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U.S. v. RYAN

April 22, 2005.

UNITED STATES OF AMERICA
v.
PATRICK RYAN, et al., Defendants.



The opinion of the court was delivered by: EDWARD KORMAN, Chief Judge, District

MEMORANDUM & ORDER

Eleven passengers died, and dozens of others were injured, when the Staten Island Ferry Service (the "Ferry") vessel Andrew J. Barberi (the "Barberi") collided into the St. George terminal on October 15, 2003 (the "Collision"). The Collision occurred after Assistant Captain Richard Smith, who had been piloting the vessel, suddenly became incapacitated. No crew member was aware of Smith's incapacitation and able to respond in order to prevent the crash. Ferry Captain Michael Gansas was on board the vessel, but was not in the operating pilothouse when Assistant Captain Smith became disabled.

At the time of the collision, defendant Patrick Ryan was the Director of Ferry Operations (the "Director"). The Indictment charges that Ryan was "responsible for fulfilling the Ferry's duty to ensure the safety of its passengers during every voyage on the [r]oute." (Indictment ¶ 10). This responsibility included "ensuring . . . against the hazard of a pilot's sudden disability." (Id.). More specifically, the Indictment charges that Ryan should have enforced the so-called "two-pilot rule," which requires both the captain and assistant captain to be in the operating pilothouse while the ferry is underway. (Indictment ¶ 12). The Indictment alleges that in 2001, during Ryan's second term as Director, Ryan drafted a document titled "Standard Operating Procedures for Captains, Assistant Captains, Mates, Deckhands and Female Attendants While the Boats Are Loading, Off Loading and Underway" (the "2002 SOP"). (Indictment ¶ 16). Had it been implemented, the 2002 SOP would have required each ferry's captain and assistant captain to be in the operating pilothouse while the ferry was in operation. (Id.). However, Ryan never implemented the 2002 SOP. (Indictment ¶ 17). Although he provided the 2002 SOP to a DOT administrator and the Coast Guard as part of a proposed security plan, Ryan did not take steps to ensure that the document was distributed to Ferry personnel including captains and assistant captains. (Id.)

  Ryan is also charged with failing in his responsibility to ensure passenger safety by not promulgating and enforcing rules relating to passenger safety, and by not training Ferry personnel on safety measures in the event of a pilot's sudden disability. (Indictment ¶ 18). The Indictment charges that "[a]s a result, as of [the date of the Collision], the Ferry operated without centrally promulgated and uniform rules, procedures or practices either to guard against the serious hazard of the sudden disability of the pilot or to instruct the Ferry's personnel on the appropriate actions to ensure the safety of the passengers in the event of a pilot's sudden disability." (Indictment ¶ 19). Specifically, it alleges that: (1) captains and assistant captains were not always together in the operating pilothouse during routes; (2) on the night shift, some captains and assistant captains split shifts such that only one piloted the vessel in both directions while the other did not navigate and sometimes slept; and (3) deckhands with assignments in the operating pilothouses were not trained on actions to be taken to guard against the hazard of the sudden disability of the pilot. (Id.).

  DISCUSSION

  Ryan has moved to dismiss Counts 1-11 of the Indictment, which charge him with committing criminal neglect that caused the Collision and the resultant eleven deaths. Specifically, these Counts charge Ryan with violating 18 U.S.C. § 1115, a section titled "Misconduct or neglect of ship officers." This section is more often referred to as the "Seaman's Manslaughter Statute" (the "Statute"). The name derives from the use of the word "manslaughter" to describe the offense when the Statute was first enacted in 1838. Although the word was subsequently deleted, the manner in which the Statute is described has not changed. The product of any number of amendments and revisions since its enactment, it now reads as follows:
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 charter 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 had 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 under this title or imprisoned not more than ten years, or both.
  The Statute provides different standards of liability depending on whether the defendant was (1) a person employed on the vessel; (2) an owner, charterer, inspector or "other public officer;" or (3) an "executive officer" of a corporation charged with the control and management of the vessel. The Indictment charges Ryan under the latter two standards, as both a "public officer" and as an "executive officer." If Ryan is a public officer, the United States Attorney need only prove that his "fraud, neglect, connivance, misconduct, or violation of law" caused the Collision. The relevant word here is neglect — a standard which the United States Attorney understands to be the same required for a plaintiff to prevail in a negligence case. On the other hand, if Ryan is an executive officer, the United States Attorney must prove that he "knowingly and willfully caused and allowed such fraud, neglect, connivance, misconduct, or violation of law" which caused the Collision. Again, the relevant word is neglect, although the degree of negligence is considerably greater than the standard necessary for a plaintiff to prevail in a negligence case.

  The significance of the distinction here is illustrated by the reason given by the United States Attorney for her insistence on charging Ryan both as a public officer and as an executive officer. The United States Attorney intends to show that: (1) Ryan was aware of the necessity for having two pilots in the pilothouse to protect against the precise disaster that occurred in this case; (2) Ryan knew that the rule was neither disseminated nor enforced; and (3) that, notwithstanding such knowledge, he consciously made no effort to do so. Nevertheless, the United States Attorney believes that Ryan may testify that he took steps to ensure that the rule was disseminated and followed and that, at worst, the steps that he took were inadequate — making five copies of the 2002 SOP and placing them in separate envelopes in the Ferry's port office, with the expectation that they would be placed in the ferry pilothouses. If credited by a jury, the United States Attorney fears this testimony could provide a defense to a charge of knowing and willful neglect by an executive officer, although she argues it would not provide a defense to a charge of simple negligence, which is the critical element of the defendant's liability if he was a public officer.

  The position of the United States Attorney comes down to this: If the Barberi had been owned by a private, as opposed to a municipal corporation, Ryan's criminal liability would derive solely from his status as an executive officer, who may be convicted if the neglect that caused the deaths of eleven passengers was knowing and willful. On the other hand, if he performed the same function for a municipal corporation, he may be convicted without any showing that his negligence was knowing and willful. This result is wholly irrational. See, e.g., United States v. Granderson, 511 U.S. 39, 45-47 & nn. 4-5 (1994) (refusing to accept construction of statute that would provide more favorable treatment for drug-possessing probationers than other probation-violating individuals).

  Rather than defend the rationality of this distinction, the United States Attorney argues generally that it is not uncommon for Congress to treat public officials differently than private persons similarly situated. Specifically, she cites 18 U.S.C. § 201(b)(2), which criminalizes corruption involving "a public official or person selected to be a public official," and the Hobbs Act, 18 U.S.C. § 1951, which criminalizes extortion "under color of official right," a crime that is comparable to bribery, although it is not necessary here to discuss the subtle distinction between the two. This argument ignores the evil sought to be proscribed by the corrupt use of public office. As the Second Circuit has observed:
[t]he evil sought to be prevented by the deterrent effect of 18 U.S.C. § 201(b) is the aftermath suffered by the public when an official is corrupted and thereby perfidiously fails to perform his public service and duty. Thus the purpose of the statute is to discourage one from seeking an advantage by attempting to influence a public official to depart from conduct deemed essential to the public interest. As Judge Hastie aptly stated in United States v. Labovitz, 251 F.2d 393, 394 (3[d] Cir. 1958):
It is a major concern of organized society that the community have the benefit of objective evaluation and unbiased judgment on the part of those who participate in the making of official decisions. Therefore, society deals sternly with bribery which would substitute the will of an interested person for the judgment of a public official as the controlling factor in official decision.
United States v. Jacobs, 431 F.2d 754, 759 (2d Cir. 1970). This evil is simply not present in cases of commercial bribery, although such conduct is proscribed specifically by, or comes within the ambit of, other statutes. See, e.g., 18 U.S.C. §§ 212, 215, 224, 1341. The fact that Congress may sometimes treat official misconduct and private misconduct differently hardly supports the irrational distinction at issue here.

  The United States Attorney also argues that Ryan's position fits within the plain language definition of the statute. While the word "public" may have a plain meaning, the word "officer" is quite another matter. In discussing the definition of "public officer," a New York State Supreme Court Justice once observed aptly: It is not always easy to define the term "public officer" so as to have a definition that will apply and point out the distinction in every case. In general whether either the People or the Legislature create an office or designate a person to perform some function of government, the head of such an office would be a public officer; whereas, if the head of such an office delegates part of his work to a number of persons employed to carry out the details of the work we think the persons so appointed would, generally speaking, be holders of positions. The line between a public officer and a public employment has not been too clearly marked by judicial expression probably because the distinction is not too clear. The holder of a public office is in the employment of the public, but all those who are in the public employment are not public officials and do not hold public office.

 Sweeney v. Donovan, 1 Misc. 2d 125, 128 (N.Y. Sup. Ct. 1955).

  Other New York cases define "a public officer, in contrast to a subordinate public employee" as "a person whose position is created, and whose powers and duties are prescribed, by statute and who exercises a high degree of initiative and independent judgment" and "[t]he creation and filling of the position must be mandatory." Lake v. Binghamton Hous. Auth., 130 A.D.2d 913, 914 (N.Y.App. Div. 1987) (citations omitted) (holding that "executive director" of Binghamton Housing Authority was not public officer because public housing law "neither prescribes the duties and powers of a secretary/executive director nor does it mandate the creation or filling of that position."). Indeed,
[w]hether a particular person is an independent officer or a subordinate employee is not always an easy matter to determine. No automatic rule . . . is at hand . . . The decisions do, however, contain certain guides and, if we were to attempt a formulization, it would be this — he is an independent officer whose position is created, and whose powers and duties are prescribed, by statute and who exercises a high degree of initiative and independent judgment.
O'Day v. Yeager, 308 N.Y. 580, 586 (N.Y. 1955) (citations and quotation marks omitted)); see also Haller v. Carlson, 42 A.D.2d 829 (N.Y. Sup. Ct. 1943). While Congress may have intended a uniform definition of the term, in the absence of any clear indication of what definition Congress had in mind, surely the definition of the term by the jurisdiction of which the defendant is said to be a public officer is not altogether irrelevant. More significantly, New York law is consistent with the specific definition of "public officer" set out in the Dictionary Act, which defines "officer" as including "any person authorized by law to perform the duties of the office." 1 U.S.C. § 1. Indeed, in United States v. Hartwell, 73 U.S. 385 (1867), decided before the enactment of the Dictionary Act, the Supreme Court held that a clerk in the office of the Assistant Treasurer of the United States whose position and appointment were specifically authorized by statute was, for this and related reasons, a public officer. Id. at 393-94. Similarly, in Hoeppel v. United States, 85 F.2d 237 (D.C. Cir. 1936), the Court of Appeals held that a West Point Cadet is an officer of the United States because Congress expressly provided for his appointment by the President. Id. at 241-42.

  Turning specifically to this case, the New York City Charter confers on the Commissioner of Transportation responsibility for maintaining and operating all of the ferries of City. NYC Charter § 2903. The Charter does not specifically mention Ryan's position, that of Director of Ferry Operations, and merely authorizes the Commissioner to appoint three "deputies." Id. at § 2902. Moreover, the only mention of a position somewhat similar to the one held by Ryan appears in the New York City Rules. The section on ferry terminals and vessels defines "Manager[s]" as both ferry captains and "Ferry Terminal Supervisor[s]." 34 R.C.N.Y. § 1-01. The rules require that "[e]ach terminal will have a different Manager." (Id.). Ryan did not hold that position.

  Ryan's position does not fit within the specific definition of a "public officer" because it is not created by statute, nor are the duties of the position defined by law. Indeed, the United States Attorney acknowledges that she "is not aware of any provision of law specifically identifying the position of director of municipal ferry operations" (Letter of April 19, 2005 in Response to the Court's Order of April 13, 2005). While she makes an argument — that consumes four pages of her single-spaced letter — to fit Ryan's position into the definition, the effort only highlights the fact that the Statute is not amenable to a literal interpretation. Indeed, the Supreme Court has acknowledged that the meaning of the term "public officer" turns Congress's intent when using the term. So, for example, after employing a formal definition of the term in the case before it, the Supreme Court observed:
Undoubtedly congress may have used the word `officer' in some other connections in a more popular sense . . . in which case it will be the duty of the court in construing such an act of congress to ascertain its true meaning, and be governed accordingly.
United States v. Mouat, 124 U.S. 303, 308 (1888). I undertake that exercise shortly. Before doing so, I add that even if Congress intended the term "public officer" to include positions other than the kind specifically defined in the Dictionary Act, it failed to delineate what those other positions might be. We may assume that, if Congress intended the term to include every public officer or employee, it would have said so. See, e.g., 18 U.S.C. § 1114 (2000) ("Whoever kills or attempts to kill any officer or employee of the United States . . ."); see also 18 U.S.C. § 217 (2000) ("Whoever, being an officer or employee of, or person acting for the United States . . ."); cf. H.R. 746 38th Cong. (1865) (amending previous steamship regulation and specifying intent to regulate "any person, except" certain specified officers). Because of Congress's silence, the term should be construed in a way that "fits most logically and comfortably into the body" of the Seaman's Manslaughter Statute. See West Virginia Univ. Hosp. v. Casey, 499 U.S. 83, 100-01 (1991) (Scalia, J.). As the Supreme Court ...

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