Opinion
CRIMINAL ACTION NO. 03-137 SECTION "C"
February 3, 2004
ORDER AND REASONS
Both the government and defense have submitted proposed jury instructions dealing with the level of culpability required for conviction under 18 U.S.C. § 1115. In relevant part, the statute reads:
Every captain, engineer, pilot or other person employed on any steamboat or vessel, by whose misconduct, negligence or inattention to his duties on such vessel the life of any person is destroyed . . . shall be fined under this title or imprisoned not more than ten years, or both.
The dispute is over what degree of "negligence" is sufficient to trigger criminal liability. The government's instruction defines negligence as a "breach of duty" which it then defines as "an omission to perform some duty, or it is a violation of some rule, which is made to govern and control one in the discharge of some duty." (Rec. Doc. 33). The defense insists that the government must prove "gross negligence" which the defense further defines in part as "wanton or reckless disregard for human life." (Rec. Doc. 34). For the following reasons, the Court concludes that gross negligence is not necessary and that any level of negligence is sufficient 1 meet the threshold. At the same time, while not specifically briefed by the parties, the Court also emphasizes that considering this lesser standard of culpability, strict proof is necessary to establish that the death resulted as a result of that negligence.
The predecessor to § 1115 was originally enacted in 1838 as part of a longer statute setting forth various licensing and safety requirements for steamboats. Act of July 7, 1838, 5 Stat. 304. The twelfth section of the statute created the offense at issue here. It stated the same elements as above, with the additional phrase that the offender would be guilty of "manslaughter."
The stated purpose of the overall statute was to "provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam." Id. At that point in time, steamboat travel was common on the nation's waterways, but so were horrific accidents resulting in hundreds of deaths of passengers and crew. United States v. Holmes, 104 F. 884 (N.D. Ohio. 1900). The goal of the law was to prevent these catastrophes in the future by demanding utmost vigilance from the crew and attaching criminal liability for fatal lapses. In 1846, for example, a federal judge presided over a grand jury convened in the Eastern District of Louisiana to investigate alleged violations of the statute. In re Charge to Grand Jury, 30 F. Cas 990 (E.D. La. 1846). He explained the purpose of the law and the level of culpability required:
The frequent loss of human life in consequence of explosions of the boilers of steamboats, of collisions and the burning of steamboats on our western waters, and especially on the Mississippi river, imposes upon you the solemn duty of diligently inquiring into every case that may be brought before you or that may come under your cognizance. The strong arm of the law must be interposed to put an end if possible to these terrible disasters . . .
There is a disposition to inquire whether wicked motives may have prompted the commission of the act, and in the absence of all supposed malice to conclude that there can be no guilt. The law, however, looks to the consequences of the act, and is utterly regardless of the purpose that may have prompted its commission. I wish you, gentlemen, to bear in mind that the (statute) has nothing to do with the motives. It was designed to punish the captains, engineers and pilots of steamboats for their negligence or inattention . . . We may admit what doubtless generally is the fact, that when a boiler explodes or a collision takes place, there was no malice on the part of the officer of the boat, through whose negligence or inattention it occurred; still, if there be evidence to show that negligence or inattention, the officer is guilty in the eye of the law . . . That statute virtually says to the officers of steamboats who assume the solemn responsibility of transporting persons and property from one port to another: You shall attend strictly to the duty which you have, for a valuable consideration, assumed to perform. You shall observe abundant caution; you shall take all proper care that no disaster occurs which may result in the loss of life.Id. at 991.
While the judge clearly explained that neither intent nor "malice" is required, he made no distinction between simple or gross negligence or simple or gross inattention. Instead, he instructed that the statute demanded that the vessel crew "attend strictly to duty" and "observe abundant caution" in light of the carnage that can result from a mistake.
United States v. Warner, 28 F. Cas. 404 (D. Ohio, 1848), appears to be the first reported prosecution under the law. In that case, a steamboat collided with a schooner and sank. Several passengers drowned. In instructing the jury, the trial judge discussed intent:
At common law, and usually in statutory crimes, the intention with which the act is done, charged as criminal, constitutes the element of the crime. But, in the section now brought to the notice of the court, the legislature seem studiously to have avoided the use of any terms, or words, making the intention of the party an ingredient of the offense. It is declared, in words so plain as to admit of no doubt, that any act of `misconduct, negligence or inattention,' on the part of any one concerned in steamboat navigation, producing as a result, the loss of life, shall incur the guilt and the penalty of the crime of manslaughter. (Emphasis supplied)
28 F. Cas. at 407.
Again, while the judge made it clear that deliberate misconduct isn't necessary, he also read the statute to "admit of no doubt" that "any" act of negligence or inattention sufficed.
The judge also discussed the history behind the law, the numerous steamboat disasters and the fatalities which "justified) the conclusion that there was gross negligence (on the part of those in charge) yet without the possibility of proving . . . a malicious intent." 28 F. Cas. at 408. While this language favors the defense's claim that "gross" negligence is required, the judge also noted that the statute is "stern" and was designed to "enforce the greatest possible vigilance and caution on the part of those concerned in steamboat navigation." Id.
United States v. Farnham, 25 F.Cas. 1042 (S.D. New York, 1853) offers the clearest declaration that any degree of negligence suffices. The master of a steamboat was charged with violating the statute, the particular act of negligence being the failure to open the safety valve on the boiler while the ship was docked. Many lives were lost in the ensuing explosion. In instructing the jury, the judge stated:
The law does not require the public prosecutor to prove wilful mismanagement or malconduct by the accused. The inquiry is not, whether he was guilty of intentional negligence or inattention, but. only whether he did what is forbidden by the law, and whether the explosion and destruction of life charged in the indictment arose from either of those causes. To resolve that question, you must have a clear and accurate understanding of the meaning of the terms used by congress in the law.
By misconduct, negligence or inattention in the management of steamboats, mentioned in the statute, is undoubtedly meant the omission or commission of any act which may naturally lead to the consequences made criminal; and it is no matter what may be the degree of misconduct, whether it be slight or gross, if the proof satisfies you that the explosion of the boiler was the necessary or most probable result of it. (Emphasis added)
25 F. Cas. at 1044.
In United States v. Collyer, 25 F. Cas. 554 (S.D.N.Y. 1855), the defense attorney specifically argued that "mere negligence" that would trigger civil liability was not enough to satisfy the statute but rather "gross negligence" was required. However, in his jury charge, the trial judge adopted the language from Farnham:
What was meant by misconduct, negligence, and inattention, in the law of Congress, upon which this prosecution is founded, is well expressed by the learned judge, in his charge to the jury, in the case U.S. v. Farnham [Case No. 15,072]. I, in substance, use his language. `By misconduct,' he says, `negligence, or inattention in the management of steamboats, is undoubtedly meant the omission or commission of any act which may naturally lead to the consequences made criminal; and it is no matter what may be the degree of misconduct, whether it is slight or serious, if the proof satisfy you that the setting fire to the boat was the necessary or most probable cause of it.'
25 F. Cas. at 578.
In United States v. Keller, 19 F. 633 (D. West Virginia, 1884), two steamers collided in the Ohio River. The judge charged the jury on "negligence" much as the government would like the charge to be in this case:
It has been well defined to be `a breach of duty.' I think, however, the better definition is that it is an omission to perform some duty, or it is a violation of some rule, which is made to govern and control one in the discharge of some duty. Applying this rule of law, if you should find from the evidence that the accused omitted to perform any duty, or that there was an absence of proper attention, care, or skill, and the performance of his duties as pilot of the Scioto, then you must of necessity find him guilty of negligence; and that if in consequence of such negligence the life of any person was lost, then you must find him guilty as charged in the indictment.
19 F. Cas. at 638.
Van Schaick v. United States, 159 F. 847 (2d Cir. 1908), appears to be the first reported appellate decision dealing with the statute. In that case, over 900 passengers died in a fire on a steamboat. The alleged duties violated included the failure to have adequate life preservers, pumps and fire hoses and the failure to have adequately trained the crew to deal with a disaster. The conviction was affirmed and the appellate court dealt with the elements of the offense only briefly:
Under the statute it was necessary for the United States to prove three propositions: First, that the defendant was captain of the Slocum. Second: that he was guilty of misconduct, negligence or inattention to his duties on the Slocum. Third: that by reason of such misconduct, negligence or inattention human life was destroyed. Intent is not an element of the offense, malice need not be proved and it is unnecessary to show that the acts or omissions which caused the loss of life were willful or intentional. U.S. v. Keller (C.C.) 19 F. 633; U.S. v. Holmes (C.C.) 104 F. 884.
Van Schaick, 159 F. at 850.
The court later in the opinion stressed that vessel owners and masters "should be held to the strictest accountability and required to exercise the highest degree of skill and care. In this way alone can human life be safeguarded and such appalling disasters, as that which befell the General Slocum, be effectually prevented." Id.
It appears clear from the purpose of the statute, its legislative history and the available case law interpreting it that any degree of negligence is sufficient to meet the culpability threshold, however slight.
The defense does point to one district court case from the Ninth Circuit where the trial judge dismissed an indictment under § 1115 for failure to allege "gross negligence" as an essential element. Unfortunately, that decision is not a reported one so the reasoning is unavailable. On appeal by the government, the appellate court did not address the issue but rather affirmed the dismissal on the separate ground of improper venue. United States v. Hilger, 867 F.2d 566 (9th Cir. 1989).
Apart from citing the lower court ruling in Hilger, the defense looks for support in decisions interpreting a different statute, 18 U.S.C. § 1112, involuntary manslaughter. That statute defines involuntary manslaughter in part as the commission "without due caution and circumspection, of a lawful act which might produce death." The phrase "without due caution and circumspection" has been interpreted by the Fifth Circuit to require "gross negligence, meaning a wanton or reckless disregard for human life. . . ." United States v. Fesler, 781 F.2d 384, 392-393 (5th Cir. 1986); United States v. Browner, 889 F.2d 549, 553 (5th Cir. 1989). The defense argues that since the predecessor to § 1115 was also described as manslaughter, the element of gross negligence should be read into this statute as well. See United States v. Meckling, 141 F. Supp. 608, 621, n. 27 (D. Maryland, 1956). While the word manslaughter no longer appears in § 1115, the defense points out that it is still referred to in case law as the "Seaman's Manslaughter Act." See United States v. Mitlof, 165 F. Supp.2d 558 (S.D.N.Y. 2001).
The Court does not agree that because the predecessor to § 1115 was called manslaughter that it automatically engrafts the case law interpreting other definitions of manslaughter from other statutes. § 1112 and § 1115 are separate crimes addressing different concerns with different elements and different penalties. Involuntary manslaughter as defined in § 1112 applies to all persons, regardless of where the offense occurs or whether the offender had any unique responsibility or fiduciary duty towards the victim of the crime. On the other hand, § 1115 applies only to commercial vessels whose operators and owners, historically speaking, "daily have the lives of thousands of helpless human beings in their keeping." Van Schaick, 159 F. at 854. Maritime travel is uniquely dangerous. Unlike land travel or other land activities, the very surface of maritime work is unstable and constantly changing. Roads do not ebb and flo, or heave up in foul weather, or push a vehicle in one direction or another, or capsize it and suck it under its surface. In light of the unique dangers of maritime travel, the vulnerability of passengers on board such vessels and the voluntary nature of employment or ownership, it is reasonable to impose on such crews a heightened degree of care with the parallel lower threshold for criminal liability. While in today's world, steamboat travel is both rare and safe, maritime activity overall is still perilous. The huge size and weight of today's tankers and barges alone makes navigation precarious, heightened even more so if the cargo itself is hazardous, such as chemicals or volatile fuels. The Court can also take judicial notice that the Port of New Orleans is an active commercial port and the sharp curves of the Mississippi River leading in and out of the port require both alertness and skill from all vessel pilots at all times.
See United States v. LaBrecque, 419 F. Supp. 430 (D. New Jersey, 1976) (concluding that § 1115 was inapplicable to noncommercial pleasure vessels).
For all the above reasons, the Court concludes that neither gross negligence nor wanton or reckless conduct are essential elements of § 1115.