Do you know what an Accipiter gularis is? How about a Ficedula narcissina? Does Heteroscelus incanus ring a bell? They are, respectively, the Japanese Sparrowhawk, Narcissus Flycatcher and Wandering Tattler, and all are protected under the Migratory Bird Treaty Act (MBTA).
There are over 1,000 avian species protected by MBTA. So, who cares you ask? You should.
The MBTA is arguably the most potent weapon that prosecutors have at their disposal if you’re involved in a spill. It is arguably more potent than the Oil Pollution Act of 1990. MBTA has been around since 1918 and was originally intended to protect migratory birds and waterfowl from excessive hunting.
For the last two decades, however, beginning with the Exxon Valdez grounding, the MBTA has been used like a club by federal prosecutors. They love it because medium to large spills are virtually guaranteed to kill some migratory waterfowl. Prosecutors love to use the act because it is a strict-liability statute. This means they do not have to prove criminal intent, or even plain old negligence, was involved in a spill. Just the fact that a spill occurred and birds listed on the MBTA’s protected list died as a result of the spill is enough. As a result, both mariners and management may be caught up in this net. The act is a relatively low legal hurdle to clear, so it’s a virtual slam-dunk for the Justice Department when they decide to use it.
Traditionally, for an act to qualify as criminal, it had to be committed knowingly and be intentional. The alarming trend of criminalizing the actions or inactions of mariners that otherwise would be classified as some form of negligence has put a chilling effect on recruitment and retention. For this reason, along with many others, some mariners no longer recommend a maritime career.
Last week, Sen. Mark Pryor of Arkansas introduced a bill (S. 1634) to amend the Migratory Bird Treaty Act to provide certain exemptions relating to the taking of migratory game birds. Perhaps the Act should be further amended to make it a less potent weapon for prosecutors in the event of an oil spill. Restoring a sane standard for what constitutes a criminal act would be a step in the right direction.