US Bodily Injury News November 2011
captain was the only one wearing a life jacket. He was sentenced to six years imprisonment upon the judge’s finding that he acted recklessly in entering the restricted zone and failing to ensure that his passengers were wearing life jackets. The captain appealed his sentence and the United States Court of Appeals for the Ninth Circuit reduced his sentence to four years and three months imprisonment.
Staten Island Ferry Incident [U.S. v. Smith] (2004) Pilot and director of ferry operations each pled guilty to violating the SMS in connection with the allision of the Andrew Barberi with a concrete maintenance pier, killing 11 people and injuring 73 others. The pilot pled guilty to 11 counts of seaman’s manslaughter and making a false statement to the government. He admitted that he was overly tired, taking painkillers, and in such pain he was not in the proper physical condition to operate the vessel. He was sentenced to 18 months in prison. The director of ferry operations pled guilty to one count of manslaughter stemming from his failure to ensure that the vessel was in the control of a qualified pilot and to enforce the two-pilot rule, which required that two pilots be in the pilothouse during docking operations. He was sentenced to one year in prison. The captain, port captain, and pilot’s physician were also indicted on other charges stemming from false statements made to the government.
United States v. Shore (2004) Captain and first mate pled guilty to violating the SMS in connection with the death of an underage woman on a booze cruise. 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 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.
United States v. O’Keefe (2004) Cocaine-impaired tugboat pilot, who caused an accident resulting in the sinking of the vessel and the death of his ex-wife, was convicted of violating the SMS. The pilot was 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.
United States v. Mitlof (2001, aff’d 2d Cir. 2004) Owner and captain of a water taxi, which capsized, killing one passenger, were convicted of conspiracy, manslaughter, and wire fraud.Th
e owner had allowed the vessel to operate with numerous mechanical and structural deficiencies and did not have the required Coast Guard Certificate of Inspection, despite the owner’s knowledge that it needed one.
United States v. Fei (2000) Mastermind of a human smuggling scheme, who endeavored to smuggle 298 Chinese aliens aboard the Golden Venture into New York, pled guilty to violating the SMS in connection with the death of six people aboard the ship, among other charges. When Fei’s plan to send small vessels to disembark the passengers fell through, he ordered the ship to ground in NY, which resulted in ten people drowning while trying to swim ashore. Fei’s plea followed a worldwide manhunt and a subsequent extradition battle; he was sentenced to 20 years in prison.
We are indebted to the assistance and expertise of Michael Fernandez of Freehill, Hogan & Mahar in New York, Gary Hemphill of Phelps Dunbar in New Orleans and Greg Linsin of Blank Rome in Washington DC whose hard work in collaboration with the Bodily Injury Team made our Round Table event such a huge success. It is impossible to give more than a glimpse of the issues and materials covered over the two days of the event in the pages of this newsletter.
However, if you would like to learn more about these topics as they were presented in the Round Table please do not hesitate to contact Mike Fernandez (firstname.lastname@example.org
) or Greg Linsin (email@example.com
If you have any suggestions of issues the Round Table of 2012 can address then please let us know. Member feedback and input is paramount in setting the agenda for these events.
Louise Livingston For the Bodily Injury Team
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