In a question of venue, the Court of Appeals for the Sixth Circuit recently held that a violation of the Ports and Waterways Safety Act − failure to report immediately a hazardous condition to the nearest Coast Guard office − is a continuing offence and venue is proper in any district in which such offence began, continued or is completed.(1)
In this case a barge carrying 400,000 gallons of benzene down the Mississippi River sprang a leak near St Louis, Missouri. When the leak was discovered, the pilot of the barge's towboat instructed deckhands to seal the leak by rubbing a bar of soap over the crack. Immediately thereafter, the port captain also issued instructions to apply a temporary epoxy patch. Although the leak was temporarily secured, the Coast Guard was never notified of the hazardous condition.(2)
Four days later, while the barge continued up the Ohio River to its final destination in Catlettsburg, Kentucky, the temporarily epoxy patch failed and the captain of the towboat notified the leak to the coastguard office in Louisville, Kentucky.
The government, after identifying the barge's failure to notify the coastguard immediately after the leak was discovered in St Louis, Missouri, filed a three-count indictment in the Western District of Kentucky charging the owner of the barge and its employees (the defendants) with:
- conspiracy to violate the Ports and Waterways Safety Act;
- violation of the act; and
- negligent violation of the Clean Water Act.
The jury only returned a guilty verdict on the second count (violation of the Ports and Waterways Safety Act), finding that the defendants violated the act because they knowingly and wilfully failed to notify the hazardous condition to the nearest Coast Guard office immediately after the leak was discovered in St Louis, Missouri.(3)
The defendants moved for a judgment of acquittal on the ground of improper venue arguing that the Western District of Kentucky was improper because the violation of the act was a point-in-time offence that was complete at the time the defendants failed to notify the Coast Guard of the hazardous condition immediately in St Louis, Missouri. The district court granted the defendant's motion, but the Sixth Circuit Court of Appeals reversed.
The Sixth Circuit reversed the district court judgment of acquittal for improper venue, holding that the defendants' failure to report immediately was a continuing offence (not a point-in-time offence) because the duty to report hazardous conditions immediately continued from the time the leak was discovered in St Louis, Missouri, until the Coast Guard was notified. Because the barge was present in the Western District of Kentucky and the defendants did not notify the Coast Guard of the hazardous condition, the court held that the act violation occurred in part in the district of Kentucky; thus, venue was proper.
The Sixth Circuit supported its conclusion from the 'catch-all' venue provision found in the federal criminal procedural statute. The catch-all provision provides that: "any offense against the United States begun in one district and completed in another, or committed in more that one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed."(4) Because the barge's violation of the act continued while the barge was present in the district of Kentucky, the court held that venue was proper.
A violation of the act by failing to notify the coast Guard immediately of a hazardous condition may expose defendants to prosecution in different districts. The best approach to avoid exposure in multiple venues is to instruct the owner, agent, captain, operator or person in charge of the vessel to report a hazardous condition to the Coast Guard immediately once an incident occurs. As evidenced from this case, a failure to notify the Coast Guard in a timely fashion may allow the government to file charges in any venue where the vessel is located or passes through until the hazardous condition is notified to the Coast Guard.
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(1) United States v Canal Barge Co, 2011 US App LEXIS 460 (6th Cir 2011).
(2) A hazardous condition is "any condition that may adversely affect the safety of any vessel...or the environmental quality of...navigable waterways of the United States. It may, but need not, involve... leaking...". 33 CFR §160.204.
(3) Under 33 CFR §160.215: "Whenever there is a hazardous condition either aboard a vessel or cause by a vessel or its operation, the owner, agent, master, operator, or person in charge shall immediately notify the nearest Coast Guard Sector Office or Group." Any person who wilfully and knowingly violates such regulation commits a class D felony. 33 USC §1232(b)(1).
(5) 33 CFR §160.215: "Whenever there is a hazardous condition... [the] person in charge shall immediately notify the nearest Coast Guard Sector Office...." (emphasis added).
The Sixth Circuit also interpreted the meaning of the word "immediately" from the Ports and Waterways Safety Act regulation.(5)The court reasoned that the barge's immediate obligation to report the hazardous condition to the Coast Guard did not cease when the barge delayed in reporting the leak in St Louis, Missouri. On the contrary, the court held that the barge's immediate obligation continued at least until a report was made to the Coast Guard or until they otherwise became aware of the condition. Because the barge still had a duty to notify the Coast Guard while the barge was present in Kentucky, the court held that the barge's offence continued. Thus, prosecution in that district was appropriate.