The Accident of Strict Liability
November 5, 2004
Dennis L. Bryant- New York
There are two so-called ‘strict liability’ criminal statutes in the United
States that strike fear into hearts of merchant mariners and raise issues for
Coast Guard personnel concerned with regulating the merchant marine, protecting
the environment, and enforcing the law. These two statutes are the Refuse Act
of 1899 and the Migratory Bird Treaty Act of 1918. Neither one is required to
be viewed as creating strict liability for those who do not fully comply with
their provisions, but, due to unfortunate accidents of history, that is the
current general interpretation.
Refuse Act of 1899
The Refuse Act of 1899 is the codified portion of the Rivers and Harbors
Appropriation Act of March 3, 1899. Among its numerous other sections, the
Appropriation Act included a provision stating that it was illegal to throw,
discharge, or deposit any refuse matter of any kind or description from a ship
or from the shore into navigable waters of the United States. The provision was
designed to deter use of waterways as garbage dumps, which was a significant
problem at the time.
The statute was loosely worded and included no reference to intent or mens
rea. The term ‘mens rea’ means the state of mind indicating
culpability which is required as an element in most crimes. At common law,
criminal liability was invariably accompanied by criminal intent. While a
person who unintentionally harmed another might be civilly liable, the
government did not impose a criminal sanction unless the harm was intentional or
reckless. As Supreme Court Justice Oliver Wendell Holmes, Jr. said in classic
book The Common Law: “Even a dog distinguishes between being stumbled
over and being kicked.”
In interpreting the Refuse Act of 1899, early courts declined to read the
statute literally and inserted an intent requirement before upholding the
criminal conviction of an individual. Thus, in a 1906 decision of the U.S.
Court of Appeals for the First Circuit, the court upheld the liability of the
ship in rem for a discharge unaccompanied by intent, but struck down the
conviction of the individuals involved. The court stated: “Section 16 of the
act in question [the Refuse Act], in declaring the personal punishment, uses
well-known common-law terms . . . thus unmistakably recognizing and intending
tests of criminality which exist under general rules of proceedings against
persons charged with misdemeanors.”
In 1915, a number of proceedings against various tugs and scows operating in
New York harbor were brought before the federal district court in a consolidated
action. All of the cases involved dumping of refuse outside the permitted
area. The court upheld the assessment of penalties against the various tugs and
scows, except in one instance. In that case, while the dumping occurred outside
the permitted area, evidence showed that the scow had been recently overhauled
and also inspected immediately before the incident. The dumping occurred
because the pawl restraining the load suddenly broke. In dismissing the action,
the court stated: “Defective machinery is, by the terms of the statute, no
excuse. I think, however, that defective machinery means machinery unsuited for
the purpose or out of repair, and does not refer to a sudden breaking down of
properly installed and inspected machinery.” In other words, where the owner
had acted prudently and the accidental dumping occurred anyway, no criminal
liability would attach.
It was only later that courts started interpreting the Refuse Act literally
and ruled that individuals could be held strictly liable for any discharge of
refuse into navigable waters.
Migratory Bird Treaty Act of 1918
At the beginning of the twentieth century, it was determined that hunting was
decimating migratory birds in North America. The governments of Canada and the
United States entered into a treaty to cooperatively regulate the protection
afforded to birds that migrate through the two nations. The treaty established
closed seasons for specific migratory game birds, migratory insectivorous birds,
and certain other migratory non-game birds “during which no hunting shall be
done.” The taking of nests or eggs of these birds was also prohibited, as well
as the shipment or export of such birds or bird parts or their eggs. To
implement the treaty, Congress enacted the Migratory Bird Treaty Act of 1918.
The Act makes it unlawful to pursue, hunt, take, capture, or kill any bird
protected by the treaty.
The courts, as they did with the Refuse Act, started reading the Migratory
Bird Treaty Act literally. Persons were being convicted for killing migratory
birds even though they presented evidence indicating that they did not know the
birds they shot at were migratory. Persons who shot birds attracted to baited
fields were being convicted even though they presented evidence indicating that
they did not know the field in question was baited. The courts ruled that the
Act did not include a provision requiring mens rea on the part of the violator.
Review of the Migratory Bird Treaty reveals that it was clearly focused on
controlling intentional acts – hunting. The Act was intended to implement the
treaty and generally uses terms such as pursue, hunt, attempt to take, offer for
sale, and deliver for shipment, which clearly denote volitional acts. There is
nothing in the treaty that mandates strict liability. In fact, the Act was
recently amended to change the court-interpretation that hunting from a baited
field is a strict liability crime. In accordance with a 1998 amendment, hunting
from a baited field is only an offense if the person knows or reasonably should
know that the area is baited.
It was not until the EXXON VALDEZ oil spill in 1989 that federal prosecutors
started charging masters and ship owners with violation of the Migratory Bird
Treaty Act. Now, such charges seem to have become routine in those instances
where it has been decided to criminalize an oil spill in the United States.
Such an assertion is relatively easy, since virtually every bird in the United
States has been designated as a migratory bird – whether it actually migrates or
not.
Impact
The unfortunate confluence of the Refuse Act of 1899 and the Migratory Bird
Treaty Act of 1918 is that virtually any oil spill into U.S. waters can be
treated as a criminal event if a zealous federal prosecutor so elects. This is
not to say that some spills are not correctly pursued as criminal actions, but
such unbridled discretion in the hands of a prosecutor is dangerous. Criminal
charges may be brought or pursued for inappropriate reasons. Fear of such
possible prosecutions is causing masters and others involved in marine
casualties to refuse to cooperate with Coast Guard and National Transportation
Safety Board (NTSB) investigations. As was stated in the Coast Guard’s
“After-Action” Report following the 1997 Spill of National Significance (SONS
97) Exercise:
Coast Guard enforcement will eventually be considered during the response,
but may well be affected by the actions of the local United States Attorneys
and state attorneys general/local prosecutor(s). The Coast Guard may be able
to influence, but may not be able to control the action of these officials.
As indicated by private counsel at the exercise, senior management of foreign
shipping companies commonly spend very little time in the U.S. following a
spill in order to avoid arrest by local officials. Federal and state
prosecutors may well attempt to take action prior to the departure of these
corporate officials. It was the consensus of the Executive Discussion Group
and the Philadelphia Seminar that the criminal investigation should not be
allowed to interfere with the top priority, which is to proceed with the
cleanup and stop additional oil discharge. In addition, the chilling effect
of an aggressive, ill-timed, criminal investigation on the cooperative
relationship desired for an effective crises response is unfortunate. This
issue requires more discussion and policy guidance.
Investigation of the root cause of the grounding of and oil spill from the
bulk carrier NEW CARISSA was stymied when the master refused to testify at the
investigation, citing his right against self-incrimination. The vessel had
dragged anchor and been blown ashore on the Oregon coast on February 4, 1999.
The incident was widely reported in the press and had significant political
ramifications in the state. The U.S. Attorney announced the opening of a
criminal investigation shortly before the master was scheduled to testify.
In a rare instance of independent analysis, a federal judge in Idaho in 1989
refused to convict a farmer of violation of the Migratory Bird Treaty Act after
geese died eating alfalfa in a field that the farmer had sprayed with a
registered herbicide. The court stated:
A homeowner could be pursued under the [Migratory Bird Treaty Act] if a
flock of geese crashed into his plate-glass window and were killed. An
airplane pilot could be prosecuted if geese were sucked into his jet engines.
A farmer . . . could be exposed to sanctions because he tended his crops in
the same manner as other area farmers. These examples make one queasy about
the reach of strict liability criminal statutes.
Conclusion
The point of this extended discussion is that it is a mere accident of poor
legislative drafting by Congress and poor analysis by courts that these two
statutes are interpreted as creating strict criminal liability. There is no
evidence that such was the intent of Congress when the bills were prepared. If
Congress intended these laws to create strict criminal liability, it certainly
knew how to clearly evidence that intent. Much damage has been done and little
benefit has been gained by the current interpretation of these statutes. At a
minimum, Coast Guard marine casualty investigations have been impeded because
mariners are afraid of potential criminal liability for even non-negligent
acts. It is time to rectify this historical accident and clarify the reach of
these two statutes.