In a split decision, the Sixth Circuit Court of Appeals has ruled that a failure to promptly report a barge leak was a “continuing” criminal violation of the Ports and Waterways Safety Act (PSWA). United States v. Canal Barge Co., No. 09-5388 (6th Cir. 01/07/11).

In 2005, defendant’s barge was carrying 400,000 gallons of benzene down the Mississippi River and sprang a leak near St. Louis, Missouri. Jeffrey Scarborough, defendant’s employee and the pilot of the barge’s towboat, instructed deckhands to seal the leak by rubbing a bar of soap over a crack in the hull. Later the defendant’s port captain, Paul Barnes, directed the pilot to apply an epoxy patch, which temporarily sealed the leak. Captain Randy Martin, who had been off duty when the leak was discovered, resumed control of the towboat later that day.

The barge was transferred to a towboat owned by a different company near Cairo, Illinois, and towed onto the Ohio River. Four days later, the patch failed, and the new towboat pilot notified the Coast Guard office in Louisville, Kentucky. The barge was subsequently cleaned and permanently repaired.

The government filed an indictment in the U.S. District Court for the Western District of Kentucky against the Canal Barge Co., Scarborough, Barnes, and Martin. A jury found the defendants guilty of violating the PWSA, but the trial court granted defendants’ motion for a judgment of acquittal on the ground of improper venue, ruling that the charge should have been brought in Missouri, where the leak initially occurred.

The Sixth Circuit noted that Congress has the power to create a “continuing offense” by defining the locality of a crime as extending “over the whole area through which force propelled by an offender operates.” According to the court’s majority, the applicable Coast Guard regulation imposes an obligation to report immediately. This immediate obligation, however, “does not mean that the obligation ceases as soon as there has been some delay in reporting,” according to the court. Rather, it continues until the Coast Guard is made aware of the condition. Thus, the Sixth Circuit reversed the district court.

The dissenting judge wrote that the majority opinion correctly concluded that the evidence was sufficient to convict defendants, but she disagreed that the failure to “immediately” notify the Coast Guard was a continuing offense.