1. That’s a Criminal Offense? Survey of Maritime Criminal Statutes PRESENTED BY B. Jason Barlow Troutman Sanders LLP 150 West Main Street Suite 1600 Norfolk, VA 23510 757.687.7515 jason.barlow@troutmansanders.com

2. That’s a Criminal Offense? Introduction Enforcement Examples Survey of Maritime Criminal Statutes Conclusions

3. Introduction: Criminalization of Maritime Activities Vessel operators criminally liable for both intentional and unintentional activities Criminal maritime statutes aren’t new. Aggressive enforcement is. Exxon Valdez – A catalyst for increased prosecutions seeking substantial fines and imprisonment against: Ship-Operating Corporations Corporate Officers Ship’s Officers

4. That’s a Criminal Offense? Enforcement Examples E XXON V ALDEZ (1989) Master: $50,000 and sentenced to 1,000 hours of community service Exxon Corporation: $150 million fine Z IM M EXICO III (1996) Master: 11 months in prison N ORDIC E MPRESS (1999) Royal Caribbean: $18 million fine

5. That’s a Criminal Offense? Enforcement Examples M/V L IHUE (2000) Vessel operator: $3 million fine M/V K HANA (2002) Master: 6 months in prison Chief Engineer: 8 months in prison S/S N ORWAY (2002) Norwegian Cruise Lines: $1.5 million fine No lesson learned: $500,000 fine in 2008

6. That’s a Criminal Offense? Enforcement Examples S/S J UNEAU (2004) Sabine Transportation: $2 million fine CEO: 33 months in prison M/V Rotterdam (1998-2004) – VP of Compliance – Holland America Line: 450 hours of community service; $10,000 fine; 3 years probation Director of Techinal Operations and 2 nd Engineers: $10,000 fine; 2 years probation

7. That’s a Criminal Offense? Enforcement Examples Not just the big guys: M/G Transport Services (1997) ºVice President: 180 days house arrest; $23,500 fine; 3 years probation ºCaptains: 4 months house arrest; $2,000- $4,000 fine; 30 month probation McKinney Towing(2001) ºVice President: 6 months house arrest; $2,000 fine

8. “How are they going to catch us?” Coast Guard Boarding/Inspections Crewmember Whistle-Blowing Casualties

9. “As a corporate officer, I can’t be convicted for a crewmember’s actions!” WRONG Statutes provide for corporate officer liability Jurisprudential theories possibly impose liability ºInferred knowledge ºWillful blindness ºResponsible corporate officer

10. “As a ship’s officer, I can’t be held responsible for a crewmembers actions!” WRONG Trend to hold masters and chief engineers criminally responsible

11. That’s a Criminal Offense? Four Key Categories Many federal criminal statutes that relate to maritime activities Four Major Categories: Seamanship Investigation/Honesty Miscellaneous Crimes - Maritime Jurisdiction Environmental/Pollution

12. Seamanship General Safety Regulations Unseaworthy Vessels Incompetent Operators Negligent/Grossly Negligent Operation Seaman’s Manslaughter Statute Navigation Duties

13. Honesty/Investigation False Distress Signals False Statements Act False Claims Act Foreign Corrupt Practices Act

14. Miscellaneous Crimes - Maritime Jurisdiction 18 U.S.C. § 11Assaulting, resulting or impeding a federal officer engaged in or on account of the performance of official duties. 18 U.S.C. § 81Arson in a maritime jurisdiction. 18 U.S.C. § 113Assault in a maritime jurisdiction. 18 U.S.C. § 114Maiming in a maritime jurisdiction. 18 U.S.C. § 371Conspiracy to commit an offense or to defraud the United States. 18 U.S.C. § 545Smuggling goods into the United States. 18 U.S.C. § 660Theft or possession of stolen property from a carrier. 18 U.S.C. § 661Theft of personal property of another. 18 U.S.C. § 662Receiving stolen property of another. 18 U.S.C. § 1001Falsifying statement or entries required by a federal agency or department. 18 U.S.C. § 1025Fraud on the high seas or on a U.S. vessel. 18 U.S.C. § 1111Murder. 18 U.S.C. § 1112Manslaughter. 18 U.S.C. § 1113Attempted murder or manslaughter. 18 U.S.C. § 1115Misconduct or negligence of ship officers resulting in death.

15. Miscellaneous Crimes - Maritime Jurisdiction 18 U.S.C. § 1341Mail fraud. 18 U.S.C. § 1343Wire fraud. 18 U.S.C. § 1503Influencing the due administration of justice. 18 U.S.C. § 1505Obstruction of agency proceedings. 18 U.S.C. § 1510Bribery to obstruct a criminal investigation. 18 U.S.C. § 1511Obstruction of state or local law enforcement. 18 U.S.C. § 1512Witness tampering. 18 U.S.C. § 1513Retaliation against a witness, victim or informant. 18 U.S.C. § 1621Perjury. 18 U.S.C. § 1622Suborning perjury. 18 U.S.C. § 2191Cruelty by master or other officer to member of crew of United States vessel. 19 U.S.C. § 70Master of vessel obstructing a customs officer board to enforce revenue or navigation laws. 19 U.S.C. § 1581(d)Failure to stop on command of an officer of customs. 33 U.S.C. § 411Wrongful deposit of refuse, injury to harbor improvements or obstruction of navigable waters. 46 U.S.C. § 60601Violation of regulations regarding Customs boarding.

16. Miscellaneous Crimes - Maritime Jurisdiction 46 U.S.C. § 12133(c)Production of Vessel License or Enrollment. 46 U.S.C. § App. 324Obstructing officer enforcing licensing or documentation laws. 46 U.S.C. §56101(e)Unauthorized Charter or Transfer of Ownership of U.S. Documented Vessel to Alien. 46 U.S.C. § 2303Master of a vessel involved in a marine casualty must render assistance to affected individuals and identify himself and his vessel. 46 U.S.C. § 2304Master of a vessel must render assistance to any individual found at sea “in danger of being lost” so far as can do so “without serious danger to the master’s vessel or individuals on board.” 46 U.S.C. § 3318(c)Felony for unlawful altering lifesaving devices. 46 U.S.C. § 3318(d)Derange or hinder operation of boiler safety devices. 46 U.S.C. § 3318(f)Fraudulent marking of safety devices. 46 U.S.C. § 3718Willful and knowing violation of dangerous cargo statutes and regulations. 46 U.S.C. § 4311Willfully operating vessel in violation of Recreational Vessels Safety Act. 46 U.S.C. § 4507(d)Owner, charterer, master, etc. of a vessel operated in violation of the Uninspected Commercial Fishery Industry Vessels Act 46 U.S.C. § 5116(d)Person allowing departure of a vessel in violation of a load line detention order. 46 U.S.C. § 5116(e)Causes or allows unlawful modification or removal of a load line mark. 46 U.S.C. § 8503(e)Coerce a witness, induce or give false testimony in connection with investigation of a marine casualty. 46 U.S.C. § 12309(a)Violation of the chapter regarding numbering of undocumented vessels. 46 U.S.C. § 12507(a)Providing false information regarding identification of vessels and ownership in connection with the federal vessel identification system.

17. Environmental/Pollution Federal Water Pollution Control Act (“Clean Water Act”) Oil Pollution Act of 1990 (“OPA 90”) Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) Act to Prevent Pollution from Ships Refuse Act Marine Protection, Research and Sanctuaries Act (“Ocean Dumping Act”) Ports and Waterways Safety Act Migratory Birds Treaties Act

18. Conclusions MANY maritime criminal statutes High fines Substantial prison sentences Liability for crewmembers, companies and corporate officers Odds of getting caught are high The statutes aren’t new, but aggressive enforcement is Enforcement moving up the corporate chain