New Development

On October 5, 2011, the MV Rena, a 47,000 ton container vessel registered in Liberia and owned by the Costamare Shipping group, struck the Astrolabe Reef off of Tauranga, New Zealand.  At the time of this advisory, the ship is in extreme distress and on the verge of breaking up.  Dozens of containers have fallen off of the ship, creating navigational and environmental hazards, and heavy slicks of oil, presumed to be bunker fuel, have begun to wash up on the shores of the North Island community.  The New Zealand authorities have already, a little more than a week after the incident, brought criminal charges against the captain and the second officer, and there are reports that the government is considering whether to bring charges against the ship owner as well.  The charges are under the Maritime Transport Act and relate to operating a vessel causing unnecessary danger or risk to person or property.  The charges carry a monetary penalty and a prison term of up to one year.  The spill has already been identified as New Zealand’s worst marine environmental disaster, impacting some of New Zealand’s most environmentally sensitive areas.  Whilst the specific causes and circumstances of the ship running aground on the reef have yet to be determined, the relatively quick filing of criminal charges against the two ship’s officers and the apparent discussions about ship owner criminal liability reflect the ongoing, and nearly inevitable, criminalization of significant marine casualties on a worldwide basis.

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Background

The civil liability regimes for marine casualties, including significant oil spills, are well-established on the international level through various International Maritime Organization conventions and domestically in many countries.  The International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto and by the Protocol of 1997 (known as “MARPOL”), and the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (known as the “Bunker Convention”), are two examples of the way the international maritime community has attempted to address liability and compensation for oil spills such as the one involving the MV Rena.

In recent years, however, there has been an increasing focus on criminal liability for significant marine pollution incidents around the world.  From the Erika and Prestige spills off the shorelines of Western Europe to the Exxon Valdez, Selendang Ayu, Cosco Busan and Deepwater Horizon spills, among others, in the United States, and other incidents around the world, criminal charges have become almost a matter-of-fact for the individuals in command of the vessels and often for the companies that own or operate them as well when there are significant releases of oil.  The United States has received much of the attention for large criminal prosecutions over the last few years, but the increased trend of criminalization of accidental oil spills has become a significant concern for the maritime community worldwide.

What Does This Mean for the Maritime Community?

Most owners and operators of vessels have prepared to some extent for a marine casualty involving the release of oil, whether in the form of cargo or fuel from their vessels.  The increasing focus on criminal liability, including potential jail time for individuals involved, as has already been demonstrated in the United States, Europe and Asia, has raised the stakes even more for the maritime community.  It is not enough for owners, operators, and crewmembers to simply rely on oil spill response plans and local agents or counsel for advice.  Those responsible for the operation of ships must be prepared in advance and train their crew and senior managers for the likelihood of a criminal investigation in the event of an oil spill from one of their vessels, including the importance of avoiding conduct that could be considered obstructive.  Crewmembers need to be informed of their rights in the jurisdictions to which their vessels navigate.  The physical and electronic records on the vessel and shoreside must be preserved in anticipation of the investigation, and the shipmanager and owner should quickly determine whether to retain criminal counsel, based on the circumstances of the casualty, and commence their own internal investigation to develop the facts while memories are fresh.

These are just some of the issues that are important when an incident like the MV Rena oil spill occurs.  Preparation in advance, and quick and decisive action at the time of the incident, are critical not only to the oil spill response and cleanup efforts, but to protecting the individuals and companies involved in connection with potential criminal charges as well.  The use of criminal penalties will likely only increase in the future and the well-prepared companies and crewmembers will be best suited for handling the issues involved when these unfortunate incidents occur.