The Seaman's Manslaughter Statute: An Old Tool Being Used Anew
Monday, March 20, 2006
By Jeanne M. Grasso
Over the last ten or so years, criminal prosecutions have become
commonplace in the maritime industry. The most common prosecutions
stem from environmental violations, but often also include charges
of false statements, conspiracy, and obstruction of justice. Over
the last several years, however, a new trend has begun - that of
prosecutions under the Seaman's Manslaughter Statute. These
prosecutions have come to the fore because of the Staten Island
Ferry incident, which occurred in 2003, where the Seaman's
Manslaughter Statute was used to extract guilty pleas from the pilot
and a shoreside official. History of the Seaman's Manslaughter
Statute. Since the origin of steamboats in the early 1800s,
thousands of passengers died from boiler explosions and fires, which
plagued this class of vessel. States began to step in and regulate
steamboats, but the effort was disjointed and ineffective. The death
of Senator Josiah Johnson in a steamboat explosion prompted
President Andrew Jackson, in his 1833 State of the Union address, to
make steamboat safety a federal priority. In 1838, Congress
passed "An act to provide for the better security of the lives of
passengers aboard vessels propelled in whole or in part by steam"
(the "1838 Act"). The 1838 Act set forth various licensing,
inspection, and safety requirements for steamboats. The focus of the
1838 Act, however, was to demand the "utmost vigilance of the crew
by attaching criminal liability for fatal lapses." According to the
legislative history, the 1838 Act was designed to punish captains,
engineers, and pilots of steamboats for their negligence or
inattention related to vessel operations.
The 1838 Act did not go far enough, and by 1852 over 7,000 people
had died on steamboats. Congress realized that the technology was
part of the problem and that imposing criminal liability on the
crewmembers was not an effective solution. In 1852, another
steamboat safety law was enacted (the "1852 Act"), which imposed
various safety equipment requirements, including hydrostatic
testing, safety valves, lifeboats, life preservers, and firefighting
equipment. Steamboat-related deaths decreased dramatically after
enactment of the 1852 Act, which largely provided the basis for the
U.S. Coast Guard inspection regime as we know it today. The Seaman's
Manslaughter Statute. The Seaman's Manslaughter Statute generally
criminalizes misconduct, negligence, or inattention to duties by a
captain, engineer, pilot, charterer, owner, operator, or other
person employed on or responsible for managing any vessel. It
provides for fines and imprisonment of up to ten years. The elements
of the crime are that: (1) the defendant was [captain, pilot,
operations manager, etc.] of the vessel; (2) the defendant was
guilty of misconduct, negligence, or inattention to his duties on
the vessel; and (3) that by reason of such misconduct, negligence,
or inattention, someone died. Over the last few years, the Seaman's
Manslaughter Statute has been used to convict not only crewmembers,
but also shoreside personnel involved with vessel operations. It is
important to note that intent is not an element of the offense and
it is not necessary to show that the acts or omissions that caused
the death were willful or intentional. In fact, in most
jurisdictions where the statute has been utilized, simple negligence
is enough to secure a conviction, save for in Florida, which
requires gross negligence.
Until recently, prosecutions under the Seaman's Manslaughter Statute
were a rare event. Recent high-profile casualties, however, have
given the statute a new life. Over the last several years, it has
been used to convict not only crewmembers, but also shoreside
personnel who are involved with vessel operations. Early
Prosecutions. During its first century and half, there were roughly
eight major prosecutions, spanning 1848 through 1990. The most
notable of these prosecutions involved the General Slocum disaster
in 1904, where more than 1,000 people died when the vessel caught
fire on the East River in New York. The investigation revealed that:
the captain did not conduct fire drills or provide emergency
training to crewmembers; the fire hoses were rotten and ruptured
under the pressure; and the lifejackets were rotten and contained
disintegrated cork, which resulted in many passengers drowning.
Captain Van Shaick, executives of Knickerbocker Steamboat Co., and
the inspector who had recently certified the vessel as fit for
service were all indicted. Van Shaick was convicted of manslaughter
and was sentenced to ten years hard labor, though he only served
three years before being pardoned by President Taft. Knickerbocker
escaped with only a nominal fine, despite the fact that the trial
revealed the company had falsified records to cover up its lack of
attention to passenger safety. Recent Prosecutions. Unlike the
paucity of prosecutions at the outset, during the last seven years,
there were six major prosecutions under the Seaman's Manslaughter
Statute, as well as the recent indictment of a charterboat fishing
boat captain relating to the deaths of three passengers.
The first of the recent prosecutions, U.S. v. Lee Peng Fei, involved
a human smuggling scheme. Fei, the mastermind, endeavored to smuggle
298 Chinese aliens aboard the Golden Venture into New York in 1993.
When his plan to send small vessels to disembark the passengers fell
through, he ordered the ship to ground in New York, which resulted
in ten people drowning while trying to swim ashore. After a
worldwide manhunt and a subsequent extradition battle, Fei pled
guilty to the deaths of six persons, among other charges. Fei was
sentenced to 20 years in prison. In U.S. v. Mitlof, a water taxi
capsized, killing a passenger in 1998. The owner had allowed the
vessel to operate with numerous mechanical and structural
deficiencies. The vessel's owner and captain were convicted of
conspiracy, manslaughter, and wire fraud, the latter count because
the owner advertised the vessel as being Coast Guard inspected,
knowing it was not. U.S. v. O'Keefe involved a cocaine-impaired
tugboat pilot who caused an accident resulting in the sinking of the
vessel and the death of his ex-wife in 2001. The pilot was convicted
of manslaughter, sentenced to one year in prison, and ordered to pay
$640,000 in restitution. He appealed the conviction, arguing that
gross negligence rather than simple negligence was required to
trigger criminal liability. The Fifth Circuit Court of Appeals
confirmed that simple negligence was all that was required to
sustain a conviction.
In U.S. v. Shore, the captain and first mate pled guilty to
manslaughter charges resulting from the death of an underage woman
on a booze cruise in 2001. After several hours of partying, the
vessel's anchor dragged and it collided with a moored sailboat,
causing a section of the rail to break. The first mate motored away,
knowing the rail was broken, and a woman fell overboard and drowned.
The captain and first mate pled guilty to manslaughter, were
sentenced to six months home detention with electronic monitoring,
500 hours of community service, and a $10,000 fine, and were ordered
to pay $40,000 in restitution. In U.S. v. Thurston, the chief mate
instructed a crewmember on the S.S. Trinity to enter and clean a
tank that had contained MTBE. When the crewmember entered the tank
in 2001, he was overcome by fumes and died. The chief mate was
indicted under the Seaman's Manslaughter Statute, but the first
indictment was dismissed by the district court because it was based
on simple negligence rather than gross negligence. A second
indictment was brought charging him with the same violation, but by
acting with gross rather than simple negligence. The case went to
trial and the chief mate was acquitted. The Staten Island Ferry
incident, which occurred in 2003, is the most recent case resulting
in convictions under the Seaman's Manslaughter Statute. In this
case, the Andrew Barberi veered off course and allided with a
concrete maintenance pier, killing 11 people and injuring 73 others.
Immediately thereafter, a joint federal/state investigation
commenced, resulting in the indictments of the captain, assistant
captain (pilot), director of ferry operations, port captain, and the
pilot's physician. The pilot pled guilty to 11 counts of seaman's
manslaughter and for making a false statement to the government. He
admitted he was overly tired, taking painkillers, and in such pain
he was not in the proper physical condition to operate the vessel.
In his license renewal application, the pilot stated he was not on
prescription drugs for fear of losing his job. He was sentenced to
18 months in prison. The director of ferry operations was also
charged with 11 counts of manslaughter, as well as obstruction of
justice and false statements. The manslaughter charge stemmed from
his failure to ensure that the vessel was in the control of a
qualified pilot and to enforce the two-pilot rule, which had a long
history in the ferry operations. The two-pilot rule required that
two pilots be in the pilothouse during docking operations. He pled
guilty to one count of manslaughter and was sentenced to one year in
prison. The captain, who was not in the pilothouse at the time of
the allision, was indicted for lying to the investigators. The
charge was reportedly dismissed in exchange for his cooperation. The
port captain was indicted for obstruction of justice and making
false statements to the government for asserting that the two-pilot
rule was enforced. The pilot's physician was indicted for making
false statements to the government by signing a medical form that
accompanied the pilot's license renewal application submitted to the
Coast Guard, which indicated that the pilot was not taking any
prescription medications. The maritime industry has increasingly
been the target of criminal prosecutions for the better part of the
past decade, originally (and still) for environmental crimes and now
for seaman's manslaughter. The recent frequent use of the Seaman's
Manslaughter Statute should serve as a wakeup call for companies to
take action to avoid becoming a part of this trend. This includes
establishing and effectively implementing a compliance program based
not only on regulatory requirements, but also on other assessed
risks.
Jeanne M. Grasso is a Partner in the Maritime and White Collar
Practice Groups at Blank Rome LLP and focuses her practice on
maritime and environmental law, including issues confronting
facilities, vessels, and cargo owners on an international, federal,
and state level. Her practice commonly includes conducting internal
investigations, enforcement defense matters, and compliance
counseling on maritime regulatory matters. This article is a
condensed and updated version of an article that appeared last year
in Benedict's Maritime Bulletin (Second Quarter 2005). 18 U.S.C. ยง
1115. See, e.g., U.S. v. Warner, 28 F. Cas. 404 (D. Ohio 1848); U.S.
v. Farnham, 25 F. Cas. 1042 (S.D.N.Y. 1853); U.S. v. Collyer, 25 F.
Cas. 554 (S.D.N.Y. 1855); U.S. v. Keller, 19 F. 633 (D. W.Va. 1884);
U.S. v. Van Schaick, 134 F. 592 (S.D.N.Y. 1904), aff'd Van Schaick
v. U.S., 159 F. 847 (2d Cir. 1908); Hoopengarner v. U.S., 270 F.2d
465 (6th Cir. 1959); U.S. v. Hilger, 867 F.2d 566 (9th Cir. 1989);
and U.S. v. Holmes, 104 F. 884 (N.D. Ohio 1900). See, e.g., U.S. v.
Fei, 225 F.3d 167 (2d Cir. 2000); U.S. v. Mitlof, 165 F. Supp. 2d
558 (S.D.N.Y. 2001), aff'd U.S. v. Sheehan, 89 Fed. Appx. 307 (2nd
Cir. 2004); U.S. v. O'Keefe, 2004 U.S. Dist. LEXIS 1494 (E.D.LA.
Feb. 4, 2004), aff'd Case No. 04-30691 (5th Cir. 2005); See
Sentencing Memorandum of United States in U.S. v. Shore, No. 1:02-cr-
10413-RW2-ALL (D. Mass. Sept. 3, 2004); U.S. v. Smith, No. 1:03-CV-
06049-ERK-VVP (E.D.N.Y.); and U.S. v. Thurston, 362 F.3d 1319 (11th
Cir. 2004). Press Release from the United States Attorney's Office,
District of Oregon (January 12, 2006), Fishing Boat Captain Indicted
in Deaths of 3 Passengers.
JALESVEVA YAYAMAHE
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