You may not be aware of it unless you work intimately with ocean shipping, but criminal prosecutions have become more common in the maritime industry, primarily dealing with environmental violations and post-incident conduct, like making false statements and obstruction of justice.
In recent year, prosecutors also have turned to an old law called the Seaman’s Manslaughter Statute as an enforcement tool, according to attorneys Jeanne M. Grasso and Kierstan L. Carlson of the law firm of Blank Rome LLP.
The 19th Century statute allows for federal charges against vessel officers and corporate executives of the vessel owner or charterer if a death results from negligence aboard a vessel. “Several high-profile casualties have clearly placed the statute back on the government’s radar and it is now an enforcement risk for passenger and cargo vessels alike,” they say.
Originally enacted in 1838, the law criminalizes negligence and inattention to duties by a captain, engineer, pilot, or other person employed on a vessel. Violations can result in up to 10 years’ imprisonment, a fine, or both. The statute arose from 19th Century laws aimed at preventing deaths from fires on steamboats, which were designed to punish ship’s officers for negligent conduct.
A similar focus exists today, Grasso and Carlson note. Under the statute, vessel officers and shoreside employees may be liable for manslaughter if their negligent conduct causes a fatality. They emphasize that this represents a “simple negligence” standard, meaning that the government need not prove the conduct was willful, knowing, or reckless.
However, a heightened “gross negligence” standard applies to cases that are brought against executives of corporate vessel owners or charterers. In such cases, the government must prove that the individual corporate executive had “control and management of the operation, equipment, or navigation” of the vessel, as well as “knowingly or willfully caused or allowed” the negligent conduct that resulted in a death.
Only a few Seaman’s Manslaughter cases were brought before the 2000s. One of the most historic of these earlier cases was the General Slocum disaster in 1904, where more than 1,000 people died in a vessel fire in New York. Indictments were brought against the captain, corporate executives and the vessel inspector after an investigation revealed serious violations of safety standards and the creation of false records to cover up the deficiencies.
Among the resulting effects that followed in the wake of this incident were major regulatory changes and reform of the predecessor agency to the U.S. Coast Guard.
More Recent Cases
All remained quiet after that until the early 2000s when several cases involving major casualties revived the statute. These include a Staten Island Ferry incident in 2003, where a ferry veered off course and collided with a concrete maintenance pier, killing 11 people and injuring 73 others.
An investigation was damning. It found that: the pilot was taking painkillers and the pilot’s doctor knew about his condition and falsified medical records that were required for his pilot’s license. It also was discovered that the director of ferry operations knew the ferry was operating in violation of a rule mandating two pilots in the wheelhouse, and the port captain lied to investigators about compliance with the rule.
The upshot was that the pilot and director of ferry operations were convicted of manslaughter and the captain and doctor were convicted of making false statements and obstructing justice.
More recent Seaman’s Manslaughter cases show how broadly it can be applied and underlines the fact that a casualty with fatalities will almost certainly result in a criminal investigation, along with a parallel investigation by the National Transportation Safety Board and civil lawsuits, Grasso and Carlson warn.
For example, the government brought charges in two high-profile and tragic passenger vessel casualties—the Stretch Duck 7 duck boat disaster in the Ozarks in 2018 where 17 people died, and the P/V Conception fire in California in 2019 where 34 people died when their dive boat caught fire and sank.
Beyond these two passenger vessel cases, the government has brought Seaman’s Manslaughter charges for casualties on other types of commercial vessels, such as fishing charters, parasailing operations, tugs/barges and cargo ships.
“The government’s increasing willingness to invoke the Seaman’s Manslaughter Statute following maritime casualties should serve as a wakeup call for companies to avoid becoming a part of this trend,” said Grasso and Carlson.
Today, a marine casualty resulting in a fatality will almost certainly prompt an investigation under the Seaman’s Manslaughter Statute, in addition to any separate investigation by regulatory authorities and private civil lawsuits, they point out.
“This risk underscores the importance of implementing an effective, practical and verifiable compliance program focused not only on the minimum regulatory requirements, but also the reduction of unnecessary risk,” they stress.