1. Maritime Casualties: From Negligence to Strict Liability to Criminalization -- U.S. Perspective Fajardo, Puerto Rico October 31, 2013 Joe Walsh Seattle San Francisco Anchorage Long Beach Hong Kong

2. Maritime Casualties: Ghostly Mistakes, Spooky Prosecutions, and other Environmental Horror Stories Fajardo, Puerto Rico October 31, 2013 Joe Walsh Seattle San Francisco Anchorage Long Beach Hong Kong

3. MARPOL & US LAW AnnexTopicUS LAW IOilAPPS 33USC1901, CWA, FWPCA, OPA IINoxious Bulk LiquidAPPS, CERCLA, Ocean Dumping Act IIIHazardous FreightAPPS, CERCLA, HMTA, IMDG IVSewageNot A party ( * Refuse Act) VGarbage/plasticsAPPS, Ocean Dumping Act, Marine Plastic Pollution Research & Control Act VIAir EmissionsAPPS, Clean Air Act

4. Objectives Criminal Enforcement of Accidents: Concepts & Flaws Response & Investigation Considerations

5. “It is difficult to get a person to understand something if his salary depends on him not understanding it.” Upton Sinclair

6. Criminal Enforcement Concepts CIVIL LAWCRIMINAL LAW  Strict Liability  Negligence  Actus rea  Mens rea  Comparative  Superseding cause  Intervening cause

7. United States v. Hanousek  Simple Negligence = Criminal Negligence  1% the cause = 100% Criminally Negligent  Justice Thomas’ Dissent  Public Welfare Statutes – “penalties commonly are relatively small, and conviction does no grave damage to an offender’s reputation.”  Justice Thomas & O’Conner  “Whether the CWA is appropriately characterized as a public welfare statute is an issue on which the Courts of Appeals are divided.”

8. Criminal Enforcement Concepts STRICT LIABILITY Refuse Act Migratory Bird Treaty Act NEGLIGENT LIABILITY Clean Water Act

9. “penalties are relatively small…”

10.  Forfeiture?  National Marine Sanctuary Act  National Park System Resource Protection Act

11. “no grave damage to… reputation”  Suspension and Debarment?  Discretionary  Mandatory ( CWA)  Stigma?

12. Vicarious Liability Concepts

13. Vicarious Liability Concepts (Everyone has a Homer Simpson)

14. Objectives Criminal Enforcement of Accidents: Concepts & Flaws Response & Investigation Considerations

15.  Understanding and Accepting the Engagement  Avoiding the Risk of Disqualification  Timely Appointment of and Dealing with Individual and Pool Counsel  Interacting With Investigative Authorities.

16. Representation  Who is your client?  “Vessel Interests”  Owner, Managers, Operator, Candle- stick Maker  Club or Member?  Multiparty Representation  The Significance of Upjohn Warnings

17. Avoiding Disqualification  Lawyer vs. Witness  Use of surveyors, consultants and experts  Kovel Doctrine  United States v. Kovel, 296 F.2d 918 (2 nd Cir 1961)  United States v. Adlman, 68 F.3d 1495 (2 nd Cir. 1995)

18. Individual and Pool Counsel  Timely appointment is critical!  Letters of Representation  Pool Counsel → Waivers  Have a “deep” bench  Joint Defense/Common Interest Agreements  potential or actual litigation  joint defense communication privilege

19. Investigative Authorities  14 USC § 89a  authorizes the U.S. Coast Guard to board vessels subject to the jurisdiction of the United States,  anytime, any place upon the high seas and upon any waterway over which the United States has jurisdiction,  to make inquires, examinations, inspections, searches, seizures, and arrests.  The U.S. Coast Guard does not require a warrant to conduct search, seizures, arrests over any United States Waterway or high seas.

20. Whistleblowers “In the discretion of the Court, an amount equal to not more than ½ of such fine may be paid to the person giving information leading to conviction.” 33 USC 1908(a) (APPS)

21.  Seemingly Endless Port State Control Exams  Real Party in Interest status (CG-545 Policy Letter 3-10 )  Right to counsel is NOT obstruction threat of obstruction-- Really? Investigative Authorities

22. “Being in a ship is being in a jail, with the chance of being drowned” Samuel Johnson