Analysis: Charges against BP employees test reach of U.S. statute

Fri Nov 23, 2012 3:16pm EST
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By Andrew Longstreth

NEW YORK (Reuters) - Not all manslaughter charges are created equal. If they were, the U.S. Justice Department might have filed just 11 charges when it brought a criminal case against two BP Plc employees last week, one for each of the 11 deaths in the Deepwater Horizon disaster.

Instead, the government charged Robert Kaluza and Donald Vidrine, the two highest-ranking BP supervisors on board the rig in the hours before the 2010 disaster, with 11 counts of involuntary manslaughter and 11 counts of what's known as seaman's manslaughter.

The seaman's manslaughter statute was first passed by Congress in 1838 after a string of deadly steamboat accidents. The law, which has been modified multiple times since then, was intended to hold captains, engineers and pilots responsible for deaths attributable to their conduct.

The idea behind the law was that those operating a ship have a special responsibility toward passengers in their care. As The Wall Street Journal and others have noted, prosecutors face a lower bar in proving seaman's manslaughter than they do in ordinary manslaughter cases. Manslaughter charges generally require a finding of gross negligence; seaman's manslaughter does not.

The U.S. Court of Appeals for the 5th Circuit affirmed that distinction in a 2005 case, U.S. v. O'Keefe, which could be key precedent in the BP case. The O'Keefe case resulted in the seaman's manslaughter conviction of a tugboat captain whose wife drowned in the Mississippi River after the vessel capsized. At trial, the government introduced testimony indicating that the captain had ingested cocaine on the day of the accident. Prior to deliberations, the captain's lawyer asked that the jury be instructed that the government must show the accident was a result of "gross negligence," defined as "wanton or reckless disregard for human life."

U.S. District Judge Helen Berrigan in New Orleans disagreed, ruling that the statute requires only a finding of negligence, which she defined as an "omission to perform some duty" or a "violation of some rule or standard of care, which is made to govern and control one in the discharge of some duty." The 5th Circuit upheld her ruling and the captain's conviction.

But the 5th Circuit decision left unanswered the question of whether the government can assert seaman's manslaughter against Kaluza and Vidrine at all. The two are accused of failing to alert engineers onshore that BP's Macondo well was unstable and of accepting "illogical" explanations from members of the rig crew for the warning signs. In the indictment, prosecutors allege the two men violated the seaman's manslaughter statute by engaging in "negligence" and "inattention" to their duties.

Here's what the seaman's manslaughter statute says: "Every captain, engineer, pilot or other person employed on any steamboat or vessel, by whose misconduct, negligence or inattention to his duties on such vessel the life of any person is destroyed ... shall be fined under this title or imprisoned not more than ten years, or both."   Continued...

BP logo is seen at a fuel station of British oil company BP in St. Petersburg, October 18, 2012. REUTERS/Alexander Demianchuk