Criminal spill penalties worry mariners

Oil tanker operators have warned that expanding criminal liabilities for oil spills could worsen the prospects for response efforts.

Tanker operators also are concerned that any accident caused by simple negligence will become a potentially criminal violation.

Capt. Malcolm Williams, chief of the U.S. Coast Guard's office of maritime law, recently testified before a House transportation subcommittee about his agency's revised "instruction" regarding criminal liability.

He denied that the Coast Guard's July 30, 1997, guidelines on criminal enforcement for spills significantly changed its enforcement attitude.

Capt. Williams said the guidelines call for criminal prosecution only if there has been "significant environmental harm resulting from the violation and culpable conduct on the part of persons or companies involved."

He said culpable conduct could include "a history of repeated violations, knowledge of the illegality of the conduct, deliberate misconduct, concealing misconduct, or other illegal activity."

But he added that only civil penalties will be sought in most pollution cases.

He said that, between July 30, 1997, when the instruction was published, and Mar. 30, 1998, the Coast Guard investigated 8,357 pollution cases, issued tickets in 2,010 cases, and referred 288 to a hearing officer for civil penalty action.

"While none of these cases has been referred for criminal prosecution, there are about 10 cases that are under investigation as potential criminal cases," Williams said.

Operators' views

He said the Coast Guard's instruction clearly states that, in the event of a spill, mariners "could be convicted and sentenced to a criminal fine even where (they) took all reasonable precautions to avoid the discharge."

Lane said, "Increased criminalization of oil spill incidents introduces uncertainty into the response effort by discouraging full and open communication and cooperation, and leaves vessel owners and operators criminally vulnerable for response actions taken in an effort to 'do the right thing.'"

Gary Robson, a captain with Maritrans Inc., Philadelphia, said, "Strict criminal liability does not make me do my job better; it only produces counterproductive stress. The sense that I have is that a mariner is less criminally liable if he kills someone out there than if he spills oil."

James Henry, president of the Transportation Institute, said, "Individuals who are trying their best to comply with the high standards imposed on marine transport operators should not have to face the prospect of jail with no consideration of whether their conduct warranted such a penalty."

Eklof's spill

Eklof said his company responded quickly to the accident and pushed to recover more than 3 million gal of fuel oil from the sunken barge, reducing further pollution.

He said, despite his firm's excellent safety record and quick response, the government launched a criminal investigation, which "is not difficult to do in the case of most any environmental violation, due to the minimal standard of intent required to prove criminal behavior."

As a result, Eklof and its employees entered guilty pleas to criminal charges with fines totaling $8.5 million, in addition to $20 million paid for cleanup and third-party damages.

He said that, had he known that the government would criminally prosecute the company and its employees "based on information provided during our response effort, we might not have laid ourselves open to the government to the degree that we did.

"I am not even certain that we would have allowed so many of our people to remain at the scene, much less communicate openly with government representatives, absent the presence of (our) defense counsel."

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