Criminal liability for onboard negligence

WorkBoat.com online editor Leslie Taylor posed some important questions in her blog last week, “Captains in Court,” and the answers to these questions could ruin the life of every crewperson on every U.S.-flagged vessel. When a person who is just doing their job onboard makes a bad mistake and hurts somebody else, threatening them with prison could be a slippery slope toward universal criminality.

A basic tenet of our justice system is that non-intentional negligence should be a civil matter, since imprisoning all tortfeasors (those who harm others through negligence) would put most of us in jail. However, centuries ago the “depraved heart” doctrine emerged in British jurisprudence, the idea that even without intent a person could be held criminally liable for actions so negligent that they reveal a depraved heart. Law texts like to use the example of a person speeding drunk through a school zone: the fact that she had no intent to kill children — and may even have hoped she wouldn’t — won’t protect her from a finding of constructive intent and criminal responsibility.

This formula has worked well for a long time, and there’s no reason not to apply it in a maritime context. As to the facts of the Dennis Egan case, the question is whether ordering a deckhand to heat a frozen discharge pipe with a propane torch displays a depraved heart. If credible testimony indicated that it’s done all the time and that, although negligent, the captain was merely instructing the deckhand to do what he’d done many times himself, it would be hard to argue that he had a depraved heart and should be imprisoned. One has to assume this was not the case in U.S. v. Egan.

If the facts in a case are ambivalent as to whether the conduct displays a depraved heart, then the jury has to decide one way or the other, keeping in mind that the prosecution has the burden of proof. This is something British and U.S. juries have been doing, with considerable success, for the last few centuries.

In Leslie’s other example, in which a tug crew was not held criminally responsible for running over a fishing boat and killing two occupants primarily because there was no rule on that stretch of that waterway requiring a lookout, the outcome seems fair. This is not to say that the crew and its employer are not civilly liable for wrongful death and other losses, just that they didn’t commit a crime.

Making the dividing line between criminal and civil misconduct that between intentional and non-intentional (i.e., traditionally negligent) conduct also has the advantage of offering what the lawyers like to call a “bright line test,” a standard that the courts will find easy to apply. As for constructive criminal behavior, a decision that a defendant has exhibited a depraved heart should be, like the actual existence of depraved hearts among us, a rare thing, it should be reserved only for the most egregious conduct and not be lightly taken.

About the author

Capt. Max Hardberger

Max Hardberger is a maritime attorney, flight instructor, writer, and maritime repo man. He has been a correspondent for WorkBoat since 1995. His memoir, Seized: A Sea Captain’s Adventures Battling Scoundrels and Pirates While Recovering Stolen Ships in the World’s Most Troubled Waters, was published by Broadway Books in 2010. He’s appeared on FOX, The Learning Channel, National Public Radio and the BBC, and has been the subject of articles in Fairplay Magazine, the Los Angeles Times, Men’s Journal, Esquire (UK), and the London Sunday Guardian.

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