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Wednesday, July 17, 2019

Maritime Logistics Professional

Selendang Ayu injustice

Posted to Maritime Musings (by on January 29, 2013

A misuse of strict liability by the federal government

On 6 December 2004, the bulk carrier Selendang Ayu was en route from Seattle, Washington to Xiamen, China carrying 66,000 tons of soybeans.  It also had approximately 340,000 gallons of bunkers and other petroleum products (lubricants, etc.) on board.  During a winter storm in the Bering Sea, the ship suffered a major engine casualty.  Despite the best efforts of the engineering crew, the engine could not be restarted.  The master sent a distress message to the US Coast Guard.  There were no vessels in the vicinity capable of taking the Selendang Ayu under tow.  Winds and waves pushed the ship south toward the Aleutian Chain.  The Coast Guard Cutter Alex Haley arrived on scene on 8 December but, due to the intensity of the storm, was unable to deter the movement of the much larger Selendang Ayu.  The Selendang Ayu grounded off the north shore of Unalaska Island later that day.  Using two helicopters, the Coast Guard began evacuating the 18 crewmembers.  One helicopter, with three aviators and seven Selendang Ayu crewmembers, was struck by a rogue wave as it hovered over the deck of the bulk carrier.  The helicopter crashed into the sea.  The second helicopter was able to rescue the aviators (who were wearing survival suits), but the mariners drowned.  The Selendang Ayu broke its back in the fierce winter storm, spilling its entire cargo of soybeans and its bunkers and other oils.  Several thousand seabirds died as a result of the oil spill.  The owners of the Selendang Ayu spent millions on the environmental response effort and then millions more on the removal of wreck from the isolated shore (full removal was insisted upon by the State of Alaska, which had previously allowed wrecks in similar locations to deteriorate in place).  Millions were also paid in natural resource damage claims.  None of these expenditures were wholly inappropriate.  The US Department of Justice, though, decided that criminal prosecution of the owners was necessary.  After opening the case, it could find insufficient evidence of either intentional or negligent criminal conduct.  Not deterred, DOJ filed charges against the owners for violation of the Refuse Act of 1899 (for discharging soybeans in navigable waters of the United States) and for violation of the Migratory Bird Treaty Act (for “taking” migratory seabirds that had ingested the spilled oil).  The interesting aspect of these two charges is that the courts have interpreted these statutes as “strict liability” crimes.  This means that there is no usual criminal defense.  The owners were unable to argue that they did not intend the grounding to occur; nor could they argue that they were not negligent with regard to the grounding.  Neither argument constitutes a defense.  Left with no choice, the owners entered a plea of guilty and paid a criminal fine of $9 million.  This marks the only time in modern history that the Department of Justice has charged a shipowner solely for violation of strict liability crimes.  I, for one, hope there is no recurrence of this practice by the federal government.