# Presentation: 367109

## NATIONAL TRANSPORTATION SAFETY BOARDTransportation Safety and the Law Symposium 

- H. Merritt Lane, III
- President & CEO
- Canal Barge Company, Inc.
- April 26, 2000

## CANAL BARGE COMPANY, INC.

- Headquartered in New Orleans;
- Founded in 1933;
- 24 manned vessels, 530 barges;
- Privately owned, independent marine transportation company;
- One of the larger inland tank barge operators.

## The Problem

- Accidental marine pollution incidents are increasingly the subject of criminal investigations.

## Strict Criminal Liability

- Because of no fault pollution laws....
- There remains no way to avoid criminal liability regardless of how diligently an operator attempts to adhere to prudent practice and safe environmental standards.

## Negative Effect on Safety

- The excessive threat of criminal liability in the aftermath of oil spills negatively affects transportation safety and hinders accident investigation and oil spill response.

## OPA 90

- Carefully balances the impositions of stronger criminal and civil penalties with the need to promote enhanced cooperation among those parties responding to oil spills.

## OPA 90’s Impact 

- Fleet modernization;
- Improved operating procedures;
- Crew training;
- Emergency response training.

*Resulting in fewer oil spills.*

## “Catch - 22”

- Per the USCG’s environmental enforcement directive,                                                                                                         “*company officers and employees could be convicted and sentenced criminally even where [they] took all reasonable precautions to avoid the discharge*.”

## Strict Criminal Liability

- Refuse Act of 1899
- Requires proof that oil has entered the water.
- Migratory Bird Treaty Act of 1918
- Requires proof that a migratory bird died.

** *Neither law was intended to be used in *
* **connection with navigational accidents.*
***Neither law was incorporated into OPA 90.*

## USCG Commandant’s Instruction

-  “*The decision to commit necessary Coast Guard resources to obtain evidence that will support a criminal prosecution must often be made in the very early stages of a pollution event*.”

## The Dilemma

- Risk incriminating oneself by cooperating per OPA 90’s mandate or follow criminal defense attorney’s mandate not to cooperate for fear of self incrimination.

## “Chilling Effect”

- The Master of the NEW CARISSA refused to testify before the Coast Guard Board of Inquiry because of fear of possible criminal liability                                   *“... bringing seven days of hearings to a halt, with key questions unresolved.”*

## Coast Guard Position

- The Coast Guard Commandant has confirmed the agency’s enforcement policy on criminal prosecution as being reserved for the _most egregious_ cases and where _traditional notions_ of what constitutes a crime has occurred.

## Growing Pressure to Prosecute

- Today, the Justice Department and state enforcement agencies might get involved directly with the investigation ... without the Coast Guard or NTSB’s recommendation.

## The Threat ofCriminal Liability

- Discourages responsible companies and qualified mariners from engaging in the transport of oil products and other hazardous cargoes.

## Negative Effect on Safety

- In a recent Congressional hearing, a tanker captain testified that                “*the Master, Officers and Crew of tank vessels should be the best in the business and, in fact, I think they are ...  If they are driven from this area by criminal enforcement policies, we will end up with mediocrity where we should have excellence*.”

## The New Paradigm

- The lines are blurred between unfortunate accidents and criminal behavior ... so be prepared to deal with the threat of criminal liability in the aftermath of any marine pollution incident.

## Criminal Liability Action Plan

- Engage criminal defense counsel;
- Prepare to hire separate counsel for employees;
- Understand the differences between civil and criminal proceedings;
- Consider criminal liability when making decisions in the aftermath of an oil spill.

## CBC’s Response Plan

- Cooperate with the Government in regard to reporting, containing and cleaning up the spill to the greatest extent possible.
- Attempt to cooperate with Coast Guard and NTSB efforts to study the cause of an incident giving full consideration to liability issues.

## Questions Remain ...

- What should we tell our employees?
- How much crew and shoreside staff training is required?
- How do you know when full cooperation is the best course of action?  i.e., how do you read prosecutorial intent?

## The Threat of  Criminal Liability

- Because of no fault pollution laws ....
- Responsible parties may be cooperating unwittingly with the very authorities that might be conducting a criminal investigation.

## Conclusion

-   Unavoidable exposure to criminal liability undermines the very objectives of cooperative, coordinated spill management envisioned in OPA 90 and _does not_ serve the public’s best interest.