This case came to my attention from David E. Roth at Bradley Arant Boult Cummings LLP in Birmingham, Alabama:
This is a synopsis of the US v. Canal Barge case decided January 7, 2011.
A barge owned by Canal Barge developed a benzene leak while travelling down the Mississippi River. The leak was initially sealed with an epoxy patch that subsequently failed. Following the failure, the leak was reported and the ship was towed to an Indiana fleeting area for repair. Two years after the incident, the US indicted the boat owner and various individuals alleging: (1) conspiracy to violate the Ports and Waterways Safety Act (“PWSA”), (2) a violation of the PWSA, and (3) negligent violation of the CWA. At trial, there was an acquittal on Counts 1 and 3 (conspiracy and CWA), and a conviction on Count 2 (violation of PWSA). The defendants moved for judgment of acquittal on the conviction of Count 2, arguing that the US failed to prove that venue was proper in the Western District of Kentucky. The trial court agreed with the defendants, holding that the PWSA violation was a “point-in-time” offense and was thus “complete at the time the defendants failed to immediately notify the Coast Guard” of the leak, “which occurred on the Mississippi River prior to entry into the Western District of Kentucky.” The US appealed the judgment of acquittal granted by the court.
On appeal, the Sixth Circuit agreed with the US and reversed the trial court’s decision, holding that failure to report was “a continuing offense because the duty to report continued from the time the leak was discovered” to “until the Coast Guard was notified.” Accordingly, venue in the Western District of Kentucky was appropriate. The Sixth Circuit distinguished Supreme Court precedent by reasoning that different continuing offense rules applied for venue than for statute of limitations purposes. There was a dissent to the majority opinion which rejected the conclusion that the language in the statute clearly created a continuing offense. Chief Judge Batchelder pointedly observed: “I respectfully submit that the English language would only accept the majority opinion’s interpretation after being bullied into submission.” The Sixth Circuit also rejected defendants’ cross-appeal that the verdict was against the weight of the evidence. Accordingly, the Sixth Circuit reversed the trial judge’s grant of the judgment of acquittal.
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