Maritime Casualties: From Negligence to Strict Liability to Criminalization --

U.S. Perspective

Fajardo, Puerto Rico

October 31, 2013

Joe Walsh

Seattle San Francisco Anchorage Long Beach Hong Kong

Maritime Casualties: Ghostly Mistakes,

Spooky Prosecutions, and other

Environmental Horror Stories

Fajardo, Puerto Rico

October 31, 2013

Joe Walsh

Seattle San Francisco Anchorage Long Beach Hong Kong

MARPOL & US LAWAnnex Topic US LAW

I Oil APPS 33USC1901, CWA, FWPCA, OPA

II Noxious Bulk Liquid APPS, CERCLA,Ocean Dumping Act

III Hazardous Freight APPS, CERCLA, HMTA, IMDG

IV Sewage Not A party ( * Refuse Act)

V Garbage/plastics APPS, Ocean Dumping Act, Marine Plastic Pollution

Research & Control Act VI Air Emissions APPS, Clean Air Act

Objectives

“It is difficult to get a person to understand something if his salary depends on him not understanding it.”

Upton Sinclair

Criminal Enforcement Concepts

CIVIL LAW CRIMINAL LAW

Strict Liability Negligence

Actus rea Mens rea

Comparative Superseding cause Intervening cause

United States v. Hanousek Simple Negligence = Criminal Negligence 1% the cause = 100% Criminally Negligent

Justice Thomas’ Dissent Public Welfare Statutes – “penalties commonly are

relatively small, and conviction does no grave damage to

an offender’s reputation.”

Justice Thomas & O’Conner “Whether the CWA is appropriately characterized as

a public welfare statute is an issue on which the Courts of Appeals are divided.”

Criminal Enforcement Concepts

STRICT LIABILITY• Refuse Act• Migratory Bird Treaty Act

NEGLIGENT LIABILITY• Clean Water Act

“penalties are relatively small…”

“penalties are relatively small…” Forfeiture?

National Marine Sanctuary Act

National Park System Resource Protection Act

“no grave damage to… reputation” Suspension and Debarment?

Discretionary

Mandatory ( CWA)

Stigma?

Vicarious Liability Concepts

Vicarious Liability Concepts(Everyone has a Homer Simpson)

Objectives

Response & Investigation Considerations

Understanding and Accepting the Engagement

Avoiding the Risk of Disqualification Timely Appointment of and Dealing with

Individual and Pool Counsel

Interacting With Investigative Authorities.

Representation Who is your client?

“Vessel Interests” Owner, Managers, Operator, Candle- stick Maker

Club or Member?

Multiparty Representation

The Significance of Upjohn Warnings

Avoiding Disqualification Lawyer vs. Witness

Use of surveyors, consultants and experts

Kovel Doctrine United States v. Kovel, 296 F.2d 918 (2nd Cir 1961) United States v. Adlman, 68 F.3d 1495 (2nd Cir.

1995)

Individual and Pool Counsel

Timely appointment is critical! Letters of Representation Pool Counsel → Waivers

Have a “deep” bench

Joint Defense/Common Interest Agreements potential or actual litigation joint defense communication privilege

Investigative Authorities 14 USC § 89a

authorizes the U.S. Coast Guard to board vessels subject to the jurisdiction of the United States,

anytime, any place upon the high seas and upon any waterway over which the United States has jurisdiction,

to make inquires, examinations, inspections, searches, seizures, and arrests.

The U.S. Coast Guard does not require a warrant to conduct search, seizures, arrests over any United States Waterway or high seas.

Whistleblowers

“In the discretion of the Court, an amount equal to not more than ½ of such fine may be paid to the person giving information leading to conviction.”

33 USC 1908(a) (APPS)

Seemingly Endless Port State Control Exams

Real Party in Interest status (CG-545 Policy Letter 3-10 )

Right to counsel is NOT obstruction threat of obstruction-- Really?

Investigative Authorities

“Being in a ship is being in a jail,with the chance of being drowned”

Samuel Johnson