Why are ship owners and operators held to a higher standard than are hunters and farmers?
When Congress enacted the Migratory Bird Treaty Act (MBTA) in 1918, the statute was intended to implement the treaty with Great Britain (acting on behalf of Canada) largely to control the over-hunting of migratory birds that were shared by the neighboring nations. Over time, similar treaties have been ratified with Mexico, Japan, and Russia. Gradually, courts in the United States began interpreting the MBTA literally. Since the statute does not contain a criminal intent (i.e., scienter) provision, the courts have ruled that the MBTA created a strict liability crime. This means that if you performed the act that takes (e.g., kills or harms) a migratory bird, you have violated the MBTA, regardless of whether your act was intentional, negligent, or truly accidental. The MBTA establishes a regulatory program to control and limit hunting of migratory birds. Among other things, persons such as farmers are prohibited from baiting fields and hunters are prohibited from hunting on or near baited fields. After some hunters were convicted of violating the MBTA despite their contention that they did not know the field had been baited, Congress amended that MBTA in 1998 to require proof that the hunter knows or reasonably should know that the field was baited and that the person baiting the field did so for the purpose of causing, inducing, or allowing the hunter to take or attempt to take a migratory bird by the aid of baiting. A bill was recently introduced in the Senate (S. 1634) to broaden this exemption. That may be all well and good for farmers and hunters, but reduces the risk of prosecution and conviction for no one else. Since the Exxon Valdez oil spill in 1989, the MBTA has been used to prosecute the owners and operators of ships from which oil is spilled. Facing the threat of imprisonment for a violation for which there is no defense, ship owners and operators have agreed to plead guilty and pay substantial (sometimes multi-million dollar) fines. It is only fair that, in this regard, ship owners and operators be treated in a manner similar to that accorded farmers and hunters.