Miscarriage of justice

Miscarriage of justice

There is a disturbing and growing trend within the American judicial system to criminalize the shipmaster, and in some cases, the chief engineer. This approach - trying the shipmaster by press release in advance of a hearing, arbitration or trial - implies he is guilty until proven innocent, not the other way around.

This trend is exacerbated by the growing tendency by prosecutors to try a case on the basis of political expediency, career enhancement, public opinion and, last but not least, egotism. The prosecutor's role should be to present the facts and motives of the case, not his assumptions or subjective views.

Before World War II, marine violations and accidents were thoroughly investigated, with the questioning of witnesses and the gathering of facts, records and reports. Then the shipmaster would be tried by a panel of his peers. If he were judged guilty, his master's license was suspended or revoked. The trial by his peers ensured the shipmaster was judged by experienced qualified master mariners, well-versed in the physical operation of merchant vessels and the applicable maritime laws. Bear in mind, the shipmaster was assumed to be innocent until proved guilty, and was treated as innocent and not as a criminal.

There are three categories that govern the penalties applicable to the shipmaster's actions:

-- Deliberate violation of marine and environmental laws. These cases would be where the shipmaster gives a direct order or knowingly violates the applicable laws. It is the master's duty and obligation to instruct the crew through safety and/or environmental meetings, notices, and company policy handouts to ensure they are aware of their duties. He cannot and should not be held responsible for members of his crew who, without his knowledge, knowingly violate environmental laws.

-- Direct violations of marine and environmental laws covering the knowing discharge of oily water, wastewater, sludge, slops from tank cleaning; dumping of garbage or other materials; or exchange of ballast water in zones where it is prohibited. If a master orders such violations, or if the vessel's logs, records or data recorders have been altered, he should be subject to penalties set forth by law. However, if a crewmember commits a violation without the master's knowledge, the authorities should act against the crewmember, not the ship's master.

-- Accidents involving vessels, piers, docks, stevedoring equipment and to navigation aids. In these cases, the master should not be tried on the basis of hearsay, assumptions, political expedience or bias. Instead, the cases should be based on evidence such as vessel records; witnesses' statements; data on weather, tides and currents; and the master's statements about his actions before, during and after the accident.

One cannot use the well-worn phrase, "Captain, shouldn't you have done this (spelling out what the prosecutor is assuming)." Bear in mind that when docking or undocking, the master's actions are based not on textbook theory but on experience and conditions, including wind, tide, current, vessel traffic, the maneuvering capability of his vessel, its response to engine maneuvers, the positioning of tugs and the use of mooring lines and shore personnel assistance.

If circumstances require alternative maneuvers, the ship's master must make split-second decisions. Docking or undocking a vessel in no way compares to parking your car, backing a semi-tractor trailer into its bay, backing a train onto a siding or landing a plane. It is a complicated task, influenced by wind, tide, current and the hydrodynamics of the vessel itself.

The recent case of Capt. Wolfgang Schroeder, who was charged, jailed and found guilty of being criminally negligent in causing the death of a Mobile, Ala., dockworker, is a miscarriage of justice. Capt. Schroeder is the victim of circumstances beyond his control, including the repair company permitting its workers to engage in repairing a crane while the vessel was being undocked. Certainly, had the worker been removed to a safe distance, he would be alive today and the only casualty would be the crane itself, which is repairable.

The Justice Department needs to issue hard guidelines to federal and state prosecutors, reminding them that their role is one of fair and unbiased presentation of facts and factors, free from personal gain, reputation-building and bias. We have relegated experience to the closet in favor of the bright, young and aggressive prosecutors - at expense of the ship's master.