Proving Corporate Criminal Liability for Negligence in Vessel Management and Operations : An Allision-Oil Spill Case Study

Maritime policy analysts often invoke the 'vessel safety net' metaphor to explain the independent but overlapping risk management roles and responsibilities of the vessel master and crew, owner and charterer, operating company, classification society, flag state and port states. Oil spills from the 2002 M/T Prestige break up off the coast of Galicia, Spain, the 2007 M/V Cosco Busan bridge allision in San Francisco Bay and the 2010 Deepwater Horizon debacle in the Gulf of Mexico, among others, demonstrate that any or all of the components of that safety net may come under scrutiny following a marine casualty, possibly leading to civil and even criminal liability.It now seems clear that criminal liability for the harm caused by a marine casualty can extend beyond those on board the vessels who might have been guilty of 'operational negligence.' This article examines one particular aspect of the emerging development: the potential criminal liability of the vessel owner or operator, typically a corporation, for a discharge of oil in violation of the Clean Water Act. Recent cases have demonstrated that the owner's or operator's criminal liability may be based on either vicarious liability for the criminal acts of a mariner employed by the owner or operator or on a direct liability theory. Civil liability based on vicarious liability is nothing new. But vicarious criminal liability remains somewhat controversial. However, because vicarious criminal liability - if permitted under the governing law - is relatively easy to establish, this article will only briefly examine the duties relevant to a vicarious liability theory before turning to the alternative direct liability theory for what some refer to as 'negligent management.' It does so by examining the possible means by which the direct criminal liability of the operator of the Cosco Busan might have been established if the operator had not pled guilty and the case had gone to trial