Stefanos N. Roulakis, Attorney, Blank Rome, gave a presentation entitled “Handling Marine Casualties: An Analysis of New Reporting Requirements and Risks of Criminal Prosecutions“ at the 2016 SAFETY4SEA Conference & Awards. During his presentation, he stated that vessel owners and operators worldwide continue to face criminal liability for safety-related incidents, therefore, it is key to have strategies to mitigate risk. It is essential to be familiar with reporting requirements, especially the U.S. Coast Guard’s recently updated casualty reporting requirements. However, Mr Roulakis noted that while vessels have response plans in the case of serious incidents, many companies do not. He highlighted how critical is to develop a management response plan for mitigating risk and also an essential part of an effective management response plan is detailing immediate means to contact counsel.
It is a general truth that stitching in time saves nine, meaning that a little preparation goes a long way. I believe lot of the incidents that have ended up badly both for owners and seafarers, could had involved a little bit more preparation. I would like to share few marine casualties resulting to fatalities and examine what we could have done to help avoid the problems occurred.
One of the biggest incidents in the United States was of course dealing with the Deepwater Horizon on the Macondo Well blowout. It is an important case to examine for a couple of reasons: The first is that BP was charged with a variety of crimes and then end up settling with the largest criminal fine in United States history, 4 billion dollars. When there is a loss of life or a big catastrophic incident, there would be an appetite for enforcement. Prosecutors, enforcement officials will want to do everything they can to send a message both for the media and the industries as a whole that they are looking at this very seriously and that would mean penalties. The US Department of Justice agency is responsible for prosecuting marine crimes including MARPOL cases without restriction over safety enforcement not only in the maritime sector but other sectors. Safety and environment are not things to look at separately but rather together. In addition to the company, a lot of people were involved in facing criminal liability or charges for hindering the investigation. For example, one individual was accused of deleting emails relating to the investigation.
Another incident from the United States deals with the Queen of the North which is a Swedish flag vessel. The ferry vessel ran aground, sank and two people died. Vessel’s navigating officer charged with two counts of criminal negligence causing death. The interesting thing here is that charged specifically with breach of Canadian Collision Regulations enacted under the Canada Shipping Act 2001, which implement and modify the COLREGS. Following jury trial, navigating officer was convicted and sentenced to 4 years in prison. Separate from criminal prosecution, sinking also caused spill of diesel fuel and lubricating oil, much of which was contained. Consequently, Canadian Environment Minister required Owner, BC Ferries and Canada Coast Guard to draft plan to ensure sunken vessel would not result in further unintended releases of oil.
The M/V Sewol, a very tragic incident from South Korea, involved huge loss of life as well as huge media coverage in South Korea. It also had large political ramifications and again similarly to the BP incident, this was not just limited to the captain. Many people were also accused; the criminal liability was very wide ranging from the C/E, crew members and CEO who tried separately, to port inspector, Cargo Company and senior ship inspector. On appeal, the captain found guilty of “willfully negligent homicide” and sentenced to life.
One infamous incident in the Mediterranean region is that of Costa Concordia in which 32 people died. The master of Costa Concordia navigated too close to island off W. coast of Italy. Vessel ran aground, hull flooded, drifted and grounded on island. Captain convicted on multiple counts of manslaughter, causing a maritime disaster, abandoning ship, and providing false information to Italian port authorities and he was sentenced for 16 years. Also five Costa employees pleaded guilty.
The following cases have criminal liabilities stemming from MARPOL: MV Rena, a Greek-owned vessel that grounded in New Zealand, spilled oil in the Astrolabe Reef; criminal sentences followed, the master and second officer sentenced to 7 months in prison. In 2009, the MV Full City ran aground in Norwegian waters, causing bunker oil spill. The master of the bulk carrier owned and operated by COSCO was convicted, but sentence commuted to probation; Third Officer acquitted on appeal. In Asia, we have the Hebei Spirit in which a crane barge being towed by tugs broke free and collided with the vessel. Captain and Chief Officer from the Hebei Spirit, two tug masters, and the barge captain charged with criminal negligence and causing marine pollution. Defendants convicted of criminal negligence and marine pollution. This is considered as a large diplomatic incident because it attracted the attention of many seafaring organizations regarding the treatment of the Indonesian crew.
In the United States we have several criminal cases most of them stemming from MARPOL, around 10-12 criminal MARPOL cases per year. A couple safety related prosecutions occurred in US v. Noble Drilling, again a primarily environmental issue, but the focus was shed to the failure to report the casualty. Specifically, there were charges for knowingly and willfully failing to notify the U.S. Coast Guard of hazardous conditions aboard the drill ship Noble Discoverer.
The US Coast Guard recently issued a NVIC relevant to all vessels trading to the United States with the intent to provide guidance and clear policy as to the Coast Guard’s expectations to facilitate compliance. Before that guidance, there was confusion as to whether certain marine casualties need to be reported or something is a casualty. The NVIC states what should be reported and how. The industry worked with the Coast Guard to request this clarification and it was issued in July 2015. The main advice is if there is any doubt, contact with the Coast Guard. You may contact not necessarily to report a casualty bur also to discuss whether something is considered as a casualty and clarify the existing guidance. If there is any doubt, the notification is a first step and then if it is necessary, you may report the case within five dates. The reports must be made immediately after addressing resultant safety concerns to the nearest Coast Guard Sector if the casualty occurred within 12 miles. The oral report must be followed by a written report a “Report of Marine Accident, Injury or Death” (CG-2692) Form within 5 days.
So, the question here is: can safety violations be considered as the new ‘’magic pipe’’? Are we looking at the new MARPOL prosecutions relating to safety? Well, I don’t think we are. I don’t think the above mentioned prosecutions were purely safety-related, safety and environment are not separated issues. Regarding risk management, most vessels have a vessel response plan but, in our experience very few companies have a management response plan which intends to offer guidance to shore based crew in case of a casualty. When a casualty occurs, the first most important thing for the company is not to lose time. Therefore, it is important for the corporate level to understand what to do not only on the vessel. Apart from having a management response plan, companies should be also having counselors. To sum up, safety is an important consideration even though we are not seeing prosecutions in the same level that we are for the MARPOL cases. I don’t think we will changes at IMO and then subsequently in the US Congress or other places around the world. It is still a very important aspect in terms of defending a company from liability as well is any short of related safety violations.
The views presented hereabove are only those of the author and not necessarily those of SAFETY4SEA and are for information sharing and discussion purposes only.
Stefanos N. Roulakis, Attorney, Blank Rome
Stefanos Roulakis concentrates his practice on maritime law. He counsels clients on a wide range of regulatory and criminal matters, including international and domestic environmental standards, cabotage requirements, customs requirements and international trade. Mr. Roulakis was a Fulbright Scholar in Turkey where he worked at the Ecumenical Patriarchate and is fluent in Greek and Turkish.