Red Sky in Morning: Seventh Circuit Reverses Seaman’s Manslaughter Convictions

Mainbrace | January 2017 (No. 1)

Gregory F. Linsin and Emma C. Jones

A December 2016 United States Court of Appeals decision highlights a recent, troubling trend of aggressive criminal prosecution of vessel owners and crew members following marine casualties involving a fatality. In a remarkable opinion, the Seventh Circuit in United States v. Egan Marine Corp. overturned the criminal convictions of a tug owner and the tug’s master for violation of 18 U.S.C.A. § 1115, colloquially referred to as the “Seaman’s Manslaughter statute.” Nos. 15-2477 & 15-2485, 2016 WL 7187386 (7th Cir. Dec. 12, 2016).1

The prosecution stemmed from a casualty involving an explosion on board a slurry oil barge underway between Joliet and Chicago, Illinois. The casualty resulted in the death of a deckhand and a subsequent oil discharge. The government initially filed a civil suit against the tug owner, Egan Marine, seeking damages on the grounds that Egan Marine and its employees were grossly negligent and/or violated a safety regulation such that Egan Marine should not be able to limit its liability for the oil discharge pursuant to OPA 90. The crux of the government’s factual allegations in the civil suit was that the master had acted in a grossly negligent manner by directing the decedent to warm up a pump using a propane torch, and that the flame had caused the explosion and the subsequent discharge of oil. United States v. Egan Marine Corp., No. 08 C 3160, 2011 WL 8144393 (N. D. Ill. Oct. 13, 2011). Following a bench trial, the district court judge found that the government had failed to prove, by a preponderance of the evidence, that the deceased crew member was using a propane torch on the cargo pump of the vessel at the time of the incident, and thus the court allowed Egan Marine to limit its liability.2 Id. at *3. The government did not appeal from that adverse decision.

The Criminal Case

Two years after the civil case concluded and six days before the statute of limitations would have run, the government made the surprising decision to file criminal charges under the Seaman’s Manslaughter statute against Egan Marine, together with the master of the tug, who had not been a party in the civil case. Each defendant was charged with a violation of the statute through misconduct and negligence based on the same factual allegation that was at the core of the prior civil suit (i.e., the use of a propane torch on the deck of the tank barge had caused the explosion and led to the death of the crew member). Both defendants were also charged with a negligent violation of the Clean Water Act. Following a bench trial, the district court judge found both the master and Egan Marine guilty. The master was sentenced to six months’ imprisonment and a one-year supervised release, Egan Marine was placed on probation for three years, and the two were held to be jointly and severally responsible for restitution in the amount of nearly $6.75 million. Nos. 15-2477 & 15-2485, 2016 WL 7187386.

The Seaman’s Manslaughter statute criminally penalizes simple negligence, which requires only proof of a breach of duty. The statute does not require the government to prove “criminal negligence,” which is defined as gross negligence or “heat of passion,” which require proof of a “wanton or reckless disregard for human life.”3 United States v. O’Keefe, 426 F.3d 274, 279 (5th Cir. 2005).

On appeal, both Egan Marine and the master argued that their criminal prosecution should have been barred based on the doctrine of issue preclusion or collateral estoppel, asserting that the government should not be allowed to file criminal charges based on allegations that the master had ordered the deceased crew member to use a propane torch on the cargo pump after the government had failed to prove that key fact in the prior civil action. The Court of Appeals agreed with the defendants’ position that the criminal charges were precluded based on the factual findings and the judgment in the prior civil action. This was true even for the master who had not been named in the civil case because the claim in the civil action was that the owner was vicariously liable for the master’s conduct, and when a court rejects a claim of vicarious liability based on a worker’s conduct, the worker is as much entitled to the benefit of that judgment as is the employer. 2016 WL 7187386 at *3 (citing cases). The Court of Appeals reversed the convictions and remanded the case for entry of judgments of acquittal.

The criminal prosecution in Egan Marine is the latest example of the aggressive pursuit of felony criminal charges in the wake of marine casualties involving fatalities, even though the filing of such charges pushes beyond the boundaries of prudent statutory interpretation or the reasonable exercise of prosecutorial discretion.

The Resurgence of the Seaman’s Manslaughter Statute
This disturbing tendency was also evident in the charging decisions made by federal prosecutors following the Deepwater Horizon disaster in 2010, in which 11 rig employees died. In that case, the prosecutors hedged their bets and filed 22 felony charges against the two mobile offshore drilling unit “well site leaders,” 11 counts based on alleged violations of the Seaman’s Manslaughter statute, and 11 counts based on alleged violations of the involuntary manslaughter statute, which requires proof of gross negligence. In that case, the district court judge granted the defendants’ pre-trial motion to dismiss the 11 Seaman’s Manslaughter counts, based on the finding that the well site leaders were not within the class of persons to whom the statute applied because they were not responsible for marine functions on board the vessel. See United States v. Kaluza, Criminal Action No. 12-265, 2013 WL 6490341, at *18-28 (E.D. La. 2013) aff’d 780 F. 3d 647 (5th Cir. 2015). Following the dismissal of those 11 counts and the affirmance of that decision on appeal, the prosecutors made the decision voluntarily to dismiss the 11 remaining involuntary manslaughter counts, which would have required proof of gross negligence, notwithstanding the fact that there had been no intervening change in the underlying facts of the case.

In a similar case, following an explosion caused by a welding accident aboard an offshore oil platform that resulted in the deaths of three workers, federal prosecutors filed involuntary manslaughter charges against Black Elk Energy Offshore Operations, LLC, the platform owner and operator, and a construction company that was performing maintenance work on the platform as an independent contractor. However, the government also filed felony criminal charges against the owner/operator, the two independent contractors, and three employees of independent contractors for violations of the safety regulations promulgated under the Outer Continental Shelf Land Act (“OCSLA”). The independent contractor defendants challenged this novel application of the OCSLA regulations, and the district court granted their pre-trial motion to dismiss the OCSLA counts against the independent contractor defendants based on the determination that the OCSLA regulations do not apply to independent contractors. United States v. Black Elk Energy Offshore Operations, LLC, 5-cr-197, 2016 WL 1458925 (E.D. La. April 14, 2016). The court found that because the defendant contractors had not been designated as agents of the owner and operator of the platform, they could not be charged with criminal liability under OCSLA. Id. at *4.4

Even though the district courts in Kaluza and Black Elk Energy and the Court of Appeals in Egan Marine ultimately entered orders dismissing felony criminal charges that had been improvidently filed against corporate and individual defendants, that fact is a cold comfort to the defendants who were forced to endure the ordeal and expense of a federal criminal prosecution. While the courts to date have been unwilling to expand the application of the Seaman’s Manslaughter statute or other maritime regulations imposing criminal liability such as OCSLA, the fact remains that vessel owners, charterers, and crew members are at real risk of facing federal criminal charges when a fatality occurs as a result of a maritime casualty. This risk should inform the actions of owners, charterers, and shipboard officers from the moment a casualty involving a fatality occurs—from minute one, not just day one. Every response plan for a casualty involving a fatality should include clear guidance to shoreside and shipboard personnel with respect to a range of action points, including:

  • the management of the scene and all related communications systems in a manner designed to preserve information;
  • the immediate engagement of experienced criminal defense counsel to conduct a thorough post-casualty investigation and to serve as the primary point of contact with all government investigators;
  • the determination of whether any individual employees or ship’s officers may be considered subjects of the criminal investigation; and
  • the careful advisement of all relevant employees, officers, and crew members regarding their rights and responsibilities in connection with the ensuing investigation.

In sum, all segments of the maritime industry should be mindful of the significant criminal enforcement risks that exist following a maritime casualty involving a fatality. Federal prosecutors have demonstrated a clear willingness to push the prosecutorial envelope in such cases. Sailors should take warning.

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