-
USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 96-2188
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO RIVERA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Coffin, Senior Circuit Judge, ____________________
Selya, Boudin, Stahl and Lynch, Circuit Judges. ______________
____________________
Rafael Castro Lang and Rachel Brill for appellant. __________________ ____________
Andrew C. Mergen with whom Anne S. Almy, Charles A. De Monaco, ________________ ____________ ____________________
Michael J. Woods, David C. Shilton, Peter A. Appel, Lisa E. Jones, ________________ ________________ ______________ _____________
Lois J. Schiffer, Assistant Attorney General, Environment & Natural ________________
Resources Division, Guillermo Gil, United States Attorney, Jorge E. _____________ ________
Vega-Pacheco, Assistant United States Attorney, and Miguel A. Pereira, ____________ _________________
Assistant United States Attorney, were on brief for appellee.
James F. Moseley, Patrick J. Bonner, and Robert B. Parrish on ________________ _________________ _________________
brief for Maritime Law Association, amicus curiae.
____________________
OPINION EN BANC
____________________
____________________
December 2, 1997
____________________
COFFIN, Senior Circuit Judge. Appellant Pedro Rivera COFFIN, Senior Circuit Judge ______________________
appeals his conviction under 46 U.S.C. 10908 for knowingly
sending a vessel to sea in an unseaworthy condition likely to
endanger the life of an individual. He alleges that his
prosecution was invalid, that the evidence was insufficient, and
various trial errors. After a divided panel of this court
affirmed the conviction, we ordered en banc hearing on the __ ____
statutory and sufficiency issues. We now find the prosecution to
be proper, but conclude that the evidence adduced was
insufficient to establish that Rivera knew that the vessel's
condition was "likely to endanger the life of an individual."
The judgment of conviction therefore must be reversed.1
I. Background __________
This case arises out of a major oil spill that occurred
during the night of January 6-7, 1994 off the coast of San Juan,
Puerto Rico. The accident occurred after the tow wire connecting
the tugboat Emily S. to the barge Morris J. Berman parted; the ________ ________________
barge subsequently ran aground, spilling its oily cargo.
Appellant Rivera was the general manager of the Bunker Group,
which managed the tugboat.
On the night of the accident, Rivera had directed the crew
of the Emily S. to transport the Morris J. Berman from San Juan ________ _________________
to Antigua. Although various crew members of the Emily S. _________
____________________
1 The asserted trial errors were not certified for en banc __ ____
review, and the panel's rejection of them therefore is not before
us. Because our disposition renders those errors moot, we do not
need to re-adopt that portion of the withdrawn opinion.
-2-
previously had told Rivera of the towing wire's seriously
deteriorated condition, and although a new wire had been ordered
and was available,2 the voyage proceeded with the old wire in
place. Shortly after the vessel left San Juan Harbor, the wire
parted. Captain Roy McMichael repaired the wire, but did not use
a thimble, a device that prevents abrasion in a repaired section
of wire. Several hours later, the wire parted again; the barge
drifted off and went aground.
Rivera was found guilty by a jury of violating 46 U.S.C.
10908 for knowingly sending the Emily S. to sea in an unseaworthy ________
condition likely to endanger life.3 We review his conviction on
both statutory and evidentiary grounds.
II. Interpretation of 46 U.S.C. 10908 ___________________________________
The first question certified for en banc consideration is __ ____
one of statutory interpretation: was Rivera's prosecution under
section 10908 flawed because certain procedural prerequisites
were not met? Section 10908 provides as follows:
A person that knowingly sends or attempts to send,
or that is a party to sending or attempting to send, a
vessel of the United States to sea, in an unseaworthy
state that is likely to endanger the life of an
individual, shall be fined not more than $1,000,
imprisoned for not more than 5 years, or both.
____________________
2 The wire apparently was not installed before the trip
because workers were unavailable as a result of the Three Kings'
holiday.
3 The jury also convicted Rivera for knowingly violating a
Coast Guard regulation, see 33 U.S.C. 1232(b)(1), but the ___
district court later granted Rivera's motion for acquittal on
that count.
-3-
This is the final provision in Chapter 109 of Title 46. The
chapter, entitled "Proceedings on Unseaworthiness," focuses
primarily on procedures to be used by seamen to report
unseaworthy vessels. Rivera maintains that these procedures must
be instituted before a criminal prosecution may be brought under
section 10908. The government argues that section 10908 is a
freestanding statute that on its own provides a basis for
criminal liability.
To resolve this dispute, we must confront three major
analytical issues: (1) to what extent should the context of
section 10908 within Chapter 109 guide our interpretation of its
language? (2) what role should be played by legislative history?
(3) is our interpretation "palpably unreasonable"? We address
each of these substantial issues in Section A below, and briefly
note in Section B inconsistencies in this area of law that we
believe deserve the attention of Congress.
A. An Examination of Context, Legislative History, and ________________________________________________________
Reasonableness. _______________
We enter our analysis by noting that the interpretation of a
statute presents a purely legal question, and thus our review is
de novo. See Strickland v. Commissioner, 96 F.3d 542, 545 (1st __ ____ ___ __________ ____________
Cir. 1996).
(1) Plain Language or Beyond? The well established approach _________________________
to statutory construction begins with the actual language of the
provision, Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 ____________________ ________
(1985). When the "plain meaning" is clear on its face, "the sole
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function of the courts is to enforce it according to its terms."
Caminetti v. United States, 242 U.S. 470, 485 (1917); United _________ ______________ ______
States v. Bohai Trading Co., 45 F.3d 577, 581 (1st Cir. 1995). ______ __________________
From one vantage point, this is the beginning and the end of our
analysis. On its face, there is nothing unclear about the
meaning of section 10908. Its language does not limit its
application to "a person" against whom Chapter 109 proceedings
have been brought. Rather, it sets out three specific
requirements for finding a person culpable: (1) knowingly sending
a vessel to sea; (2) knowing that the vessel was in an
unseaworthy condition; and (3) knowing that the unseaworthiness
was such that it would likely endanger life. Straightforward
application of the plain language rule leaves no place for the
procedural prerequisites asserted by Rivera.
There is, however, a respectable contrary view that reading
Chapter 109 as a whole leads to a different understanding of
section 10908. From this perspective, section 10908 is designed
to enhance the complaint procedures outlined in the preceding
sections by criminalizing a knowing attempt to take a dangerous
vessel to sea after an official finding of unseaworthiness or the
lodging of a complaint pursuant to those sections.4
____________________
4 Chapter 109 was enacted in 1983 as Public Law 98-89. It
provides for the filing of a complaint with the master of a
vessel by the "chief and second mates or a majority of the crew,"
before a voyage takes place, if the vessel appears unfit to the
seaman, 46 U.S.C. 10902(a)(1). A master receiving such a
complaint is then required to apply to a district court of the
United States for the appointment of "3 experienced and skilled
marine surveyors to examine the vessel for the defects or
insufficiencies complained of." Id.; id. at 10903(a). After ___ ___
-5-
Rivera maintains that this contextual interpretation of
section 10908 is supported by a reading of the statutory
provisions from which Chapter 109 is derived, 46 U.S.C. 653-
658. Those provisions, originally enacted in 1840, were amended
in 1983 for the primary purpose of re-organizing the then-
existing maritime legislation on the safety of vessels and
protection of seamen into a more comprehensible and easily
administered scheme. See H.R. Rep. No. 98-338, at 113 (1983), ___
reprinted in 1983 U.S.C.C.A.N. 924, 925. Former section 658 ____________
consisted of four sentences, the next-to-last of which, with
minor revision, became new section 10908.5
____________________
their investigation, the surveyors must make a report stating
whether the vessel is fit and, if not, must make appropriate
recommendations as to how to render the vessel seaworthy. Id. at ___
10903(a). The district court then passes upon the report and
renders its judgment, which must be complied with by the master
and crew of the vessel. Id. at 10903(b). The remaining ___
sections of Chapter 109 detail further consequences: section
10905 provides for the filing of complaints in foreign ports;
section 10906 provides for the discharge of the crew upon a
finding of the vessel's unsuitability; section 10907 prohibits a
master from interfering with a seaman's right to file a complaint
under this chapter. Finally, section 10908, the provision at
issue here, provides for criminal sanctions.
5 The opening two sentences of section 658 were linked in
content to the preceding provisions on the appointment of vessel
inspectors by consular officials in foreign ports, and specified
when such an official should discharge a crew on account of
unseaworthiness. The third sentence began as follows:
If any person knowingly sends or attempts to send or is
party to the sending or attempting to send an American
ship to sea, in the foreign or coastwise trade, in such
an unseaworthy state that the life of any person is
likely to be thereby endangered, he shall, in respect
of each offense, be guilty of a misdemeanor, and shall
be punished by a fine not to exceed $1,000 or by
imprisonment not to exceed five years, or both, . . . .
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Rivera points particularly to the word "such" in the final
portion of section 658 -- the reference to sending a ship to sea
in "such an unseaworthy state" -- as evidence that criminal such
liability was intended only when a finding of unseaworthiness as
specified in the prior sections was made. Although that portion
of section 658 was separately codified as section 10908 as part
of the 1983 amendments, and the word "such" was deleted, Rivera
maintains that the context makes clear that the focus on
unseaworthiness remained the same: criminal liability under
section 10908 is applicable only when unseaworthiness is found
pursuant to the preceding procedural mechanisms.
We have difficulty drawing so much from the context here.
While cognizant of "the cardinal rule that a statute is to be
read as a whole . . . , since the meaning of statutory language,
plain or not, depends on context," Conroy v. Aniskoff, 507 U.S. ______ ________
511, 515 (1993) (citations omitted), we gain no insight from the
surrounding text in this instance. Indeed, the relevant
"context" is subject to different interpretations. Rivera argues
that the backdrop is a multi-part procedural scheme for making
determinations of unseaworthiness based on claims brought
primarily by seamen. The government takes a broader view,
describing the context simply as a set of provisions concerning
unseaworthiness, with the criminal prosecution serving as an
____________________
The next clause of the sentence provided a defense to the
violation based on reasonableness.
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appropriately harsh penalty for a limited category of individuals
who knowingly put lives in jeopardy.
Both of these frameworks are consistent with what we see as
the overall purpose of the legislation -- to protect seamen --
and we therefore find no aid to construction in the provisions
surrounding section 10908.6 Nor does a focus on the word "such,"
as Rivera urges, move us beyond the plain language. Although we
believe the use of "such" in the old statute appears almost
certainly to look forward to the extent of unseaworthiness
necessary to trigger liability, rather than back to a preceding
finding, there is no room for argument that the language in the
recodified provision is ambiguous. Taking section 10908 at face
value, without limitations, avoids any uncertainty.7
____________________
6 Context plays a larger role when a literal reading of the
language at issue would do violence to the overall scheme. See ___
United States v. Falvey, 676 F.2d 871, 875 (1st Cir. 1982) _____________ ______
("[C]ourts are not bound to read a statute literally in a manner
entirely at odds with its history and apparent intent.")
Construing section 10908 as a stand-alone provision not only
supports Chapter 109's overall purpose of protecting seamen but
also promotes Congress's apparent intent to increase
responsibility for life-threatening accidents. See infra at 11. ___ _____
7 This is not unlike the conflict between Justices Brennan
and Powell in Maine v. Thiboutot, 448 U.S. 1 (1980). Justice _____ _________
Brennan's majority opinion held that the phrase "and laws" in 42
U.S.C. 1983 encompassed violations of all federal statutory as
well as constitutional laws, while Justice Powell in dissent
asserted that the context clearly confined coverage of the
provision to, at most, statutes providing specifically for
equality of rights. As did the majority there, we think the
better approach, in the absence of clear guidance to the
contrary, is to accept the provision as written, without reading
in unstated limitations.
-8-
Our conviction that we should not look beyond the plain
language of section 10908 is only strengthened when we examine
both the limited legislative history of the provision and the
rationality of this interpretation.
(2) The Role of Legislative History. Keeping in mind that ________________________________
resort to legislative history typically is inappropriate when the
meaning of a statute is plainly discernible from its words, see ___
Laracuente v. Chase Manhattan Bank, 891 F.2d 17, 23 (1st Cir. __________ _____________________
1989), we engage in this discussion solely to reinforce our
conclusion that this case is best resolved through reliance on
the plain language rule. In a case such as this, where the
"statute's text is encompassing, clear on its face, and
productive of a plausible result," State of Rhode Island v. _______________________
Narragansett Indian Tribe, 19 F.3d 685, 698 (1st Cir. 1994), our _________________________
inquiry, at most, should be aimed at determining "``whether there
is a "clearly expressed legislative intention" contrary to [the
statutory] language, which would require [the court] to question
the strong presumption that Congress expresses its intent through
the language it chooses.'" Id. (quoting INS v. Cardoza-Fonseca, ___ ___ _______________
480 U.S. 421, 432 n.12 (1987)).
The signals here are mixed. While the stated purpose of the
legislation was simply to recodify in an organized fashion the
then-existing law relating to the safety of vessels and
protection of seamen8 -- suggesting that no changes were intended
____________________
8 House Report No. 98-338 states:
-9-
-- the accompanying House Report anticipated questions about
substantive revisions:
[T]he bill . . . does in fact make a great many _______________________________________________________
substantive changes to the present law. Those changes _______________________________________
are all either minor changes, adjustments, or
modifications, or they are more significant changes to _____________________________________
which the Committee received no objection and which the
Committee believed would enhance the clarity and
effectiveness of the law and the [sic] generally
accepted by the industry. Thus, if a comparison of the
language of this bill with the existing law shows that
a substantive change has resulted, it should be ______________
understood that that change was intended by the _______________________________________________________
Committee. The Committee intends and hopes that the _________
interpretation of the maritime safety laws as codified
and enacted by this bill will be based on the language
of the bill itself. The bill, as reported, is based on
that premise. There should, therefore, be little or no
occasion to refer to the statutes being repealed in
order to interpret the provisions of this bill.
The Committee also feels, as the courts have held,
that the literal language of the statute should control
the disposition of the cases. There is no mandate in _______________________
logic or in case law for reliance on legislative _______________________________________________________
history to reach a result contrary to the plain meaning _______________________________________________________
of the statute, particularly where that plain meaning ______________
is in no way unreasonable.
H.R. Rep. No. 98-338, at 120 (1983), reprinted in 1983 ______________
U.S.C.C.A.N. 924, 932 (emphasis added). Thus, the argument that
Chapter 109 must be interpreted to contain exactly the same
content as the provisions it replaced is met head-on by the
report's statement to the contrary.
____________________
The ultimate aim of this legislation is three fold: to
make maritime safety and seamen protection law easier
for the Coast Guard to administer, to make it less
cumbersome for the maritime community to use, and to
make it more understandable for everyone involved.
H.R. Rep. No. 98-338, at 113, reprinted in 1983 U.S.C.C.A.N. 924, ____________
925.
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Additionally, as the government asserts, it is by no means
clear that former section 658 required a civil adjudication of
unseaworthiness as a prerequisite to a criminal prosecution.
Although it was included within the same section as instructions
for the discharge or retention of a crew in a foreign port after
a survey of vessel conditions, the criminal provision was phrased
generally and did not reference a civil adjudication of
unseaworthiness. As we noted earlier, see supra at 8, the use of ___ _____
the word "such" in section 658 in all likelihood did not refer
back to "such" a prior civil adjudication.
Whatever the intended meaning of section 658, it seems to us
that the recodification's affirmative separation of section 10908
from other provisions, and deletion of the word "such," reflect a
deliberate decision that liability under the section is to be
distinct from, and not dependent upon, compliance with Chapter
109's civil provisions. See Cardoza-Fonesca, 480 U.S. at 442-43 ___ _______________
("Few principles of statutory construction are more compelling
than the proposition that Congress does not intend sub silentio ___ ________
to enact statutory language that it has earlier discarded in
favor of other language.") (citation omitted).
The suggestion that Congress was strengthening the sanction
imposed is reinforced by yet another change. Section 658
included defenses to criminal liability based on reasonableness,
specifying that guilt and punishment would not attach if the
individual charged with sending off an unseaworthy vessel
proves that either he used all reasonable means to
insure her being sent to sea in a seaworthy state, or
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that her going to sea in an unseaworthy state was,
under the circumstances, reasonable and justifiable . .
. .
Elimination of these defenses strikes us as far from
insignificant, contributing to our sense that Congress intended
to clarify and to tighten the obligation of those in control of
vessels to prevent life-threatening accidents.
We thus find no unequivocal statement of legislative intent
that would permit us to insert a limitation where none exists in
the language of section 10908.9
____________________
9 We briefly note two other arguments made in support of
Rivera's position. First, Rivera asserts that the competing
interpretations of section 10908 warrant resort to the rule of
lenity, which "commands that genuine ambiguities affecting a
criminal statute's scope be resolved in the defendant's favor,"
United States v. Bowen, Nos. 96-2289, 90, slip op. at 15 (1st _____________ _____
Cir. Sept. 5, 1997). The rule is triggered only when, "``at the
end of a thorough inquiry, the meaning of a criminal statute
remains obscure,'" Id. (quoting United States v. O'Neil, 11 F.3d ___ _____________ ______
292, 301 n.10 (1st Cir. 1993)). As we have discussed, this is
not such a case. The plain language of section 10908 is not
ambiguous, and the rule of lenity is therefore inapplicable.
Second, the Maritime Law Association of the United States
contends in its amicus brief that the government's interpretation
of section 10908 must be wrong because it will adversely affect
the long-standing right of vessel owners to utilize the
Limitation of Vessel Owner's Liability Act, 46 U.S.C. 181-189.
Under the Act, damages claims against a vessel owner following an
accident may be limited to the value of the vessel and freight on
board if the mishap occurred without the privity or knowledge of
the owner. See generally Hercules Carriers, Inc. v. Claimant ___ _________ _______________________ ________
State of Florida, 768 F.2d 1558, 1563-64 (11th Cir. 1985). ________________
The MLA suggests that the prospect of criminal liability
under section 10908 will chill the use of the Limitation Act out
of fear that an adverse finding under that provision would be
used as prima facie evidence of the crime. The two statutes, _____ _____
however, feature different standards of proof and different
burdens of persuasion; the greater protections accorded criminal
defendants guarantee that a decision against a vessel owner in a
limitation proceeding will not establish a "prima facie" criminal
case under section 10908. Moreover, at least one other criminal
provision involving negligent conduct by ship officers and owners
apparently has existed side-by-side with the Limitation Act for
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(3) An absurd result? It is a common occurrence in the law _________________
that black-and-white principles have an associated set of grey
areas. Such is the case with the plain language rule. Though a
solid anchor of statutory construction, it is not without
exceptions, even in the absence of explicitly contrary
legislative history. We have recognized that a "provision's
plain meaning must govern its application, unless a palpably ______
unreasonable outcome would result," Massachusetts v. Blackstone _____________ __________
Valley Elec. Co., 67 F.3d 981, 986 (1st Cir. 1995) (emphasis _________________
added); see also Sullivan v. CIA, 992 F.2d 1249, 1252 (1st Cir. ___ ____ ________ ___
1993) ("Courts will only look behind statutory language in the
rare case where a literal reading must be shunned because it
would produce an absurd outcome, . . . or when the legislature
has otherwise blown an uncertain trumpet.") (citations omitted).
Rivera contends that this is such a rare case. He asserts
that the imposition of criminal sanctions without the necessary
prerequisites "will convert untold numbers of unsuspecting
persons into prospective criminals," and offers the fact that the
provision has never before been enforced to demonstrate the
injustice of upholding a prosecution that was not preceded by an
administrative finding of unseaworthiness.
Our view, to the contrary, is that the provision is
sufficiently limited in scope to eliminate the specter of
thousands of prosecutions based on wide-ranging claims of
unseaworthiness, and that irrational results will come not from
____________________
some time. See 18 U.S.C.A. 1115 (listing numerous cases). ___
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application of section 10908 in isolation but instead would come
from requiring that the complaint procedure be completed before
the filing of criminal charges. To focus on the many relatively
minor forms of unseaworthiness, as Rivera does in projecting a
flood of prosecutions, is to seize on only a part of the
definition of the crime. The criminal provision requires
knowledge not only that the vessel is unseaworthy but also that
it is afflicted with a defect that is "likely to endanger" life.
Our discussion in Section III, infra, demonstrates that run-of- _____
the-mill unseaworthiness cases will not fall within this embrace.
On the other hand, if growing numbers of individuals are
prosecuted and convicted under the required standard, we see
nothing inconsistent with the apparent safety objective of
Congress.
As for the logic of a civil prerequisite, it seems that an
uneven enforcement of law would result. If the crew and officers
of a vessel were intimidated or unknowing, they might not bring
to light egregious circumstances of unseaworthiness that others
might have discovered and reported. We think it irrational to
posit that a prosecution for the dangerous conduct proscribed by
section 10908 could be barred simply because a ship owner or
other potential defendant was able to prevent a civil proceeding
through deception or strong-arm tactics. The Third Circuit,
faced with a similar question under the Clean Water Act, aptly
observed that "we see no reason why the Government should be
hampered by prerequisites to seeking criminal sanctions under the
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Act. . . . Although continued discharges after notification could
be one way for the government to prove scienter, it is certainly
not the only way to establish willful violations," United States _____________
v. Frezzo Bros., Inc., 602 F.2d 1123, 1126 (3d Cir. 1979).10 __________________
Nor does the novelty of this prosecution suggest to us that
it is unfair or absurd. The prior lack of reported prosecutions
under section 10908 or its predecessor may be a function of the
fact that its coverage is narrow and that other provisions also
reach aspects of the conduct that is actionable under it.
Section 1115 of Title 18, for example, makes it a crime for any
person employed on a vessel, or the owner or charterer of the
vessel, to destroy "the life of any person" through misconduct,
negligence, or inattention to duties. A person who operates a
vessel in a grossly negligent manner "that endangers the life,
limb, or property of a person" commits a misdemeanor under 46
U.S.C. 2302(b). Prosecutors often have a range of statutory
choices in bringing charges, and the historical neglect of
section 10908 and its predecessor, section 658, may reflect only
that it was less obvious than other overlapping statutes because
____________________
10 The defendants in Frezzo Bros. argued that the ____________
Environmental Protection Agency could seek criminal remedies only
after first giving notice of the alleged violations of the act or
instituting a civil action. 602 F.2d at 1124. They also
contended that a "willful" violation of the Clean Water Act could
be established only where a party given notice of its violations
continued polluting. The Third Circuit rejected these
contentions and held that the prosecutorial discretion of the
government was not bound by civil proceedings where "nothing in
the text . . . compels the conclusion that prior written notice,
other administrative or civil remedies are prerequisite to
criminal proceedings under the Act." Id. at 1126. ___
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of its placement at the end of a provision primarily concerned
with administrative procedures. See United States v. Nippon ___ ______________ ______
Paper Indus. Co., 109 F.3d 1, 6 (1st Cir. 1997), petition for ________________ _____________
cert. filed, 65 U.S.L.W. 3839 (U.S. June 13, 1997) (No. 96-1987) ___________
(novel use of a statute is not alone a basis for reversing a
conviction).
In sum, we cannot say that punishing a responsible person
for knowingly sending a vessel to sea in such a condition as to
endanger life is so "palpably unreasonable," Blackstone Valley _________________
Elec. Co., 67 F.3d at 986, "difficult to fathom," United States _________ _____________
v. Indelicato, 97 F.3d 627, 629 (1st Cir. 1996) (citation __________
omitted), or "absurd," Sullivan, 992 F.2d at 1252, as to trump ________
the unvarnished language of section 10908.11
C. Matters for Congressional Attention. ___________________________________
Although we are confident that our conclusion is ordained by
the applicable principles of statutory construction, we recognize
that it has some puzzling ramifications. Section 10908 does not
apply to fishing vessels or yachts, apparently exempts harbor
craft and other vessels that operate only on inland waters
(because they are not being sent "to sea"), and does not reach
____________________
11 We find some support for our judgment that criminal
liability in this context is rational in the court's reference to
section 10908 in Seymore v. Lake Tahoe Cruises, Inc., 888 F. _______ ________________________
Supp. 1029, 1035 (E.D. Cal. 1995). The court there recognized a
wrongful termination cause of action in favor of a captain
terminated for refusing to pilot a vessel he believed was
unseaworthy, posing an unreasonable risk to passengers and crew.
In endorsing the pilot's claim, the court pointed to section
10908 as evidence of the strong public policy at issue. That
court, at least, did not view criminal responsibility for such
life-threatening conduct to be "absurd."
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foreign vessels operating in United States waters. The scheme
thus operates erratically in protecting seamen from dangerous
conditions.
Similar maritime safety statutes cover more territory, but
do not fill in all of the gaps. Section 1115 of Title 18
punishes negligence and misconduct by any "person employed on any
steamboat or vessel" that results in loss of life, and similarly
imposes criminal responsibility on owners, charterers and
inspectors if their fraud, misconduct or neglect leads to a
death. Section 2302 of Title 46 specifies penalties for
endangering life or property through negligent operation of any
vessel in U.S. waters and of U.S.-owned vessels on the high seas.
It would be of value, we think, for Congress to examine this
area of law for the purpose of evaluating whether to make safety
standards more consistent across categories of vessels and in all
locations subject to United States jurisdiction.
III. Sufficiency of the Evidence ___________________________
The second question certified for en banc review is whether __ ____
the government produced sufficient evidence to support the
verdict that Rivera "knowingly" sent the Emily S. to sea in an ________
"unseaworthy" condition "likely to endanger the life of an
individual."12 When assessing a challenge to the sufficiency of
____________________
12 The term "unseaworthy" is not defined within the statute,
and the question was raised at oral argument whether it should be
given a more limited meaning within this criminal context than in
the maritime setting, where it is "essentially a species of
liability without fault," Seas Shipping Co. v. Sieracki, 328 U.S. _________________ ________
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the evidence, "``we review the record to determine whether the
evidence and reasonable inferences therefrom, taken as a whole
and in the light most favorable to the prosecution, would allow a
rational jury to determine beyond a reasonable doubt that the
defendant[] [was] guilty as charged.'" United States v. ______________
Sullivan, 85 F.3d 743, 747 (1st Cir. 1996) (quoting United States ________ _____________
v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993)). ___________
The original panel opinion noted that a "painstaking review
of the record" had taken place, and we again have read the trial
transcript in its entirety. Although we remain convinced that
the jury had ample evidence upon which to base its finding that
Rivera knowingly sent an unseaworthy vessel to sea, we do not
have the same conviction with respect to the final element of
section 10908, knowledge that the unseaworthiness was such that
it would likely endanger life. We therefore begin our analysis
by repeating essentially verbatim the panel's discussion of
unseaworthiness, and then proceed to explain why the evidence of
likely to endanger was insufficient to support the conviction.
A. Knowingly sending a vessel to sea in an unseaworthy ________________________________________________________
condition _________
____________________
85, 94 (1946). Because we believe the mens rea requirement ____ ___
("knowingly") and the "likely to endanger the life of an
individual" element serve to sharply limit prosecutions under the
provision, we see no reason to depart from the common usage of
the term. We therefore understand an "unseaworthy" vessel to be
one not properly outfitted or safe for a voyage at sea. See The ___ ___
Random House Dictionary of the English Language 1728 (2d ed. _______________________________________________
unabridged 1987).
-18-
We note at the outset that Rivera had many years of
experience in the tug and barge industry, having served with a
major tug and barge company in Puerto Rico prior to his
employment with the Bunker Group. In addition, the record is
replete with instances indicating that Rivera was informed before
the fateful voyage of the precarious condition of the tow wire:
-- Roy McMichael, the captain of the tugboat, testified
that before the vessel set out, he raised with Rivera the
condition of the wire, the need for its replacement, and the
difficulty of getting the repair performed due to the holiday.
-- Victor Martinez, who served as a mate on the voyage,
testified that he had discussed with Rivera that "the conditions
[sic] of the wire were not too favorable."
-- Yaacov Eisak, who served as the tugboat engineer on the
Emily S., testified that in December 1993 or early January 1994, ________
he had "about two" conversations with Pedro Rivera, in which he
joked with him that "we should get some bait and we can catch
some fish with so many hooks what [sic] we were having on the
wire."13
-- Leonard Furmanski, who had previously served as an
engineer on the Emily S. when she experienced a prior separation ________
of the wire as the boat left Guayanilla in August 1993, testified
that on his return to San Juan, he told Rivera that it was time
to replace the wire.
____________________
13 When tow wires deteriorate, short sections of wire split
off and protrude in what are colloquially known as "fish hooks."
-19-
-- Danny Kehoe, who alternated with McMichael as the
captain of the tugboat, and who was at the helm during the
Guayanilla parting, testified that he told Rivera "at least six,
seven times" that the towing wire needed to be replaced, and he
made an entry in the boat's logbook on December 8, 1993 that the
cable required replacing and that he had so informed Rivera.
Kehoe testified that he had made this entry because he thought
Rivera was not taking him seriously.
The jury also heard expert evidence on the subject of the
wire's condition. The government presented the testimony of
Glenn Hargrave, a tugboat captain, who testified that it was his
opinion, based on his review of the Coast Guard report, the FBI
report and its accompanying photographs, and on his examination
of the wire itself,14 that the wire was not fit for towing
operations as of the date of the accident. FBI Special Agent
Tobin characterized the "embrittled" and "deteriorated" wire as
"a disaster waiting to happen."
Faced with this evidence of the wire's condition and the
multiple warnings about the need to replace it, as well as
evidence of Rivera's extensive experience in this field, we
cannot say that there was insufficient evidence presented to
support the jury's conclusion that Rivera knowingly sent a vessel
to sea in an unseaworthy condition. We recognize that there was
____________________
14 Specifically, Hargrave pointed to the large number of
"fish hooks" on the wire, the severe corrosion of the wire, and
the lack of flexibility of the wire, as indicating its lack of
fitness for towing service on January 6, 1994.
-20-
competing evidence. Rivera's expert, for example, a specialist
in metallurgy, testified that the cable was strong enough to tow
the load on the day of the accident. Some evidence also showed
that Rivera consulted with Captain McMichael and another
experienced captain, George Emanuel, about whether to make and
continue the voyage without first replacing the tow wire.
The jury, however, was entitled to discount Rivera's expert
in light of the other testimony, and could have found on this
record that Rivera decided to go ahead with the voyage not
because he believed the vessel was seaworthy but because he
thought he could get by with one more trip using the seriously
deteriorated wire. Section 10908 seems designed for precisely
this sort of situation, imposing liability when an individual
deliberately fails to take remedial measures for pragmatic
reasons, at the expense of safety. We therefore hold that the
evidence was sufficient for the jury to find that Rivera knew
that the Emily S. was unseaworthy. ________
B. "Likely to Endanger" ____________________
We now revisit the question of whether there was sufficient
evidence for a jury to find that Rivera knew the tug's condition
was "likely to endanger the life of an individual."
In so doing, we face two conflicting constraints. The first
is that, as in all criminal appeals by defendants, we must give a
great deal of deference to the evidence adduced in favor of the
government. The second is that we must be vigilant in preventing
any slackening of a standard that Congress saw fit to require as
-21-
the necessary predicate of the ultimate sanction of criminal
liability.
In a prosecution of this nature, there is an inherent hazard
in the necessity of two juxtaposed jury findings, one involving
knowledge of unseaworthiness, and the other knowledge of
likelihood of such unseaworthiness endangering life. Unless
courts remain acutely aware that the prosecutor bears separate
burdens on these two issues, there is a lively danger that, once
a jury has found not only that an unseaworthy condition existed,
but also that a defendant knew of that condition, it could
quickly be impressed by the possibility of any number of life
threatening events. A slippery deck, a malfunctioning winch, or
poor stowage all can lend themselves to fatal scenarios. There
is very little that can go wrong at sea without some risk to
human life.
But the test is not "possibility" or "some risk." It is of
a significantly higher order, "likely to endanger life." Not
only do logic and the need to avoid watering down the
prerequisite to criminal liability support this statement, but
also the common understanding of the word "likely." At times,
dictionary definitions give mixed signals, or are opaque or
otherwise less than compelling indicia of legal meaning. But the
definitions of the adverb "likely" are consistent, clear and
strong: in one dictionary the meaning is simply "probably," see ___
The Random House Dictionary of the English Language 1114 (2d ed. ____________________________________________________
unabridged 1987); in another, the meanings are "in all
-22-
probability" and "probably," see Webster's Collegiate Dictionary ___ _______________________________
674 (10th ed. 1993).
In the context of this statute imposing criminal liability,
we think that there must be sufficient evidence of a (known)
defect that poses a very substantial threat to life. This is not
a mathematical formula. It is not a "more probable than not"
test. The prosecution should not have to prove that the chances
of surviving such a defect are less than fifty percent. But the
threat should be one that, objectively viewed, poses an
unacceptable risk to an individual. It seems to us that
instances of loss of life beyond the rare or bizarre, or a
condition so inherently life threatening that it needs no record
of experience, must be shown.
In this case, the evidence falls significantly below
anything approaching these showings. The government's evidence
of the danger posed by a broken tow wire was entirely
speculative. The most dramatic testimony -- Captain Hargrave's
assertion that an individual on deck could be cut in half by a
wire snapping back like a rubber band after it breaks -- was
unsupported by any evidence that such an accident ever had
occurred. Captain Robert Ross of the Coast Guard described a
series of dangers attributable to a barge breaking loose from a
tugboat, but his testimony failed to establish that these were
other than a worst case scenario. There was no evidence that
such dire consequences could be expected more than infrequently
when a wire parted.
-23-
In fact, witness after witness testified to experiences with
cable partings, but none reported any resulting human injury.
Captain McMichael's testimony that the wire hit him after he
repaired it, "knock[ing] the wind out of me a little bit,"
obviously falls short of meeting a "likely to endanger life"
standard. Similarly, Captain Ross's description of the dangers
associated with the effort to contain this particular oil spill
do not demonstrate that a deteriorated tow wire is a danger to
human life. Indeed, the evidence indicated that the damage that
did occur was the result of aberrant circumstances. The
testimony was that a proper repair the first time probably would
have prevented the second parting, and that the barge remained
adrift and eventually went aground after the second break because
crew members were not following prescribed procedures for
operating the tugboat. Rivera can not be charged with
anticipating such events.
The government's evidence, in sum, showed only that the
parting of a tow wire could pose a serious risk to human life. _____
This is inadequate to prove that Rivera violated section 10908 by
sending a vessel to sea knowing that its unseaworthy condition
was likely to endanger life. ______
IV. Conclusion __________
Having concluded that the plain language of section 10908
permitted this prosecution of appellant Rivera without a prior
finding of unseaworthiness, but that the evidence presented at
-24-
trial failed to prove an essential element of the charged crime,
we reverse the conviction.
Concurrence follows.
-25-
TORRUELLA, Chief Judge (Concurring). Even though the TORRUELLA, Chief Judge (Concurring). ____________
majority's limited interpretation of 46 U.S.C.A. 10908 (Supp.
1997 - Title 46 Partial Revision) goes far in reducing the
potential for disrupting the maritime industry that was portended
by the government's and district court's interpretation of that
statute, I cannot join the majority without reservation. I write
separately because, with respect, I believe my colleagues are in
error in declaring that prosecutions under section 10908 may be
instituted without a prior finding of unseaworthiness pursuant to
the procedures set forth in Chapter 109, 46 U.S.C.A. 10901-08.
This interpretation improperly excises section 10908 from the
statutory scheme of which it is a part and runs contrary to the
legislative intent that guided the recodification of these safety
regulations. Most importantly, the majority's views are
counterproductive to the remedial ends pursued by Chapter 109.
Section 10908 is the ultimate sanction for a violation of
the procedures set forth in Chapter 109. When a vessel appears
to be unfit to be sent to sea, its chief and second mates, or the
majority of its crew, may file a complaint with the vessel's
master before the vessel leaves the harbor. 10902. The master
then applies to a district court for appointment of independent
surveyors, id., whereupon they file a report with the court. ___
10903(a). The court then rules whether the vessel is fit to
proceed on the voyage. 10903(h). If deficiencies are found
and corrected, the crew must proceed on the voyage or forfeit
their unpaid wages. 10904. If deficiencies are found but not
-26-
corrected, and the ship is in a foreign port, a seaman may
request to be discharged and is entitled to one month's pay in
addition to wages owed. 10906. Furthermore, if deficiencies
of such gravity "that [they are] likely to endanger the life of
an individual" are found and not corrected, and the vessel is
nevertheless sent to sea, criminal sanctions may be imposed.
10908.
The majority, however, contends that section 10908 is a
criminal sanction of general applicability that is unconnected to
the Chapter 109 procedures. My colleagues begin and end their
analysis of section 10908 by relying on the maxim of statutory
interpretation that when the "plain meaning" of a statute "is
clear on its face, the sole function of the courts is to enforce
it according to its terms." Ante at 4. They argue that we are ____
bound by this "plain meaning" or "plain language" canon to
interpret section 10908 without reference to Chapter 109's
procedures.
As the majority acknowledges, ante at 7, precedent from both ____
the United States Supreme Court and this Circuit establishes that
the "plain language" rule requires the examination of a statute's ________
textual context. See Conroy v. Aniskoff, 507 U.S. 511, 515 ___ ______ ________
(1993) (the "cardinal rule [is] that a statute is to be read as a
whole . . . , since the meaning of statutory language, plain or
not, depends on context"); Skidgel v. Maine Dept. of Human _______ ______________________
Services, 994 F.2d 930 (1st Cir. 1993). Nevertheless, my ________
brethren "find no aid to construction in the provisions
-27-
surrounding section 10908" because in this case "the relevant
'context' is subject to different interpretations." Ante at 7. ____
Thus, "[t]aking section 10908 at face value, without limitations,
avoids any uncertainty." Ante at 8. ____
I disagree with my colleagues' appraisal of the usefulness
of context in this case. Although the language of section 10908
is plain, its meaning can only be determined by reference to the
text of the surrounding provisions. The majority implicitly
concedes the point when it notes that "Section 10908 does not
apply to fishing vessels or yachts." Ante at 16. It arrives at ____
this conclusion, not from any language found in section 10908,
but rather from the text of the first section of Chapter 109,
which reads: "This chapter applies to a vessel of the United _______
States except a fishing or whaling vessel or yacht." 46 U.S.C.A.
10901 (Emphasis supplied.) It is not an insignificant
coincidence that sections 10901 and 10908 were both extracted
from former section 658. Thus, the need to refer to section
10901 to interpret the "plain language" of section 10908 suggests
that Chapter 109 is to be read and applied cohesively.
The placement of section 10908 within Chapter 109 is in
itself a telling sign. Chapter 109, entitled "Proceedings on
Unseaworthiness," is located within Part G, "Merchant Seamen
Protection and Relief," of Subtitle II of Title 46. The
provisions of Part G form an interlocking whole and are
exclusively concerned with regulating the relationship between
seamen and the masters and owners of the vessels in which they
-28-
set out to sea. Thus, the placement of a generally-applicable
criminal statute anywhere within Part G, let alone within Chapter
109, would have made little sense.15
Similarly, Part G codifies many of the requirements covered
by the traditional warranty of seaworthiness.16 Indeed, a vessel
____________________
15 In contrast, the other two statutes under which the
government could have proceeded in this case are located in much
more appropriate contexts. Thus, 46 U.S.C.A. 2302(b), which
makes it a misdemeanor to operate a vessel in a grossly negligent
manner, appears in Title 46, Subpart II, Part A - General
Provisions, Chapter 23 - Operation of Vessels Generally.
Similarly, 18 U.S.C.A. 1115 (Supp. 1997), which makes it a
felony when the negligence of a ship's officer results in the
loss of human life, appears in the United States Criminal Code.
Sections 2302(b) and 1115 are also much broader in scope than
section 10908. The former are both applicable to all vessels in
U.S. waters, whether inland or coastal, and whether sailing under
U.S. or foreign flags. Section 10908, on the other hand,
excludes foreign vessels, fishing vessels, and yachts, as well as
other vessels operating in harbors and inland waters, which makes
sense only for a statute concerned exclusively with seamen.
The majority admits to being puzzled by the limited scope of
section 10908, and recommends that Congress consider making
"safety standards more consistent across categories of vessels
and in all locations." Ante at 16. The apparent inconsistency ____
disappears under my reading of the statute. Thus, the exclusion
of foreign vessels follows from the fact that Part G's provisions
apply only to vessels sailing under the United States flag. It
is also understandable that fishing vessels, harbor vessels,
private yachts, and vessels on inland waterways are excluded from
section 10908. Such vessels are excluded from most of the
provisions of Part G because they usually set out to sea only for
short voyages, rendering unnecessary the detailed statutory
scheme established by Part G for seamen going out to sea on
intercoastal or ocean voyages.
16 The warranty of seaworthiness provides that the owner of
a vessel owes an absolute duty to seamen to provide a ship's
hull, gear, appliances, ways, and appurtenances which are
reasonably fit for their intended purpose, Mitchell v. Trawler ________ _______
Racer, Inc., 362 U.S. 539 (1960), as well as to appoint a ___________
competent master and a crew adequate in their number and
competent for their duty, Usner v. Luckenbach Overseas Corp., 400 _____ _________________________
U.S. 494 (1971).
-29-
is unseaworthy in precisely the same circumstances in which, for
purposes of section 10902, it is unfit to proceed on its intended
voyage. Consequently, the reference in section 10908 to
unseaworthiness can only be interpreted in the light of the other
provisions of Chapter 109 and Part G.
Reading Chapter 109 as a whole reveals why, as admitted by
the government, there has never been a criminal prosecution
pursuant to either section 10908, or its predecessor statute,
section 658. See Appendix. The goal of Chapter 109 is to ___
correct unseaworthy conditions before they pose a serious danger ______
at sea. Section 10908 serves as a deterrent, providing seamen
with the leverage to force their vessel's master to comply with
Chapter 109. Sections 658 and 10908 have never been used
because, once the court-appointed marine surveyors have found a
vessel to be unseaworthy, only the most reckless of masters would
insist on setting out to sea without first repairing the vessel.
Moreover, the master may not even be able to set out to sea in
the face of such a finding because the seamen may choose to
remain on land and receive one month's wages as severance pay.
10906. Unfortunately, my brethren's insular interpretation of
section 10908 replaces the corrective focus of Chapter 109 with a
punitive one, since civil sanctions cannot be imposed unless the
civil complaint procedures are followed, while criminal sanctions
are always available.
An examination of section 10908's predecessor statute, 46
U.S.C.A. 658 (1958), establishes even more clearly that the
-30-
civil procedures of Chapter 109 must be initiated before section
10908 may be invoked. In 1983, Congress recodified much of the
law as to seamen, and in doing so split section 658 into sections
10901, 10906, and 10908. Pub. L. No. 98-89 (1983). Section 658
established the penalties that would attach if court-appointed
inspectors were to find a vessel unseaworthy in some respect.
The inclusion of both civil and criminal penalties within the
same section was a clear indicator that the criminal penalties
were the ultimate sanction for violations discovered pursuant to
the civil complaint procedures.
Section 10908 should be understood in the context of
section 658 because no substantive change was intended to result
from the recodification, as is evident from the history of Public
Law 98-89. See H.R. Rep. No. 98-338 (1983), reprinted in 1983 ___ _________ __
U.S.C.C.A.N. 924. House Report No. 98-338 states that:
The ultimate aim of this legislation is three fold: to
make maritime safety and seaman protection law easier
for the Coast Guard to administer, to make it less
cumbersome for the maritime community to use, and to
make it more understandable for everyone involved.
Id. at 113, 1983 U.S.C.C.A.N. at 925. During the hearings held ___
by the House, an interesting exchange took place between
Congressman Studds of Massachusetts, and Admiral Lusk of the
Coast Guard, the agency entrusted with enforcing the statute:
Mr. Studds: Some have expressed concern that this ___________
recodification may prompt a series of long and
expensive court cases initiated for the purpose of
testing the judicial interpretation of terms and
concepts contained in the revised law. Do you see any
risk that this sort of scenario might unfold as a
result of the enactment of this bill?
-31-
Admiral Lusk: I don't think so sir. I understood that ____________
it was to be made so clear everywhere that we weren't
trying to make any substantive changes of a
controversial nature.
Hearings of H.R. 2247, Subcommittee on Coast Guard and
Navigation, House Committee on Merchant Marine and Fisheries, 98
Cong., 1st Sess. at 455 (Add. p. 1). This is confirmed by the
Report that accompanied this recodification, which stated:
Although the Committee realized that many substantive
changes would inevitably be made in any effort to
simplify and modernize the maritime safety laws, it
intended to make no changes that would prove to be
detrimental to or adversely impact upon the industry
governed by these laws. More specifically it sought to
insure that this bill not take away any existing
rights, benefits or privileges from any person, nor
place any greater duties or obligations on any person.
H.R. Rep. No. 338, 98th Cong., 1st Sess. at 118-119 (1983) (Add.
pp. 11-12). Thus, Congress simply took the then-existing
legislation and rearranged it in a more comprehensible manner.
Id. The "plain meaning" rule does not govern recodification ___
statutes such as Pub. L. No. 98-89. As the Report correctly
points out, in the usual kind of amendatory legislation, "a
change of language is intended to change substance. In a
codification statute, however, the courts uphold the contrary
presumption: no change in law is intended unless clearly
expressed." Id. at 118-119 (Add. at 11-12). The Supreme Court ___
has held in numerous cases that:
[T]he change of arrangement, which placed portions of
what was originally a single section into separated
sections cannot be regarded as altering the scope and
purpose of the enactment. For it will not be inferred
that Congress in revising and consolidating the laws
intended to change their effect, unless such intention
is clearly expressed.
-32-
Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 227 ________________ __________________________
(1957) (citing United States v. Ryder, 110 U.S. 729, 740 (1884)); _____________ _____
see Finley v. United States, 490 U.S. 545, 553-55 (1989); Mu iz ___ ______ _____________ _____
v. Hoffman, 422 U.S. 454, 467-74 (1975); Tidewater Oil Co. v. _______ __________________
United States, 409 U.S. 151, 162 (1973); Anderson v. Pacific _____________ ________ _______
Coast S. Co., 225 U.S. 187, 198-199 (1912). Since the House _____________
Report does not even discuss the purported change in the law
urged by the government, let alone clearly express an intent to
enact such a change, one may safely conclude that no substantive
change in this section was ever intended.
Furthermore, we should be guided by our own precedent that
counsels examination of statutes as a whole, and that due weight
be given "to design, structure and purpose as well as to
aggregate language." O'Connell v. Shalala, 79 F.3d 170, 176 (1st _________ _______
Cir. 1996) (citation omitted); United States v. Falvey, 676 F.2d _____________ ______
871 (1st Cir. 1982). Falvey involved a prosecution for ______
possession of counterfeit foreign coins under a statutory scheme
first enacted in 1877 but extensively rephrased in 1965. 18
U.S.C. 185. Until 1965, the statute's scope had been limited,
to foreign coins in actual use and circulation as money within
the United States. However, because the 1965 version of the law
simply made it a felony to counterfeit silver coins, the
government sought to apply the statute to counterfeit foreign
currency that was not either in actual use or circulation in the
United States.
-33-
This court rejected the government's contention, which was
principally based on minor references to section 185 in the
legislative history. Speaking for this court, Judge Campbell
said:
From this slender reed, the government constructs its
argument that in 1965, Congress intended, in a minor
provision of an act with an entirely different purpose,
to make a major change in a statute dating back to
1806. We cannot accept such an argument.
. . . [I]n the complete absence of any evidence that
the wording was aimed at bringing about substantive
changes other than the one expressly reflected in the
legislative history, the most plausible explanation of
the revised phraseology is that it was simply intended
to eliminate the awkwardness of expression that was
introduced in 1877 and carried through the 1948
version. The draftsman, we surmise, merely sought to
"clean up the language" - falling into the trap, as can
easily occur where statutory language is rephrased, of
unintentionally suggesting a substantive change. In
light of the history of this statute and the absence of
any indication of an intention in 1965 to change its
scope, it would be anomalous to read the amended
statute as broader in coverage than its predecessors .
. . Cases construing changes in statutory language tend
to rely in part on evidence of congressional intent or
at least attention to the change in deciding whether to
give the change its literal effect . . . In the absence
of these factors, courts are not bound to read a
statute literally in a manner entirely at odds with its
history and apparent intent.
676 F.2d at 875.
My colleagues view the legislative history in this case as
sending "mixed signals," ante at 9, with some of it suggesting ____
that the purpose of the legislation was simply to recodify the
then-existing law, with no changes intended, and other parts
indicating that "[t]he bill . . . [did] in fact make a great many
substantive changes to the present law . . . [which] should be
understood . . . [as] intended by the [Congress]." See H.R. Rep. ___
-34-
No. 98-338 at 113, 1983 U.S.C.C.A.N. at 925. They further quote
from that Report to the effect that neither logic nor case law
"mandate . . . reliance on legislative history to reach a result
contrary to the plain meaning of the statute." Id. at 120, 932. ___
These references miss the point. They are only applicable
to substantive changes in Chapter 109. Can it be seriously ___________
argued that merely moving text from section 658 to a separate
section, section 10908, with virtually identical language,
constitutes a substantive change in that statute? With due ___________
respect, I think not.17 See Finley, supra; Fourco Glass Co., ___ ______ _____ _________________
supra; Mu iz, supra; Falvey, supra. In fact, those provisions of _____ _____ _____ ______ _____
Chapter 109 that are substantive changes from the prior statute
are readily apparent from a comparison of both laws. See ___
Appendix. One of these is the section immediately preceding
section 10908, 10907, which prohibits a master from impeding a
seaman from making "a complaint authorized by this chapter," and
provides a civil penalty for such conduct. Section 10907 does
not appear in the old text.
Thousands of vessels take to sea every day throughout the
United States, and surely many of them do so in an "unseaworthy
state that is likely to endanger the life of an individual." The
fact that there has been no prior invocation of either section
____________________
17 The case relied upon by the majority, United States v. _____________
Frezzo Bros., Inc., 602 F.2d 1123 (3d Cir. 1979), is inapposite. __________________
The Third Circuit was there faced with the task of interpreting
the Clean Water Act. That statute, 33 U.S.C. 1251, et seq., _______
which is of relatively recent vintage (1972), contains neither
procedures similar to those in Chapter 109, nor is it the result
of a recodification scheme.
-35-
658 or section 10908 thus casts further doubt on the view that
Congress by this recodification intended to enact a major change
in the maritime law, without making any specific statement to
that effect. Although I would be the last to condone sending an
unseaworthy vessel to sea, and sincerely hope that deliberate
environmental damage does not go unpunished, the imposition of
criminal sanctions under the present circumstances constitutes a
radical departure from what has been the custom and practice in
the maritime world to the present time.
Notwithstanding that the majority's holding on the
sufficiency of the evidence ameliorates the impact of this new
interpretation of the statute, it nonetheless poses a substantial
threat of converting untold numbers of unsuspecting persons into
prospective felons. Although Congress could very well enact a
statute with the reach envisioned by the majority, I am hard
pressed to accept such a significant break with the past,
particularly where criminal sanctions are at stake, absent a
clear indication that such construction is the intended result of
what appears to be a mere reshuffling of a longstanding maritime
safety statute. See Falvey, supra. ___ ______ _____
Finally, the fact that the interpretations of section 10908
proposed by Rivera and the government are "both . . . consistent
with what [the majority] see[s] as the overall purpose of the
legislation," ante at 7, should at the very least suffice to ____
trigger the operation of the rule of lenity, which "commands that
genuine ambiguities affecting a criminal statute's scope be
-36-
resolved in the defendant's favor," ante at 11 n.8 (quoting ____
United States v. Bowen, Nos. 96-2289, 90, slip. op. at 15 (1st _____________ _____
Cir. Sept. 5, 1997)). The majority refuses to apply the rule
because "[t]he plain language of section 10908 is not ambiguous." ______________
Ante at 11 n.8 (emphasis added). However, in applying the rule ____
of lenity the inquiry is not whether the language of the statute
is plain, but rather whether its meaning is clear. See United _______ ___ ______
States v. O'Neill, 11 F.3d 292, 301 n.10 (1st Cir. 1993) (the ______ _______
rule is applicable when "at the end of a thorough inquiry, the
meaning of a criminal statute remains obscure") (emphasis added). _______
The meaning and scope of section 10908 can hardly be described as
unambiguous when, as the majority admits and this concurrence has
shown, it remains subject to two reasonable but competing
interpretations. Thus, if Congress accepts the majority's
invitation to look into this matter, ante at 16, I also suggest ____
that it define unambiguously the nature of the relationship
between Chapter 109's civil and criminal provisions.
-37-
Appendix: A Comparison of Provisions Appendix
Predecessor Statute: Current Chapter 109: Predecessor Statute: Current Chapter 109:
46 U.S.C. 653-658 "Proceedings on 46 U.S.C. 653-658 "Proceedings on
Unseaworthiness," Unseaworthiness,"
46 U.S.C. 10901-10908 46 U.S.C. 10901-10908
653: Complaint that 10901: Application. ____________________ ___________
V e s s e l i s ____________________
Unseaworthy. "This chapter applies to a ___________
vessel of the United
"If the first and second States except a fishing or
officers under the master whaling vessel or yacht."
or a majority of the crew
of any vessel bound on any 10902: Complaints of ___________________
voyage shall, before the unfitness. _________
vessel shall have left the
harbor, discover that the "(a)(1) If the chief and (a)(1)
vessel is too leaky or is second mates or a majority
otherwise unfit . . . to of the crew of a vessel
proceed on the intended ready to begin voyage
voyage, and shall require discover, before the
such unfitness to be vessel leaves harbor, that
inquired into, the master the vessel is unfit . . .
shall, upon the request of to proceed on the intended
the first and second voyage and require the
officers under the master unfitness to be inquired
or such majority of the into, the master
crew, forthwith apply to immediately shall apply to
the judge of the district the district court of the
court of that judicial United States at the place
district . . . for the at which the vessel is
appointment of surveyors, located . . . for the
as provided in section 654 appointment of surveyors.
of this title, taking with At least 2 complaining
him two or more of the seamen shall accompany the
crew who shall have made master to the judge or
such request . . . . [A]ny justice of the peace.
master refusing to comply (2) A master failing to (2)
with these provisions comply with this
shall be liable to a subsection is liable to
penalty of $500. This the United States
section shall not apply to Government for a civil
fishing or whaling vessels penalty of $500."
or yachts."
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654: Proceedings on 10903: Proceedings on _____________________ ______________
examination of examination of _____________________ ______________
vessel. vessel. ______ ______
"The judge, or justice, in "(a)On application under "(a)
a domestic port, shall, section 10902(a) of this
upon such application, title, the judge or
issue his precept, justice of the peace shall
directed to three persons appoint 3 experienced and
in the neighborhood, the skilled marine surveyors
most experienced and to examine the vessel for
skillful in maritime the defects or
affairs that can be insufficiencies complained
procured . . . . It shall of . . . . The surveyors
be the duty of such shall make a report in
surveyors to repair on writing . . . stating
board such vessel and to whether the vessel is fit
examine the same in to proceed to sea, and, if
respect to the defects and not, in what respect it is
insufficiencies complained unfit, making appropriate
of, and make reports to recommendations . . . .
the judge . . . in writing (b) On receiving the (b)
. . . whether in any or in report, the judge or
what respect the vessel is justice shall endorse on
unfit to proceed on the the report the judgment of
intended voyage . . . . the judge or justice on
[U]pon such report the whether the vessel is fit
judge or justice shall to proceed on the voyage .
adjudge and shall indorse . . .
on his report his judgment (c) The master shall pay (c)
whether the vessel is fit all costs of the survey .
to proceed on the intended . . .
voyage, and, if not, (d) A master of a vessel (d)
whether such repairs can violating this section is
be made or deficiencies liable to the United
supplied . . . . The States Government for a
master or commander shall, civil penalty of $100 . .
in the first instance, pay . ."
all costs of such a review
. . . ."
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655: Refusal to proceed 10904: Refusal to ____________________ ___________________
when vessel found proceed. ____________________ _______
seaworthy. _________
"After a judgment under
"If, after judgment that section 10903 of this
such vessel is fit to title that a vessel is fit
proceed . . . [or after to proceed . . . or after
performing the directed the order of a judgment to
alterations] the seamen, make up deficiencies is
or either of them, shall complied with, if a seaman
refuse to proceed on the does not proceed on the
voyage, he shall forfeit voyage, the unpaid wages
any wages that may be due of the seaman are
him." forfeited."
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656: Appointment of 10905: Complaints in ____________________ _____________
inspectors by consul foreign ports. ____________________ _____________
in foreign port. _______________
"(a) When a complaint (a)
"Upon a complaint in under section 10902(a) of
writing, signed by the this title is made in a
first and second officers foreign port, the
or a majority of the crew procedures of this chapter
of any vessel, while in a shall be followed, with a
foreign port, that such consular officer
vessel is in an unsuitable performing the duties of
condition to go to sea . . the judge or justice of
. the consul shall cause the peace.
to be appointed three (b) On review of the (b)
persons of like marine surveyors' report,
qualifications with those the consular officer may
described in section 654 approve and must certify
of this title, who shall any part of the report
proceed to examine into with which the officer
the cause of the complaint agrees. If the consular
and who shall proceed to officer dissents from any
be governed in all their part of the report, the
proceedings as provided by officer shall certify
said section." reasons for dissenting
from that part."
657: R e p o r t o f ____________________
inspectors. __________
"The inspectors appointed
by any consul, in
pursuance of section 656
of this title, shall have
full power to examine the
vessel . . . .[I]f, upon a
view of the whole
proceedings, the consul is
satisfied therewith, he
may approve the whole or
any part of the report,
and shall certify such
approval; or if he
dissents, he shall certify
his reasons for
dissenting."
-41-
658: Discharge of crew on 10906: Discharge of crew ____________________ ___________________
a c c o u n t o f for unsuitability. ____________________ _________________
unseaworthiness; ________________
penalty for sending "When a survey is made at ____________________
unseaworthy vessel a foreign port, the ____________________
to sea. surveyors shall state in ______
the report whether, in
"The inspectors [shall their opinion, the vessel
state whether] the vessel had been sent to sea
was sent to sea unsuitably unsuitably provided in any
provided in any important important particular, by
or essential particular, neglect or design or
by neglect or design, or through mistake or
through mistake or accident. If by neglect
accident; and in case it or design, and the
was by mistake or design, consular official approves
and the consular officer the finding, the officer
approves of such finding, shall discharge a seaman
he shall discharge such of requesting discharge and
the crew as request it, shall require the master
and shall require the to pay one month's wages
payment by the master of to that seaman in addition
one month's wages of each to wages then due, or
seaman over and above the sufficient money for the
wages then due . . . . But return of the seaman to
if in the opinion of the the nearest and most
inspectors the defects or convenient port of the
deficiencies found to United States, whichever
exist have been the result is the greater amount."
of mistake or accident,
and could not, in the 10907: Permission to make ___________________
exercise of ordinary care, complaint. _________
have been known and
provided against before "(a) A master may not (a)
the sailing of the vessel, refuse to permit, deny the
and the master shall in a opportunity to, or hinder
reasonable time to remove a seaman who wishes to
or remedy the causes of make a complaint
complaint, then the crew authorized by this
shall remain and discharge chapter.
their duty. If any person (b) A master violating (b) _____________
knowingly sends or this section is liable to __________________________
attempts to send or is the United States for __________________________
party to the sending or civil penalty of $500." __________________________
attempting to send an __________________________
American ship to sea, in 10908: Penalty for __________________________ ___________________
the foreign or coastwide s e n d i n g __________________________ _____________
trade, in such an unseaworthy vessel __________________________ ___________________
unseaworthy state that the to sea. __________________________ ______
life of any person is __________________________
likely to be thereby "A person that knowingly ____________________
-42-
Document Info
Docket Number： 96-2188
Filed Date： 5/1/1997
Precedential Status： Precedential
Modified Date： 3/3/2016