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Gard News 187 - The ZIM MEXICO III incident and the trial of Captain Schroeder

 



By Michael Chalos and Eugene O'Connor
Chalos, O'Connor & Duffy, LLP., Port Washington, New York


Gard News reported on Captain Wolfgang Schroeder’s unfortunate arrest in the US in several previous issues of Gard News as events unfolded.1 In this article Michael Chalos and Eugene O’Connor provide an account of the entire episode.

On 1st March 2006, the M/V ZIM MEXICO III entered the Port of Mobile, Alabama under the command of Captain Wolfgang Schroeder. The following day, the vessel completed cargo operations and attempted to depart the Port of Mobile. The vessel at the time was berthed port side with the bow facing up river.

In order to transit the channel out of the port, the vessel needed to be turned 180 degrees in the river off the berth. Captain Schroeder discussed the situation with the bar pilot. They both agreed that the vessel could be turned without tug assistance. A tug had always been used on prior occasions to turn this vessel when coming into the berth, which is a slightly more difficult manoeuvre than leaving the berth. However, in this instance, the pilot and master agreed that the manoeuvre could be accomplished without the use of a tug, even though there were tugs in the area at the time.

At trial, the pilot testified that he asked the master if his bow thruster was working properly before he made the decision not to call for a tug. He claimed that he was told by Captain Schroeder that it was working properly. Because Captain Schroeder invoked his 5th Amendment rights and did not take the stand, the pilot’s testimony was left un-rebutted.

The vessel encountered difficulties completing the U-turn in the river and began to drift towards the terminal. In the course of manoeuvring, the vessel’s bow thruster failed. As a result, the bow of the vessel allided with a shoreside crane causing the crane to collapse into the terminal area, crushing electrician Shawn Jacobs and causing his death.2

About a month after the incident occurred, the government arrested Captain Schroeder in Houston, Texas. He was released on bail and ordered to Mobile, Alabama to stand trial in the US District Court for the Southern District of Alabama. The government alleged that the negligence or inattention to duties of Captain Schroeder resulted in the death of Mr Jacobs. On the basis of such allegation, the government obtained a one count indictment charging Captain Schroeder under 18 U.S.C. § 11153 (commonly referred to as the Seaman’s Manslaughter Statute).

The basis for the criminal action was developed by Coast Guard investigators in certain interviews of the master and ship’s officers that were represented to be for civil penalty investigations in which no “Miranda warning” (constitutional right against self-incrimination, i.e., the right to remain silent) was given.

Typically, courts do not permit a criminal case to be developed under the pretext of a civil investigation. Notwithstanding the fact that the Coast Guard investigators misrepresented the nature of the investigation in these interviews, the court declined to suppress these statements because it determined that “[t]here is no indication that CGIS had at that time targeted defendant or had any reason to believe that defendant had acted criminally.”

In the course of pre-trial motions, the judge ruled, on the basis of a prior holding in a 5th Circuit case involving the death of a tug captain’s wife while he was high on drugs,4 that the standard of proof under the statute was “simple negligence” as opposed to “gross negligence”, which is the customary minimum proof standard in criminal cases. At the close of the trial, the judge also instructed the jury, in essence, that the captain of a vessel, under the applicable Code of Federal Regulations provisions, is responsible for the negligence of all his subordinates on the vessel, including the pilot. These two rulings, of course, made the defence of the matter nearly impossible. The trial of Captain Schroeder began on 4th October 2006 and on 12th October 2006 concluded with the jury returning a verdict of guilty as to the sole charge in the indictment, a violation of 18 U.S.C. § 1115.

The jury during their deliberations did send out two significant notes which ultimately, it is believed, influenced the judge’s sentencing decision. The first note asked whether, if the jury concluded that the negligence of the pilot caused the accident, such conclusion would give them sufficient grounds to find that the government failed to prove their case “beyond a reasonable doubt”. The judge in response referred them back to her previous instructions regarding the Code of Federal Regulations responsibility of the master. The second note asked if they could write on the verdict sheet that they found the Captain guilty of “negligence”, meaning, of course, “simple negligence”, the standard on which they had been previously instructed. The judge directed the jury to simply write “Guilty” with no further explanation being required on their part. Captain Schroeder, thereafter, had his bail revoked and was remanded into the custody of the US Marshals and jailed pending sentencing on 7th February 2007.5

Immediately after the jury’s verdict was handed down, the US attorney prosecuting the case informed the registered owner of the ZIM MEXICO III that the government intended to charge it with a violation of 18 USC § 1115. The prosecution intended to use the conviction of Captain Schroeder and the principal of respondeat superior to hold the company vicariously liable for the actions of its agent, the captain.

There was sufficient evidence to establish that Captain Schroeder was acting within the scope of his duties and for the benefit of the company on the date of the incident. Specifically, as Captain Schroeder was the master of the ZIM MEXICO III, he was acting within the scope of his duties when he attempted to manoeuvre the vessel in the Mobile River. Second, the manoeuvring of the vessel following the completion of cargo operations was intended for the benefit of and was not hostile to the interests of the company. As such, there was a basis to establish that the company could be held vicariously liable for violating 18 U.S.C. § 1115 through the actions of Captain Schroeder.

On 29th November 2006, a plea and sentencing hearing regarding the company was held before US District Judge Calie V.S. Granade (the same judge that presided over Captain Schroeder’s trial and, later, his sentencing). The final signed plea agreement and factual resume were presented to the court. Although the plea agreement had been executed by the government and the company, the court could have exercised its discretion to reject it if it disagreed with any of the proposed terms. After listening to each side’s sentencing presentations and the Probation Office’s recommendations, as is customary in these matters, the court accepted the parties’ agreements. A representative of the company appeared in court and entered a guilty plea to violating 18 U.S.C. § 1115. The court accepted the plea. In accordance with the terms of the plea agreement, the court sentenced the company to pay USD 375,000 fine and USD 400 assessment. The fine was paid by the company, judgment was entered by the court and the action was closed.

At Captain Schroeder’s sentencing on 7th February 2007, the judge ruled that she found that his actions amounted to only simple negligence, which she surprisingly said should have normally been dealt with as a civil matter.6 As such, the judge sentenced Captain Schroeder to time already served during the period between the conclusion of the trial and the sentencing. The Captain elected not to appeal the verdict. He was released and has now returned to Europe.

Footnotes
1 See articles “US law – Seaman’s Manslaughter Act” in Gard News issue No. 185 and “US Seaman’s Manslaughter Act – Update on Captain Wolfgang Schroeder” in Gard News issue No. 186.
2 It is still unknown what factor or factors actually caused the vessel to drift into the shoreside crane. During the trial of Captain Schroeder, the government contended that Captain Schroeder was aware of prior problems with the bow thruster under extreme manoeuvring of the vessel’s variable pitch propeller and that such extreme manoeuvring in this case caused a failure in the vessel’s bow thruster which resulted in the allision. However, this conclusion was refuted, in part, by evidence submitted in Captain Schroeder’s defence which clearly showed that the pilot could have backed the vessel further towards the opposite shore before ordering her engines ahead, which then led to the failure of the bow thruster. The simulation of the manoeuvre showed that if the pilot held the astern order for just ten seconds longer than he did, the bow would have missed the crane.
3 “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, and every owner, charterer, inspector, or other public officer, through whose fraud, neglect, connivance, misconduct, or violation of law the life of any person is destroyed, shall be fined under this title or imprisoned not more than ten years, or both.
When the owner or charterer of any steamboat or vessel is a corporation, any executive officer of such corporation, for the time being actually charged with the control and management of the operation, equipment, or navigation of such steamboat or vessel, who has knowingly and willfully caused or allowed such fraud, neglect, connivance, misconduct, or violation of law, by which the life of any person is destroyed, shall be fined not more than USD 10,000 or imprisoned not more than ten years, or both.” 18 U.S.C. § 1115.
4 United States v. O’Keefe, 426 F3d 274 (5th Cir. 2005).
5 After his conviction, the government argued that Captain Schroeder, who had been free on bail prior to the trial, was a flight risk and should be jailed pending sentencing. While the presiding judge appeared to be reluctant to revoke the master’s bail, the applicable statute left her very little discretion, as Captain Schroeder is a foreigner with no ties to the community. As such, the statute required her to revoke bail and order the master to the local Baldwin County jail pending sentencing which was set for 7th February.
6 Her exact words were: “While I certainly do not discount the terrible consequences that have resulted from this negligence, what he has been convicted of is something that is really a civil offence”.

 

Gard News 187, August/October 2007

Any comments to this article can be e-mailed to the Gard News Editor.

Gard News is published quarterly by Gard AS, Arendal, Norway.