Would Whistle Blowing Work More Broadly in Maritime Safety Cases if Damages More?

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A few years back, the New York Times covered a story about whistleblowing on maritime  pollution issues.  And for the sake of convenience, I’ve pasted in the text below.

The intent here is not to cheer on pollution whistle blowing (though I’ve no problem with that), but to ask of the maritime community at large:  At what point can whistle blowing work in general maritime safety cases?

We’ve had a few celebrated cases, most prominently Captain John Loftus challenging his assignment and winning a verdict against against Horizon and Matson. 

Is that a trend setter?  Perhaps.  As gCaptain first reported the situation:

Under the Seaman’s Protection Act (SPA), merchant marine seamen enjoy the same protection against retaliation that railroad workers enjoy under the Federal Rail Safety Act. But due to the shipping industry’s pervasive culture of retaliation against seamen who report safety hazards to outside enforcement agencies, hardly any SPA cases have been brought. Now comes a landmark million dollar SPA award exposing that culture of intimidation and declaring it no longer will be tolerated.

The case is John Loftus v. Horizon Lines, Inc. and Matson Alaska, Inc. In 2013 Captain Loftus was Master of the Horizon Trader, an 813 foot long container ship operating on the eastern seaboard between New York, Jacksonville, and San Juan Puerto Rico. Despite his 20 year unblemished record as a Captain, in June 2013 he was abruptly removed as Master due to his reporting of safety violations to the U.S. Coast Guard and its delegated inspection agency, the American Bureau of Shipping.

It would seem to me that increased threat of litigation would make the seas a bit safer — or certainly might have done so for the lost ship SS El Faro.  But I don’t think you’re likely to see asbestos type litigation ads on your cable channel in the near future.  It still takes a lot of guts and resources to do what Loftus did.

What makes this an easier path? If it should be?  Increased awards?  Larger payouts?  I’d be interested to hear from those who have thought about whistleblowing (on an anonymous basis if you’d like of course) as to what your point of view is on the matter.

 

With Tips From Whistle-Blowers, More Hands on Deck in Pollution Cases

Chief Warrant Officer William D. Dodson was conducting a Coast Guard inspection in Baltimore when he got a note from a whistle-blower, whose reward could be as much as $925,000. Credit Monica Lopossay for The New York Times
BALTIMORE — Nothing seemed amiss aboard the Maltese cargo ship Aquarosa when Chief Warrant Officer William D. Dodson and his Coast Guard inspection team climbed the gangway. It was a crisp Sunday morning, the day after the new vessel had berthed to load scrap metal in its first visit to the United States.
That sense of normalcy evaporated after the chief engineer led the way below for tests of the rudder and fire pump. There, a crew member named Salvador Lopez nervously tugged a note from his pocket and thrust it toward Mr. Dodson. He had something to share, the note read. A secret.
Mr. Lopez’s secret was that the ship had been illegally dumping oily water and sludge overboard, and he had proof: hundreds of photographs stored on his phone. Partly because of Mr. Lopez’s evidence, two companies that owned and operated the ship pleaded guilty last month to obstruction of justice and other charges and agreed to pay $1.2 million each in penalties and fines.
And for his sleuthing, Mr. Lopez stands to collect as much as $925,000.
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The Rev. Mary H. T. Davisson, who runs a port ministry in Baltimore, received an incriminating video from a member of a cargo crew. The ship’s owners agreed to pay $2.4 million in fines. Credit Monica Lopossay for The New York Times
Seafaring whistle-blowers, frequently seeking a financial bounty, have become one of prosecutors’ most potent weapons against maritime polluters, providing the backbone for a growing number of cases the federal government has pursued in Baltimore and other port cities across the country.
“If the third engineer had not come to me with the note and said this was going on, we wouldn’t have expanded the inspection, and most likely the boat would have left the port of Baltimore without our knowledge of what was going on,” Mr. Dodson said in an interview.
As such cases increase, so have objections from maritime companies. In the Aquarosa case, a lawyer for the ship’s management company, Efploia Shipping, said the seaman had undermined compliance with maritime environmental laws and should have reported the violation sooner.
“They can snap their pictures, take their notes and wait until they get to a port like Baltimore and get a payday,” the lawyer, Gregory F. Linsin, said in court.
The judge in the case has not yet ruled on whether to reward Mr. Lopez, but the argument holds little water with environmentalists. Jacqueline Savitz, senior scientist at the conservation group Oceana, said that without whistle-blowers, it would be nearly impossible to prosecute scofflaws.
“The kinds of conditions that these seamen are operating in don’t allow them to just tattletale on their bosses without some kind of safety net,” she said.
While no one knows exactly how much is dumped, estimates suggest that the total each year dwarfs many major spills that get far more attention. One analysis put the annual amount at eight times the size of the 1989 Exxon Valdez spill, which emptied an estimated 11 million gallons of crude oil into Alaska’s Prince William Sound.
Most of the cases involve illegal dumping of sludge and oily bilge water, the residue from the engines. International conventions that the United States adopted in 1980 require ships to separate out oil, then incinerate it or store it until reaching port. The law also forbids dumping plastics.
To skirt that requirement and save money, unscrupulous crews hook up hoses, known as “magic pipes,” that bypass the separation equipment, then pump the oil overboard. The crews then fudge the logs, and the prosecutions often result from the falsified record-keeping rather than the dumping. One estimate is that 10 percent to 15 percent of the roughly 50,000 oceangoing commercial ships worldwide illegally dump oil and sludge.
Richard A. Udell, who frequently prosecutes magic pipe cases for the Department of Justice, said in court that ocean dumping was “virtually an epidemic,” and that in many cases, the government could not go after polluters without people like Mr. Lopez.
In 1987, a whistle-blower provision was added to United States law, allowing seamen who report these crimes to collect up to half of the criminal fines imposed. Those bounties can reach as much as a million dollars.
As word spreads though educational campaigns, word of mouth and sensational stories of sudden riches, seafarers are coming forward to report the dumping and perhaps collect a bounty. There have been roughly 30 such cases since the early 1990s, all but four of them since 2002, according to a government filing in the Aquarosa case. The earlier cases tended to involve cruise ship lines.
Clay Maitland, founding chairman of the industry-financed North American Marine Environment Protection Association, said he was torn about the whistle-blower awards.
“The good part about having a whistle-blower is that you’ve got a witness,” he said. “The bad part is that it isn’t always possible to determine if that whistle-blower is telling the truth.”
The path to a reward is neither quick nor guaranteed. The whistle-blowers often wait for months, isolated and bored, in motel rooms near their detained ships, a source of criticism from seafarers’ advocates. Other witnesses and defendants similarly wait in limbo, which is the subject of a recent federal lawsuit from ship owners.
Mr. Lopez, who returned to the Philippines in December, said in an Internet interview that he had known a bounty was possible, but that his main concern had been preventing dumping, which he had also witnessed on other ships. He could not have reported the crimes anywhere but in the United States, he said, and certainly not when he was at sea.
“If others saw me, maybe I would be injured,” he said. “Or they would kill me or send me home. It’s dangerous.”
It is not always a government official who intercepts the whistle-blower. In May 2010, that person was the Rev. Mary H. T. Davisson, executive director of the Baltimore International Seafarers’ Center, a port ministry that assists and counsels docked ship crews.
A crew member on the Capitola, which had docked to pick up coal, handed her a computer flash drive containing a video of a magic pipe. Ms. Davisson gave the drive to the Coast Guard. In early 2011, the Liberian company that owned the ship agreed to pay $2.4 million in fines, although in that case, the whistle-blower did not receive an award.
Ms. Davisson, 59, has been asked to do many things in her years as a chaplain. A Russian seafarer once asked her where to buy violin strings.
But she had never had to handle evidence in a whistle-blower case. “I don’t think I was expecting that,” she said.

 

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