“I Immediately Regret This Decision”*: The Sixth Circuit’s Misinterpretation of the PWSA

Emily Lowder | Note

On June 16, 2005, a barge carrying 400,000 gallons of benzene, a toxic, highly flammable, and carcinogenic liquid, sprang a leak on the Mississippi River near St. Louis, Missouri. Conoco Phillips hired Canal Barge Company, the owner of the barge, to transport the toxic substance from Illinois to Kentucky. When the leak was discovered, Jeffery Scarborough, a Canal Barge employee, instructed deckhands to seal the opening with a bar of soap. Scarborough then called Paul Barnes, the port captain in the company’s Louisiana office, who instructed Scarborough to apply a temporary epoxy patch over the leak. The barge’s captain, Randy Martin, was off duty and asleep but resumed control of the barge later that day. The barge was later transferred to a tugboat near Cairo, Illinois, and then continued onto the Ohio River. On June 20, the epoxy patch failed. At that time, the captain of the tugboat notified the Coast Guard Office in Louisville, Kentucky.

Two years later, Scarborough, Barnes, Martin, and Canal Barge were charged “with: (1) conspiracy to violate the Ports and Waterways Safety Act [PWSA]; (2) violation of the PWSA; and (3) negligent violation of the Clean Water Act.” At the conclusion of a two-week trial, the defendants moved for a judgment of acquittal on the ground of improper venue, arguing that the government had failed to prove that the United States District Court for the Western District of Kentucky was a proper venue. The judge reserved ruling on that motion, and the jury convicted the defendants on the charge of violating the PWSA. After the verdict, the defendants renewed their motion for acquittal for improper venue. The district court granted, finding that the violation of the PWSA was a “point-in-time offense that was complete at the time the defendants failed to immediately notify the Coast Guard,” and venue in the Western District of Kentucky was therefore improper. On appeal, the govern-ment argued that the district court erred in granting the postverdict motion for judgment of acquittal, claiming that the PWSA violation is a continuing offense and venue was proper in the Western District of Kentucky. The United States Court of Appeals for the Sixth Circuit held that the failure to report the benzene leak was a continuing offense, “making venue proper in the district where the hazardous condition continued unreported.” United States v. Canal Barge Co., 631 F.3d 347, 354, 2011 AMC 445, 453 (6th Cir. 2011).