US Bodily Injury News November 2011 Round Table 2011 highlights
continued: Criminal investigation Greg Linsin, Partner of Blank Rome in Washington D.C. gave a criminal defense lawyer’s perspective on an investigation of a maritime casualty.
Criminal liability exists for negligent conduct
Greg Linsin Blank Rome LLP
Criminal issues arise rapidly
What could initially appear as a maritime civil case can sometimes quickly turn into a criminal investigation by the U.S. Coast Guard or other Federal, State or local authorities. Members should always anticipate the possibility of a criminal investigation (and potential criminal prosecution), especially on marine casualties involving death and/or significant pollution. Information obtained by and statements made to the U.S. Coast Guard inspectors or an Investigating Officer will be provided to and are useable by criminal investigators.
Whether or not criminal investigators are present on the ship, the Member can be confident that those investigators will receive all of the results of the administrative investigations. If there is a criminal investigation it will most likely be led by the Coast Guard Investigative Service and will be closely monitored by the Department of Justice. It is possible the ship’s customs clearance will be withheld and some officers or crewmembers may be asked to remain in port. Grand jury subpoenas for documents, testimony and possibly ship’s equipment could be issued. Ultimately, the Department of Justice will determine whether to file criminal charges and which companies or individuals will be charged.
There are various United States statutes that criminalize what could otherwise be viewed as negligent conduct. For instance, under the Seaman’s Manslaughter Statute (18 U.S.C. Section 1115) it is a crime for a ship’s officer, crewmember, owner, operator or manager to cause the death of another person through misconduct, negligence or inattention to duty. (See page 8 for summary of cases). As noted, the government need only prove simple negligence, i.e., a failure to do what a person of ordinary prudence would do under the circumstances. This crime is a felony and conviction can result in a ten year prison sentence.
Under the Unseaworthiness Statute (46 U.S.C. Section 10908) it is a crime to knowingly send a ship to sea in an unseaworthy state that is likely to endanger the life of another. There are other criminal statutes as well, but these two examples illustrate that Members (and their employees) must be cognizant of possible criminal consequences of their operations.
Post-incident conduct can negatively affect government view of the company
Post-incident conduct is scrutinized closely. If there is also evidence of (1) post-incident false statements, (2) alteration or concealment of evidence or (3) obstruction of justice that evidence will influence the evaluation of the entire incident for possible criminal prosecution. The stakes are high: a criminal case could result in a significant fine for the company or a potential loss of liberty for the shipboard and shore side personnel.
Evidence of false statement and obstructive post- incident conduct will negatively impact a government investigator’s view of the company’s knowledge, motives and intentions in connection with the casualty.
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