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Criminalization Legacy Lingers

March 20, 2014

A disturbing trend toward criminalisation of maritime accidents and violations continues to threaten shipping 25 years after the Exxon Valdez disaster, a prominent defence lawyer says.

Attorney Michael Chalos, who successfully defended Valdez master Captain Joseph Hazelwood against criminal charges in 1990, told an audience at Heidmar’s annual pools seminar that more threats loom.

Chalos spoke days before a landmark anniversary of the 24 March 1989 Valdez spill, which saw the Exxon VLCC spill 11 million gallons of crude into Alaska’s Prince William Sound after grounding on a reef and gashing its hull.

It was the first criminal prosecution in a maritime accident, and one that never should have happened, Chalos told his audience. The case was sensationalised by reports that Hazelwood had been drinking heavily before leaving the bridge but amounted to simple human error by a helmsman and a systemic breakdown of safety and environmental safeguards, the veteran lawyer maintains.

“For the whole first year, it was a story about a drunk captain,” Chalos said. “In reality, it was a systemic failure — everyone involved had gotten complacent. Alcohol played absolutely no role in the grounding of the Exxon Valdez — it was a red herring.”

Chalos concedes Hazelwood had been drinking on shore before boarding the tanker but cited witness testimony that he did not appear to be impaired prior to the accident. Exxon ultimately fired him and paid plaintiffs more than $500m in punitive damages.

Hazelwood’s acquittal on the three most serious charges brought against him has, unfortunately, not deterred US prosecutors from continuing to criminalise maritime errors or misconduct, argues Chalos, who is partner in the Long Island law firm Chalos O’Connor.

Emissions violations appear to be the current flashpoint, Chalos says, and are increasingly being pursued with vigour by the US Environmental Protection Agency (EPA), which appears better funded than the US Coast Guard.

“The EPA has a lot of money — the Coast Guard, not so much,”

—Michael Chalos

According to Chalos, “the EPA is taking charge. It remains to be seen whether the Coast Guard will have the resources to play a secondary role.”

Shipowners should expect strategies similar to “magic pipe” cases, in which authorities have used detentions and charges of false documentation to make their case.

The trends are upsetting — and wrong, Chalos argues. “It’s not a criminal event when you have an accident,” he said.