An old law for a modern case…http://www.silobreaker.com/19thcentury-law-may-come-into-play-in-bp-case-5_2264462177211514993
Prosecutors consider taking an unusual tack in Gulf deaths
By TOM FOWLER
HOUSTON CHRONICLE
March 29, 2011, 11:20PM Prosecutors may look to a 173-year-old maritime law to bring manslaughter charges against individuals involved in the Deepwater Horizon disaster, adding to a legal arsenal that already includes the federal Clean Water Act.
Attorneys familiar with the government investigation of the deadly accident and spill told the Chronicle the possibility of bringing charges of involuntary manslaughter against individuals has been on the table since the investigation began.
Some note that when Attorney General Eric Holder announced the criminal investigation last June, he emphasized the 11 fatalities in the case, a possible signal that such charges would be considered if warranted.
Bloomberg News first reported Tuesday the possible use of the involuntary manslaughter or seaman’s manslaughter charges by prosecutors based on their review of the actions of BP managers on the rig and offshore.
The burden of proof to win a conviction of seaman’s manslaughter — which is based on a law from the 1830s - is lower than for regular manslaughter. The sentence could be up to 10 years in prison.
It has been reported since early in the spill investigation that companies involved could face criminal charges under the Clean Water Act.
That law also exposes individuals to criminal liability - even if they were not directly involved or aware of an incident - under the “responsible corporate officer doctrine” that has developed through many years of case law.
Alaska backhoe case
In one of the best-known cases, a supervisor of an Alaskan railroad company spent six months in jail when a backhoe operator ruptured a pipeline that spilled oil into a river. The supervisor was at home and off duty at the time of the accident, but prosecutors only needed to convince a jury he was guilty of civil negligence - failure to provide the proper care an ordinary person would to avoid the accident.
If prosecutors seek other charges, they might base the allegations on the Seaman’s Manslaughter Statute, written in response to deadly steamboat accidents in the early 1800s. Following the death of Sen. Josiah Johnston, a Louisiana Democrat who was killed when the steamboat Lioness exploded on the Red River in Louisiana in May 1833, President Andrew Jackson called for tougher steamboat safety laws.
A law eventually passed in 1838 aimed to encourage vigilance among steamboat crews by attaching criminal liability for fatal accidents.
But fatalities continued, so the law was updated in 1852 to require safety equipment on ships including lifeboats, life preservers and firefighting gear. This improved safety and formed the foundation for the U.S. Coast Guard inspection system.
Bar is low for proof
Because of the law’s original intent of boosting attentiveness by steamboat crews, the bar for convictions under the Seaman’s Manslaughter Statute is relatively low. It only requires proof of simple negligence, said Gregory Linsin, a former prosecutor with the Department of Justice Environmental Crimes Section who is now a partner with Blank Rome in Washington.
“Simple negligence is a failure to exercise the standard of care that a reasonably prudent person would exercise under the circumstances,” Linsin said.
Other manslaughter statutes, typically in state law, “generally require proof of gross negligence, which is a higher burden of proof involving recklessness or a willful disregard for a known risk,” he said.
But prosecutors seldom bring criminal charges in oil spills.
Linsin said in the 22 years since the tanker Exxon Valdez ran aground and spilled oil in Alaska’s Prince William Sound, the federal government has brought seven criminal prosecutions based on negligent conduct in connection with oil spill events.
Factors prosecutors are likely to consider include the amount of environmental damage the spill causes and whether a potential defendant did anything after the accident to obstruct the investigation.
The Houston Chronicle has reported previously that prosecutors are investigating whether BP withheld accurate estimates of the oil spill’s scope in the weeks after the accident in order to slow the slide in the company’s stock price, and whether workers traded stock based on inside knowledge about the spill.
John Buretta, an assistant U.S. attorney known for investigating organized crime, was tapped to lead the team earlier this month, replacing Howard Stewart, a prosecutor in the Environmental Crimes Section