the Coast Guard, which had promised Congress and the American public that they would safeguard the movement of oil in Prince William Sound with the most modern equipment and the best trained personnel, did not know where the Exxon Valdez was until Captain Hazelwood called them to report the grounding. In fact, the most modern equipment had been traded in for unreliable, but cheaper, radars without anyone’s knowledge except the Coast Guard. The best trained personnel were busy, discussing the previous night’s extra curricular activities on a floor below the radar equipment. With only one vessel to watch, the Exxon Valdez, the Coast Guard did not know it was even on their radar screen, let alone warn of its impending grounding.
The Coast Guard and government fully appreciated their potential exposure, both legally and politically. Hence, the push to convict the allegedly drunk Master, who made for a very convenient scapegoat. What they did not count on was twelve ordinary people, from all walks of life, putting their hand up and stopping a runaway, media-propelled, prosecutorial train. The power and majesty of a jury acting against the wishes and agendas of the government, the prosecutors and the press is a sight to behold.
In truth, the grounding of the Exxon Valdez was a systemic failure. It was an accident waiting to happen. However, neither the industry, nor the bureaucrats, were put on trial. Only the poor unfortunate Master.
Fast forward now some thirteen years later to Spain. Everyone said after the Exxon Valdez disaster that the probability of another similar accident happening in 10 years time was substantial. In fact, they were off by a mere three years. The Prestige was another accident waiting to happen. An old ship, a marketplace looking for cheap rates, a lax inspection system, injudicious or incompetent bureaucrats, overworked and under-trained crews, combined with the unforgiving power of nature, all came together to create another environmental disaster.
Were any of the lessons learned from the Exxon Valdez saga applied? Indeed, they were. The first thing the authorities did was to arrest the Master, Captain Apostolos Mangouras. It made for great press and media coverage, but, most importantly, it focused the attention away from the real culprits: the industry, the owners, the charterers, the government of Spain for making such imprudent decisions in respect to a stricken but rescuable vessel, the lax inspections and classification systems. It was very convenient for all of them to have the Captain hauled off to prison in handcuffs and blamed for their failures. After all, he was the Master who tried to save his vessel and crew only to be put in more danger by the decisions of bureaucrats who were later promoted.
The Spanish government, acting badly by all accounts, decided that the best way to force potential wrongdoers into a quick settlement was to use Captain Mangouras as a pawn in the bigger chess game of liability and overcoming existing international limitation of liability conventions to which Spain is a signatory. They set the Master’s bail at an unconscionable 3 million Euros, a figure they knew Captain Mangouras would not be able to afford. After all, bail, in most civilized parts of the world, is meant to ensure the appearance of the defendant for pre-trial hearings and the trial itself, not to punish him or hold him hostage to coerce and extort his employers into a settlement.
As in the case of the Exxon Valdez, the industry, the vessel owner/operator, the Spanish government, the flag state and classification societies, all of which shared some responsibility for the breakup of the vessel and the subsequent spill, all kept their heads down. Sure, there were the usual hand-wringing pronouncements by all concerned condemning Spain for setting such a high bail on Captain Mangouras. But, not one of the potentially responsible parties stepped forward to help the Master with the posting of bail, or to commence a dialogue with the Spanish government with a view towards dealing with the spill consequences and the orderly resolution of the potential liability.
The owner was nowhere to be found. The manager/operator issued cryptic denials from some bunker in Piraeus. The industry, as always, was happy to have Captain Mangouras take the blame for them. The Spanish government basked in the glory of having so cleverly forced the vessel out of their waters, only to have it break up and spill its cargo onto their shores. But, never mind, they had the dastardly Master under lock and key.
The flag state, that well-known and historically important shipping nation of the Bahamas, whose registry is actually headquartered in New York, threatened hearings and prosecutions of all concerned and all kinds of other mean and nasty things, only to quietly disappear from the scene when it became apparent that their inspection system of vessels was the usual ‘wink and a nod’ operation of a flag of convenience registry.
The American Bureau of Shipping (ABS), the classification society which inspected the vessel only months before its breakup, did its usual hemming and hawing and vociferously expressed its righteous indignation at anyone who would even suggest that they had a role in the incident. They reminded everyone time and again that they are merely inspectors of vessels, not the guarantors of seaworthiness. Huh?
Then there are the International Transport Workers’ Federation (ITF) and other Greek seamen’s unions who happily come on board vessels and exhort their commitments to the poor downtrodden seamen, and who receive millions of dollars from shipping companies wishing to avoid the expenses of having their vessels delayed by an ITF arrest, sitting on the sidelines lamenting about how unfair it was for the Spanish government to imprison Captain Mangouras and hold him on such high bail. Yet, not once did they visit him or come to his or his family’s aid during his incarceration.
In fact, one of the main reasons law enforcement authorities and their governments act with such impunity when it comes to the arrest of Masters after a high visibility incident is that the Masters have no constituency. There is no one to speak up for or to protect them – not their employers, not their governments, not their unions. They are more or less at the mercy of the prosecutors. You can rest assured the prosecutors are keenly aware of this fact and take full advantage of the situation. Prosecutors know that the longer they hold an individual in custody, especially in a foreign country, the more likely the chances are that individual will become desperate and ‘confess’ to the authorities what they want to hear, whether it is true or not, just to obtain his freedom or a lighter sentence. This is a despicable, but effective, prosecutorial tactic.
The Owner and its P&I Club eventually posted Captain Mangouras’ bail in his matter, but only after it became apparent that he was becoming desperate and that he was seriously considering speaking with the authorities about those issues that the Spanish government was most concerned with in establishing and breaking the limitation of liability. It is a sad commentary on the entire legal system.
The forgotten individuals in all these matters is the Master and his family. Very little attention is paid by the media or others involved to the human element and enormous personal pain and sacrifice that a Master endures while under arrest and while awaiting a trial where his freedom is at stake. Captain Hazelwood only spent one night in prison, but he was vilified, and continues to be vilified some thirteen years later, by a media, and public, which after three acquittals of the drunk-driving allegations, continue to portray him as the drunk Captain who ran the Exxon Valdez aground. No matter what the true evidence was, Captain Hazelwood will forever be stigmatised, as will be his family. He will never again be able to sail on his licence or to practice his chosen profession because he happened to be the Master of a vessel involved in a purely maritime accident.
Likewise, Captain Mangouras, who is sixty-eight years old, will never be able to sail again, even if he is not tried, convicted and/or imprisoned. Of course, after what he went through he probably would not want to sail again, in any event. In the meantime, Captain Mangouras endured three lonely, harrowing months in a Spanish prison waiting for someone to post his bail. During that time, he was away from his home and family. His family, no doubt, was extremely distraught and anxious about his health and mental state. It is always the families who have to endure the biggest burden, both emotional and often-times financial, of their bread-winner being held in a prison in a far away country because of an on-the job-accident, for which that person is blamed solely because of their command position. Again, one has to ask who would want the job of vessel Master in this day and age. In hindsight, now knowing the horrific treatment that Captains Hazelwood and Mangouras experienced, and continue to endure, perhaps, a better alternative for future Masters finding themselves in similar situations might be to go down with the ship, like they did in the glory days of shipping.
For better or worse, the criminalisation of maritime accidents has become a fact of life for Masters, officers, ship-owners, operators and managers, not only in the United States, but also in a number of countries around the world. The trends for such prosecutions are on the rise (see Appendix A).[10] As the world’s population becomes more environmentally aware and sensitive, tolerance for maritime accidents resulting in pollution of the seas and environs becomes less and less. As a result, and because of enormous popular demand and support, prosecution of pollution incidents and polluters, even innocent ones, does not appear to offend anyone’s sensibilities, other than, perhaps, those in the maritime industry. Under the circumstances, the industry needs to carefully implement and monitor procedures, practices and regulations to minimize the risk of maritime accidents and pollution. At the same time, the industry through its various trade organizations, and with the assistance of their respective legislators, must actively petition the governments and regulatory bodies around the world to decriminalize maritime accidents in the absence of criminal behaviour.[11]
See, Paper above.
In June of 1990, the B/T Nautilus grounded while approaching a berth in the Arthur Kill, New Jersey. Although he was on the bow at the time the incident occurred, New Jersey State Police subsequently arrested the vessel’s British chief officer after he failed a breathalyser test. The charges were ultimately dropped, but not before his picture appeared all over the British papers and television.
The M/V Katina P sank off the Mozambican coast en route to Bangladesh for scrapping. A large oil spill resulted. The Mozambique government, on the advice of New York counsel, detained the Captain of the M/V Katina P for the specific purpose of coercing a ‘confession’ from him regarding the unseaworthiness of the vessel with Owner’s knowledge. He ultimately escaped on another Greek vessel with the help of the Greek consulate in Harare.
The Ukrainian Captain of the M/V MC Ruby, Vladimir Fyodorovich, was arrested in Le Havre on 6 November 1992. He was charged with the murder of seven Ghanaian stowaways on board the vessel while on a passage from Takodori to Le Havre with a cargo of cocoa beans.
The vessel spilled 80,000 tons of crude oil off Spain, and the vessel’s Master was reportedly arrested and detained for a period of time. Apparently, the Captain jumped bail and did not return to stand trial.
Princess Cruises paid a $500,000 criminal fine for dumping garbage off the Florida Keys.
After a faulty towing cable broke while being towed by the tug Emily S, the T/B Morris J. Berman grounded off Puerto Rico. 750,000 gallons of oil spilled onto Escambron beach. Prosecutors charged that the companies had sent out an unseaworthy vessel, had negligently discharged oil, and had failed to notify the USCG that a hazardous condition existed on the vessel. The government also charged an individual company official with sending out an unseaworthy vessel and failing to notify the Coast Guard. A jury returned a guilty verdict on all charges. Convicted were Pedro Rivera, general manager of Bunker Group Puerto Rico (his conviction was later reversed), his employer, and Bunker Group Incorporated and New England Marine Services, as was the Master of the Tug Emily S, Captain McMichael.
On 30 March 1994, the VLCC Seki collided with the M/T Baynunah off Fujairah. As a result of the collision, 16,000 tons of light Iranian crude spilled into the Gulf of Oman damaging the Fujairah coastline. Officials from the United Arab Emirates arrested the masters of both vessels, British citizens Terry Lau Chuing Hui and Donald Shields.
Palm Beach Cruises paid a $500,000 criminal fine for discharging waste oil from bilges, causing a 2.5-mile oil slick off the coast of Florida.
American Global Lines, based in Hawaii, paid a $100,000 criminal fine for the dumping of demolition materials into the sea.
On 6 February 1995, the M/V Union, carrying a cargo of coal, grounded in Kanmun Kaikyo, Japan. The vessel was damaged, but there was no pollution.
After an investigation by the Japanese MSA, the master of the vessel, Michael Thompson, was arrested. Eventually, the Master was found not to have been criminally responsible for the incident, but he was fined 150,000 Japanese Yen.
Regency Cruises paid a $250,000 criminal fine for discharging plastics into the sea.
On 9 January 1998, sentences were handed down in United States v. Eklof Marine Corp., et al., as a result of the grounding of the barge North Cape and the resulting oil spill of 828,000 gallons of home heating oil off Rhode Island. The sentencing followed a plea bargain involving criminal charges against Eklof Marine Corporation, its president and affiliates, and the captain of the tug Scandia, which was towing the North Cape.
Under the plea bargain, Eklof Marine Corp., two corporate affiliates, Eklof’s president, and the tug captain pleaded guilty to federal charges of criminal negligence and violations of the Clean Water Act, Refuse Act, and Migratory Bird Treaty Act, and Eklof pleaded guilty to the state felony information charging the corporation with spilling oil in violation of the Rhode Island Oil Pollution Act.
When sentenced, the US District Court fined Eklof and its corporate affiliates $3.5 million for their negligence in causing the spill: $3 million of the penalty was imposed for killing migratory birds. The corporations were placed on probation for two years. The president of Eklof was fined $100,000 for his criminal negligence, and the captain of the tug was fined $10,000 for his criminal negligence. There was no jail time imposed on any of the defendants.
The Captain of the Taiwanese freighter, Cheng Siou, and six other Taiwanese officers of the ship were charged with murder by Canadian Authorities. The killings of Romanian stowaways allegedly took place at sea during March 1996, and were reported to Canadian Authorities by Filipino crewmembers. The disposition of the criminal charges is unknown.
On 28 February 1997, the Greek tanker M/T Nissos Amorgos grounded in the channel of Lake Maracaibo, and 25,000 barrels of oil spilled into the water.
The Captain of the ship, Konstadinos Spiropulos, was arrested and placed under house arrest. Eventually, a year later, he was formally charged under the Venezuelan criminal code for causing pollution by spillage or leakage of oil.
He was later granted compassionate leave, and he was permitted to return to Greece. He was eventually sentenced, in absentia, to 16 months in prison by the Venezuelan court. He never returned to Venezuela.
The M/T Evoikos was involved in a collision with the M/T Orapin Global in the Singapore Strait on 15 October 1997. The collision resulted in the pollution of Singapore waters by oil lost from the Evoikos. The spill was described to be massive: 29,000 tons of cargo from three ruptured tanks in the Evoikos.
Both ship’s masters were arrested by Singapore Police and presented with criminal charges, including negligent and reckless navigation and destruction of property. Both masters pleaded guilty to a number of charges, and they were sentenced on 14 July 1998.
The Master of the M/T Orapin Opal was sentenced to two months in jail, and to fines totalling S$11,000.
The Master of the M/T Evoikos was sentenced to three months in jail, and fined S$60,000.
Ulysses Cruises of Miami and Seaway Maritime of Greece were each fined $75,000 for dumping oil in the Atlantic Ocean. Ulysses was fined an additional $75,000 for dumping plastic bags full of garbage.
In 1998, Royal Caribbean Cruises, the Miami based cruise ship operator, paid a $6.5 million fine, after pleading guilty to seven felony charges for dumping oily bilge water and toxic chemicals in Southeast Alaska.
Holland America paid $2 million in fines of which $1 million was a criminal fine and $1 million was restitution. Holland America pleaded guilty to two counts based upon a single representative incident of illegal discharge of oil contaminated bilge waste and falsification of the oil record book.
As the result of a leak in the vessel’s fuel tank in San Francisco in September of 1998, shipmaster Dimitrios Georgantas was sentenced to three years probation for negligent discharge of oil and failure to report the incident.
A fishing vessel grounded off Kauai, and 14,000 gallons of diesel fuel leaked into the sea. It was reported that the captain would face criminal charges. Disposition of the case is unknown.
In 1999, Royal Caribbean pleaded guilty to 21 counts of criminal wrongdoing involving the discharge of oil and other substances into the sea, and it paid $27 million in fines.
The M/V Eburna spilled a quantity of unleaded petroleum into Botany Bay in August of 1999. Originally, the Master of the vessel was convicted of violating several criminal statutes, but the conviction was later overturned by the Australian Criminal Court of Appeal, which held that there were no grounds to conclude that the Master had acted criminally in that the spill was accidental and it was sheer speculation to suggest that the Master could have done anything more to prevent the spill.
On 8 December 1999, the M/T Erika sank off the west coast of France, while attempting to reach a port of refuge. Thousands of tons of oil leaked from the vessel, and the oil stained the Brittany coastline. The Master, Karun Mathur, was charged by the French authorities for the crimes of putting life in danger and causing marine pollution. He was detained in a French jail, but eventually released on bail. Disposition unknown.
A barge worker allegedly left his post at the GATX Terminal in Carteret, N.J., and allowed 49,000 gallons of diesel oil to spill into the Arthur Kill.
He was later arrested at the San Francisco International Airport, and charged with one count of negligence for leaving the pumping unsupervised and one count of lying about his criminal record by failing to disclose two drunken driving arrests. He was released on $50,000 bail, and was facing a year in jail. The disposition of this case is not known.
A Greek ferry sank after hitting rocks outside of Paros, Greece on 26 September 2000. Eighty-two people were killed. Captain, Vassilis Yannakis, his lieutenant, and three other crewmembers were arrested and charged with manslaughter. The Captain is still being held in Chios. It has been reported that the vessel personnel are scheduled to go to trial in early 2004.
The owner and operator of the M/T Neptune Dorado pleaded guilty in Federal Court on 19 December 2000 to felony charges and were sentenced to pay criminal and civil penalties totalling more than $2.5 million for failing to report the ship’s hazardous condition while operating in San Francisco Bay. The Master of the ship, and the former Master of the ship also pleaded guilty to criminal charges.
The criminal charges stemmed from numerous dangerous conditions found by the Coast Guard, including inoperable fire pumps, oil leaks in the engine room, faulty ventilation systems and, most significantly, the fact that a significant quantity of oil leaked into the ship’s ballast tanks, creating a serious risk of explosion while the vessel was in San Francisco Bay.
The ship’s Master pleaded guilty to those charges. The ship’s former Master, who handed the ship over to the other captain before the voyage to San Francisco, pleaded guilty to operating, and aiding and abetting operation of the ship in a grossly negligent manner, in violation of 46 UC. §2302 and 18 USC §2. Both Captains were placed on three years probation and ordered to pay criminal fines of $25,000 and $5,000.00, respectively.
On 11 January 2001, in the US Federal Court for the Northern District of California, Matson Navigation Line pleaded guilty to six criminal charges, for making false statements to the US Coast Guard and lying about dumping oil-contaminated water into the Pacific Ocean. The criminal charges alleged that on several occasions between 1996 and 1998, crewmembers on the M/V Lihue made false entries in the vessel’s oil record book to conceal discharges of oil at sea, which was in violation of MARPOL. Matson was ordered to pay $3 million as a penalty.
On 17 January 2001, the Ecuadorian-flagged tanker, Jessica, ran aground and spilled 185,000 gallons of heavy oil in the Galapagos archipelago. Following the disaster Ecuadorian authorities arrested the Captain and 13 crewmen from the M/T Jessica. The charges included negligence and crimes against the environment. The disposition of the charges is unknown.
The Greek registered M/V Amorgos, carrying 60,000 tons of iron ore, ran aground off the south coast of Taiwan. Fuel oil spilled into the sea and fouled the Kenting National Park. The ship’s senior crew, including the captain, chief officer, and chief engineer were arrested pending an investigation of the incident.
A 500-gallon spill in the Columbia River has been linked to the container ship M/V Ever Group which is owned by Evergreen Marine Corp. In March 2002, the State of Washington has assessed a civil penalty in the amount of $67,000 against Evergreen Marine Corporation. While Evergreen denies responsibility for the spill, the Coast Guard and Department of Justice are still pursuing a criminal investigation.
On 25 June 2001, the Judge in the Southern District of Texas found Captain Rolf Arnvard guilty of committing a felony for presenting a false Oil Record Book to the US Coast Guard. Apparently, the Captain had ordered that oily cleaning water be discharged into the ocean, and he told his chief officer not to record the procedure in the ship’s Oil Record Book. He was sentenced to one day in jail, and ordered to pay a $5,000.00 fine.
Canadian authorities, acting at the request of the United States, charged the Master, and two other crewmembers, of the Russian-owned, but Cypriot-flagged, vessel with involuntary manslaughter, misconduct and aiding and abetting. It has been alleged that the Russian vessel collided with, and sank, a US fishing trawler, the Starbound, on 5 August 2002. The crew was recently granted leave to return home pending the trial of the charges against them.
Waterway police in Rostock, Germany arrested the Captain and Chief Engineer of the 10,104 grt Fratzis for allegations of environmental pollution.
It was alleged that vessel had pumped oily bilges into the sea during a voyage from Dublin to Rostock. The matter was turned over to the local district attorney. The disposition of the matter is unknown.
Coast Guard investigators found evidence of OWS [Oily Water Separator (ed.)] bypass on the M/T Alkyon during an inspection when the vessel called at the Port of New York in mid-January of 2002. The chief engineer, Christos Kostakis, was later arrested. Kostakis pleaded guilty and was sentenced to time served after spending almost nine months in the United States. Ionia Management pleaded guilty in the US Federal Court in New York to falsifying documents related to the oily-water separator. Ionia Management is awaiting sentencing.
A court in Thailand sentenced the Master of the M/T Eastern Fortitude to one year in jail for reckless endangering and ecological damage. The vessel had collided with a rock and spilled 243,000 litres of low speed diesel oil, much of which washed ashore. After pleading guilty, the Master later had his sentence reduced to six months.
A vessel’s chief officer was indicted by the Department of Justice on criminal charges stemming from the death of a crewmember who had been allowed to enter a cargo tank for cleaning purposes. It was alleged that the chief officer was aware that the tank had previously been tested to be unsafe. The disposition of the matter is unknown.
A ship’s Captain (Doo Hyon Kim of the Khana) and two Chief Engineers (In Ho Kim of Khana and Min Gewn Go of Sohoh) from the Panamanian flag vessels Khana and Sohoh were arrested and charged with keeping false log books to conceal the dumping of waste oil and sludge from the vessels, obstructing a Coast Guard Investigation, and obstruction of justice for allegedly telling crewmembers to lie to a federal grand jury. The charges arose following inspection of the vessels at Dutch Harbor, Alaska in February of 2002. The chief engineers from the Khana and Sohoh pleaded guilty to the charges in May of 2002, and were sentenced to six months in prison. Captain Kim from the Khana pleaded guilty to charges of falsifying records, obstructing justice and witness-tampering in June of 2002. He was sentenced to four months in prison.
A Chief Engineer from the M/V Asahi, Antonio P. Librero, was arrested and charged with keeping false log books to conceal the dumping of waste oil and sludge from the vessels, obstructing a Coast Guard investigation, and obstruction of justice. The charges arose following inspection of the vessel at Dutch Harbor, Alaska in February 2002. The chief engineer pleaded guilty to the charges in May 2002, and was sentenced to six months in prison.
A federal judge in Baltimore, Maryland ordered the vessel’s Danish ship management company to pay a criminal fine of $250,000 for conspiring to hide a hazardous leak in the oil tanker’s hull, failing to report the dumping of oil to save the ship, and falsifying logbooks as part of a subsequent cover-up. The M/T Freja Jutlandic had called at Baltimore in March 2000, and the scheme came to light after crewmembers secretly reported the alleged crimes to Coast Guard officials. It was alleged that the vessel dumped 25,000 gallons of water contaminated with fuel oil into the sea during a voyage from Mexico to Baltimore in March 2000.
The ship management company pleaded guilty in October 2001, but was in bankruptcy by the time of sentencing. A number of other parties, including the owner of the ship, the captain, the chief engineer and the ship’s superintendent were also indicted, but the status of their cases is not known. It has been reported that the vessel’s Master, the chief engineer and the ship’s superintendents are currently fugitives.
The US Attorney’s Office in Newark, New Jersey investigated allegations that crewmembers of one or more of OMI Corp.’s vessels, including the M/T Guadalupe, had bypassed OWS systems at sea, presented false statements to the government and otherwise obstructed the government’s investigation of such charges. US Coast Guard officials at Carteret, New Jersey had boarded the M/T Guadalupe in September 2001. The Master and Chief Engineer of the M/T Guadalupe were arrested and pleaded guilty to the charges in May, 2002. They were, however, deported back to India before they were sentenced. The charges that the Chief Engineer pleaded guilty to included: submitting false documents to the US Coast Guard in an effort to cover up the illegal dumping of thousands of gallons of waste oil and sludge at sea. Sentencing was to have taken place in September 2002, but the disposition of the case is not known.
Carnival, the Miami-based cruise operator pleaded guilty in the US District Court in Miami to six counts of falsifying records with respect to oil-contaminated discharges. The company was ordered to pay $9 million in fines, and was further ordered to spend $9 million on environmental projects and watchdog programs for its vessels for a period of five years.
The case arose out of repeated discharges into the sea between July 1998 and January 2001, and the US authorities first became aware of the criminal conduct through a tip to the special US government task force investigating cruise ship pollution.
Two Korean chief engineers from the vessel were criminally charged in the US District Court in Portland, Oregon, based upon accusations that they falsified ship’s logs to hide illegal dumping of the vessel’s oily waste into the ocean during a voyage from Japan to the United States. The accusations arose from an inspection of the vessel in Portland on 10 April 2002, and a tip from a former crewmember. Four other crewmembers from the vessel were detained as material witnesses. One of the engineers, Duk Jo Jeong, a first assistant engineer, was sentenced to two years of probation, to be followed by deportation to his home country of South Korea. The chief engineer, Pyeong Gab Jung, was sentenced to three months in jail, and subsequent deportation. He had been detained in the US for six months during the pendency of the case.
The M/V Maria Carmela caught fire and burned off the coast of Quezon in April, killing 23 people and injuring 117 others. A special Board of Marine Inquiry recommended that criminal sanctions be meted out to the owner, captain and crewmembers of the vessel. The disposition of the case is unknown.
A Polish Master was fined $6,500 in Federal Court in New Orleans, placed on probation, and deported for drinking on his ship. The Master pleaded guilty to one count of operating a motor vehicle while under the influence of alcohol. The matter arose from a complaint by the bar pilot, who boarded the ship at the mouth of the Mississippi.
In May of 2000, after being taken over by Star Cruises, the company confessed it had been criminally discharging oil into the sea and covering it up with false entries in the ORBs [Oil Record Books (ed.)] of several vessels. The company paid a criminal fine of $1 million in August of 2002.
The M/T Kaede had a small oil spill in Tacoma, Washington on 22 October 2002. During the investigation of the spill, it was discovered that the vessel had been bypassing the OWS and discharging oily water into the ocean during the voyage from the Far East utilising the vessel’s sanitation system. On 22 December 2002, the owner of the vessel, the operator of the vessel and the vessel’s chief engineer pleaded guilty in the US District Court for Tacoma, Washington to criminal charges. The vessel owner pleaded guilty to a misdemeanour violation of the Federal Clean Water Act for the spill, and the vessel operator pleaded guilty to a felony violation for making false statements to the US Coast Guard, as well as to the misdemeanour violation of the Clean Water Act. The chief engineer pleaded guilty to both charges. At sentencing, on 28 March 2003, the defendant corporations were required to pay a collective fine of $750,000, develop and implement a comprehensive environmental compliance program, and serve four years on probation. The chief engineer was sentenced to six months in jail.
In May of 2002, the Canadian Air Force spotted an oil sheen from the M/V Rubin Stella at sea, which was reported to US authorities. The US Coast Guard subsequently boarded the vessel for an inspection at Longview, Washington. As a result of the investigation, the chief engineer pled guilty to knowingly making a false statement to the Coast Guard based upon entries in the vessel’s Oil Record Book. He also admitted to directing other crewmembers to discharge oily bilge waste and oily sludge overboard during the period from 31 July 2001 through June 2002. In October of 2002, the chief engineer (Chun Do Oh) of the Panamanian-flagged bulk carrier, M/V Rubin Stella, was sentenced to a year and a day in jail by US Federal judge in Tacoma, Washington, on pollution charges.
Captain Apostolos Mangouras was arrested by Spanish police following the sinking of, and subsequent spill by, the M/T Prestige off La Coruna, Spain. He has been charged with causing pollution and hampering salvage operations by the Spanish authorities. The Captain was later released, after 85 days in jail, with the posting of $3.3 million as bail. He remains in Spain as the case proceeds. See Paper above.
A Bouchard barge had a spill at Astoria, Queens, New York, which was estimated to be 2,100 gallons. The captain of the barge tested positive for alcohol, and it is believed that criminal charges against him are pending.
On 3 January 2003, Dolby Marine, Inc. of Salisbury, Md. was sentenced in the Federal Court of Baltimore for a felony charge of failure to notify the US Coast Guard of an oil spill. An estimated 50 to 100 gallons of diesel oil spilled from the tug. The sentence included a fine of $7,500, and three years probation. The owner of the company was also sentenced to six months home detention, with work release, and fined $3,000 for a misdemeanour charge of negligent discharge of oil into US waters.
On 14 January 1999, the Star Eviva experienced a malfunction in its fuel oil transfer system, which caused an oil spill into the Atlantic Ocean and the death of at least 183 migratory birds. The ship’s captain and chief engineer were indicted for conspiracy to obstruct justice. Both men are currently fugitives.
This year, however, the Norwegian owner of the vessel pleaded guilty, pursuant to which it is required to pay a fine of $200,000.00. The case was prosecuted by the US Attorney’s Office in Charleston, South Carolina.
A Chinese cook has been accused of stabbing the captain and first mate of a fishing vessel on the high seas. He was arrested, and is due to be brought to trial in Honolulu.
A Chinese captain was arrested, and three other crewmembers are being detained, for failing to allow a lawful boarding of the US Coast Guard. The vessel had been observed to be illegally fishing 1,200 miles northwest of Midway Island, and when US authorities attempted to stop and board the vessel, it attempted to flee to its homeport. The US authorities finally caught the vessel in the East China Sea.
The tanker M/T Bow Eagle collided with the fishing boat Cistude off the coast of Brittany in August of 2002. At the time of the collision, second officer, Ronnie Zapp, was navigating the tanker, and the M/T Bow Eagle failed to stop after the collision. Four people died in the accident. The second officer, a Filipino citizen, was extradited from the Netherlands to Norway to face criminal charges in September 2002. In March 2003, a Norwegian court sentenced the second mate to five years in prison.
The chemical tanker Dutch Aquamarine ran into the stern of the freighter Ash, while both were proceeding in the southwest lane of the Dover Straits separation scheme. At the time of the accident, the vessel’s second officer was navigating the Dutch Aquamarine. The Master of the Ash was killed in the accident. In March 2003, the second officer of the Dutch Aquamarine was convicted of manslaughter. He was found to have been grossly negligent in failing to maintain a proper and effective lookout. The second officer is currently awaiting sentencing.
[∗] Michael G. Chalos is a leading maritime lawyer in the US with the firm of Fowler, Rodriguez & Chalos in New York. This paper is based on a speech he delivered at McGill University in Canada on 4 April 2003.
[1] While not involving a Master directly, on 6 March 2003, a second officer of the Dutch chemical tanker, Dutch Aquamarine, was found guilty of manslaughter by an English Court for rear-ending the M/V Ash in the Dover Straits, which ultimately led to the death of the Master of the Ash, who drowned while abandoning the stricken vessel.
[2] So were the words of the State Court Judge in New York when Captain Hazelwood surrendered to him to answer an Alaskan Warrant of Arrest just before he imposed bail of $1 million dollars for three misdemeanours. Felons in the same prison had their bails set at $5,000-$10,000.
[3] US v. Hilger, [1989] USCA9 92; 867 F 2d 566 (9th Cir.[1989] USCA9 92; , 1989), 1989 AMC 926.
[4] The basic notion running through the traditional criminal law was not to criminalize conduct which lacked a showing of evil intent or motive or which would be traditionally considered a civil wrong, addressed by civil remedies. Most judicial interpretations of traditional general criminal statutes incorporated the concept of mens rea, even if not specifically provided for in the statute. Historically, the US Courts have recognised that in order to be guilty of a crime a person must have a criminal intent or mens rea. Thus, in order to be guilty of a crime, one needs to have acted with wrongful purpose, knowledge of a particular wrong, or in a reckless and/or wilful manner. The mental state necessary to trigger criminal liability will vary from statute to statute. Following the traditional rule, one would expect in maritime accidents resulting in pollution that criminal liability would be predicated upon the individual’s mental states for: wilful or knowing conduct, negligence, criminal negligence, recklessness and wilful ignorance. That, however, is no longer the case, as most US environmental criminal statutes are based on strict liability where the actor’s intent is immaterial.
[5] The bail was reduced to $25,000 the next morning by the judge’s supervisor who found the $1 million bail ‘constitutionally impermissible’. As an aside, after this incident, the New York State legislature amended the law to bar cameras from the courtroom at the arraignment stages of a prosecution.
[6] Captain Hazelwood was, in fact, charged with three misdemeanours and one felony count. He was acquitted of the felony and the two most serious misdemeanours charges. He was convicted of Class B misdemeanour for negligent discharge of oil, a per se violation. He was sentenced to 1000 hours of community service and a $50,000 fine.
[7] The Spanish maritime inspector who went on board the stricken Prestige and ordered it away from the Spanish Coast and the harbourmaster of La Coruna at the time of the incident, who refused to permit the vessel to come into a port of refuge, were both promoted. Talk about the Peter Principle at work. Lloyd’s List, 7 February 2003.
[8] In the Prestige matter the Spanish government has decided to pursue a civil suit against the American Bureau of Shipping, the vessel’s classification society.
[9] In fact, the firing and the unflattering statements made by Exxon officials against Captain Hazelwood at that time, came back to haunt them at the civil trial when they attempted to embrace him for strategic reasons. The jury with the encouragement of the plaintiff’s attorney, obviously did not buy the change of heart and awarded $5 billion dollars in punitive damages.
[10] See attached Appendix A :Summary of Notable Cases Involving Criminal Charges Against Ship’s Officers in Recent Years.
[11] Recently, in the wake of the Prestige, the European Commission has proposed even more stringent regulations officially criminalizing pollution-related incidents. The Greek Shipping Cooperation Committee has filed a well-reasoned objection against such proposals urging instead more comprehensive and cooperative joint governmental efforts to encourage maritime safety. (Lloyd’s List, 28 March 2003).
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