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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) | |
| ) | ||
| Appellant/Cross-Appellee, | ) Court of Appeals No. A-9363/93/94 | |
| ) Trial Court No. 1KE- 04-00771/772 CR v. | ) | |
| ) | ||
| GREENPEACE, INC., and | ) O P I N I O N | |
| ARNE J. SORENSEN, | ) | |
| ) | ||
| Appellees/Cross-Appellants. | ) | |
| ) No. 2174 July 3, 2008 | ||
Appeal from the
District Court, First Judicial District,
Ketchikan, Kevin G. Miller, Judge.
Appearances: Tamara E. de Lucia, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellant. G. Blair McCune,
Anchorage, for the Appellee/Cross-Appellant
Greenpeace, Inc. James D. Gilmore, Clapp,
Peterson, Van Flein, Tiemessen & Thorsness,
LLC, Anchorage, for the Appellee/Cross-
Appellant Sorensen.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In July 2004, the vessel Arctic Sunrise docked in
Ketchikan en route to an anti-logging campaign for the
environmental group Greenpeace, Inc. When the vessel arrived in
Ketchikan on July 12, it did not have an approved oil spill
contingency plan or certificate of financial responsibility as
required by state law.1 When the vessel departed Ketchikan two
days later, these regulatory requirements still had not been met.
As a result, the State charged Greenpeace, Inc., and the captain
of the Arctic Sunrise, Arne J. Sorensen, with misdemeanor
offenses for operating the vessel with criminal negligence as to
whether the vessel complied with these regulatory requirements.
A jury convicted Greenpeace, Inc., and Sorensen of several
offenses for their conduct on July 12 and July 14. But the
district court set aside those convictions after ruling they were
not supported by sufficient evidence.
We agree with the district courts decisions setting
aside the jurys verdicts, except for one. We conclude, after
viewing the evidence and all the inferences from that evidence in
the light most favorable to upholding the jurys verdicts, that
there was sufficient evidence for a reasonable juror to conclude
that Sorensen operated the Arctic Sunrise on July 14, 2004, with
criminal negligence as to whether the vessel had an approved oil
spill contingency plan. We therefore direct the trial court to
reinstate that verdict. Because Sorensen reserved his right to
litigate post-trial motions in the district court, we remand the
case for further proceedings.
Facts and proceedings
The Arctic Sunrise, the Esperanza, and the Rainbow
Warrior are vessels commonly associated with the environmental
organizations that operate worldwide under the umbrella name
Greenpeace. The vessels are owned by Stichting Phoenix, a
Netherlands foundation. (Stichting is the Dutch word for
foundation.) Another Netherlands foundation, Stichting Marine
Services (SMS), operates the vessels under bareboat charter.
That is, SMS charters the vessels from Stichting Phoenix and
provides its own crew and everything else required for operation
of the vessels. SMS then charters the manned vessels to its sole
client, Greenpeace International, which is also headquartered in
the Netherlands. Greenpeace International (formally known as
Stichting Greenpeace Council) owns the name Greenpeace and
licenses that name to environmental organizations around the
world, including Greenpeace, Inc., in the United States.
Greenpeace, Inc., petitioned Greenpeace International
for use of the Arctic Sunrise to support its anti-logging
campaign in Alaska. Greenpeace International approved that
request and allowed Greenpeace, Inc., to use the vessel free of
charge in the summer of 2004.
In June 2004, en route to Alaska, the Arctic Sunrise
made a port call in Portland, Oregon. Richard Parkinson, the
head of operations at SMS, hired Barwell Agencies, an
international shipping agent, to serve as the agent for the
Arctic Sunrise in Portland. Barwell Agencies had a preexisting
agency agreement with SMS and was paid in advance for its
services. As the ships agent, Barwell Agenciess duties ranged
from paying the Arctic Sunrises bills in Portland, handling
contacts with the United States Coast Guard, immigration and
customs, arranging crew changes and berthing arrangements, and
running errands on shore. Under this agency agreement, Barwell
Agencies advised SMS of local regulatory requirements, but it was
SMS, not Barwell Agencies, that was responsible for complying
with those regulations.
Barwell Agencies arranged for a subagent to assist the
Arctic Sunrise when it left Oregon and headed through Canadian
waters to Victoria, British Columbia. Barwell Agencies also
tried to secure an agent for the Arctic Sunrise in Ketchikan,
Alaska, but was unable to do so. Local agents were apparently
unwilling to work for the Arctic Sunrise because of its mission
in Alaska: opposing logging practices in the Tongass National
Forest on behalf of Greenpeace, Inc. The Arctic Sunrise was
boldly emblazoned with the Greenpeace logo.
The master, or captain, of the Arctic Sunrise for the
duration of this campaign was Arne Sorensen, who had worked as a
master for SMS for fifteen years. Sorensen boarded the Arctic
Sunrise in Portland. Once on board, he inventoried the ships
documents and confirmed that the ship carried a Coast Guard
certificate of financial responsibility and an international oil
pollution prevention certificate.
Sorensen testified that at that time he was unaware he
also needed an approved state oil spill contingency plan and
proof of financial responsibility to legally operate in Alaska
waters. While in Portland, in preparation for his journey to
Alaska, Sorensen contacted Joel Stewart, who had captained the
Esperanza in Alaska in 2003, to inquire about any problems he
might confront in Alaska. The Esperanza, another Greenpeace-
affiliated vessel, had complied with Alaskas regulations in 2003.
But Stewart did not mention these regulatory requirements when he
spoke with Sorensen.
By the time the Arctic Sunrise anchored in Ketchikan
on the afternoon of July 12, regulators at the Alaska Department
of Environmental Conservation (DEC) knew the vessel was operating
without the required certificates. On the morning of July 12,
after reading a newspaper article about the vessels planned
arrival in Alaska, Chris Pace of the DECs Juneau office sent an e-
mail to his colleague Robert Flint in Anchorage inquiring about
the ships regulatory compliance. Flint checked the DECs
electronic database and found that the Arctic Sunrise had no oil
spill contingency plan on file. Flint then established that the
Arctic Sunrise was just shy of 1000 gross tons and therefore
covered by the new nontank vessel requirements.
Flint began locating contacts for the ship. He
identified ECM Maritime Services, a Connecticut company, as the
response planning facilitator for the Esperanza, the vessel that
had visited Alaska on a Greenpeace, Inc., campaign in 2003.
Flint called ECM Maritime and learned that the company had not
been asked to handle regulatory compliance for the Arctic
Sunrise. However, an employee at ECM Maritime said he would
contact SMS in Amsterdam. Flint also called the United States
Coast Guard and obtained the name of its contact for the Arctic
Sunrise Willem Beekman. Finally, Flint checked the Internet for
a phone number for Greenpeace, Inc., in Washington, D.C. Flint
spoke with an employee there who was aware of the Arctic Sunrise
campaign. Flint e-mailed him information on Alaskas regulatory
requirements.
The next morning, on July 13, Flint contacted Robert
Fultz, who worked for a different DEC department in Ketchikan.
Fultz confirmed that the Arctic Sunrise was moored in Ketchikan
and he agreed to get in touch with Beekman. That morning, Fultz
called Beekman, who expressed surprise that the Arctic Sunrise
was out of compliance with environmental regulations. Beekman
was very cooperative and agreed to come to Fultzs office. When
he arrived, Fultz arranged a conference call between Flint and
Beekman. Flint explained the steps required to bring the ship
into compliance with the oil spill contingency plan requirement.
Flint asked Beekman to keep the vessel moored in Ketchikan until
the application was approved.2 Fultz then arranged a conference
call with Chris Pace in Juneau, who handled the proof of
financial responsibility component of the regulations, and Pace
explained how to comply with that requirement.
Flint spoke with Beekman again later that afternoon.
Flint asked Beekman about the departure plans for the Arctic
Sunrise and Beekman said the plan was for the vessel to leave in
the morning. Flint told Beekman that the vessel might have to
stay at anchor until the paperwork was completed and that he
would advise him in the morning. At some point, Flint told
Beekman that another option was to depart state waters and wait
for approval of the paperwork.
Flint went to work at 6:00 a.m. the next day, July 14.
He called ECM Maritime Services and learned that the company had
been in touch with SMS in Amsterdam and would be submitting an
oil spill contingency plan application for the Arctic Sunrise.
Flint then drafted a letter to Beekman. The letter noted that
the Arctic Sunrise was in violation of AS 46.04.055 and stated
that the DEC would seek civil penalties under AS 46.03.760 if the
vessel left Ketchikan without permission. The letter was signed
by Flints boss, Betty Schorr, and faxed to Beekman on board the
Arctic Sunrise at about 8:30 a.m. on July 14.
There were difficulties faxing the letter. Beekman
finally received the letter, but was unable to fax back a signed
copy from the vessel verifying his receipt. Beekman disembarked
and went to the DEC office in Ketchikan, signed the letter, and
faxed it to Anchorage. Beekman did not tell Sorensen, the ships
captain, about the letter or about the DECs request that the
vessel stay in Ketchikan. In fact, before Beekman disembarked
the Arctic Sunrise, he told Sorensen the ship was good to go.
The vessel then departed Ketchikan for a prearranged publicity
event in Hydaburg.
When Beekman arrived in the DEC office that morning,
he spoke by phone with Flint and Schorr in Anchorage. Beekman
told them he misunderstood their letter. He said he believed
that once he signed the letter and finalized the contract with
Southeast Alaska Petroleum Organization (SEAPRO), the oil spill
response contractor, ECM Maritime could complete the final
paperwork and the vessel was good to go. (Beekman had contacted
David Owings, the general manager of SEAPRO, on July 13, and had
given him a check on the morning of July 14.) Flint told Beekman
the approvals were not final and that the vessel should stay in
port. Beekman subsequently tried to call Sorensen on the ships
mobile phone, but Sorensen could not take the call because he was
maneuvering the Arctic Sunrise in port. Sorensen called Beekman
back about one-half hour later while the ship was underway in the
Tongass Narrows. Sorensen later said it was possible Beekman
told him to turn around at that point, but he said he would have
refused to do so in any event because the passage was narrow and
visibility was poor.
Several hours later, when the ship was in Nichols
Passage east of Gravina Island, Sorensen received a notice of
violation from the DEC, which was faxed to the vessel. The
notice was addressed to Richard Parkinson at SMS and copied to
Sorensen. At about the same time, the ships radio operator gave
Sorensen a copy of the letter that Flint had faxed to Beekman
earlier that morning asking the ship to stay in port. Soon
after, Sorensen called Schorr on the ships mobile phone. Both
Sorensen and Schorr testified that Schorr did not ask Sorensen to
return to Ketchikan. However, Flint, who was listening to this
call, testified that Schorr told Sorensen to return to port.
Sorensen told Schorr he would proceed to his planned anchorage in
Cordova Bay and remain there until the paperwork was in order.
The DEC approved the oil spill contingency plan the
next day, July 15. The certificate of financial responsibility
was approved the day before, July 14, though Schorr did not
receive notice that the Juneau office had issued the certificate
until midday on July 15.
Based on these events, the State charged Greenpeace,
Inc., and Sorensen with four misdemeanor offenses: (1) operating
a nontank vessel in state waters without an approved oil
discharge prevention and contingency plan on July 12 and July 14
and (2) operating the vessel without proof of financial
responsibility on those same days.3 The State charged Beekman
with the two July 14 offenses. The jury convicted Greenpeace,
Inc., of operating without an oil spill contingency plan on July
12 (the date the Arctic Sunrise anchored in Ketchikan) and on
July 14 (the date the ship departed Ketchikan), but acquitted it
of operating without a certificate of financial responsibility on
these same two days. The jury convicted Sorensen of operating
without an oil spill contingency plan on July 12 and July 14 and
of operating without proof of financial responsibility on July
12. The jury acquitted Beekman of all charges.
The defendants moved for a judgment of acquittal at
the close of the States evidence and again at the close of all
the evidence. District Court Judge Kevin G. Miller denied the
first motion and took the second motion under advisement. After
the jury returned its verdicts, the court permitted additional
briefing on the issue. Judge Miller ultimately granted the
motions, concluding that the States evidence, even viewed in the
light most favorable to upholding the jurys verdicts, was
insufficient to show that Greenpeace, Inc., had operated the
Arctic Sunrise or that Greenpeace, Inc., or Sorensen had acted
with criminal negligence.
The State appeals Judge Millers decision setting aside
the jurys verdicts.
Was there sufficient evidence for the jury to convict
Greenpeace, Inc.? As a threshold matter, the defendants
argue that the State cannot appeal Judge Millers decision because
reinstating the jurys verdicts would violate the prohibition
against double jeopardy. This is wrong. We recently held in
Eide v. State4 that the double jeopardy clause does not bar an
appeal from a courts decision setting aside a jurys verdict.5 We
therefore address the merits of the States claims.
Judge Miller granted the defendants motions for
judgment of acquittal after ruling that there was insufficient
evidence as a matter of law to support the jurys verdicts. We
owe no deference to that ruling.6 As an appellate court, we view
the evidence and the reasonable inferences from that evidence in
the light most favorable to the jurys verdicts and decide whether
reasonable minds could conclude that guilt had been established
beyond a reasonable doubt.7
Greenpeace, Inc., was convicted of violating AS
46.04.055(f), the statute providing that a person may not operate
a nontank vessel within the waters of the state ... unless the
[DEC] has approved an oil discharge prevention and contingency
plan covering that nontank vessel and the person is in compliance
with the plan.8 The State did not argue that Greenpeace, Inc.,
was an operator of the vessel as that term is defined by
statute.9 Rather, the State argued that Greenpeace, Inc., was
culpable through the acts of its agents, SMS and Sorensen.
At the States request, the court instructed the jury,
in accordance with AS 11.16.130,10 that there are two ways to
convict an organization of a crime based on the conduct of an
agent. First, the State can prove that the agent of the
organization committed each element of the crime while acting
within the scope of the agents employment on behalf of the
organization.11 Second, the State can prove that the agent of
the organization committed each element of the crime and that the
organization solicited, ratified, or adopted the conduct of the
agent.12 The jury was instructed that an agent is a director,
officer, or employee of an organization or any other person who
is authorized to act on behalf of the organization.
At trial, the State argued that Greenpeace, Inc., was
guilty under the second test. The prosecutor argued that SMS was
an agent of Greenpeace, Inc., that SMS acted with criminal
negligence by operating the Arctic Sunrise in violation of AS
46.04.055, and that Greenpeace, Inc., later adopted SMSs
misconduct.
The State offered the jury two alternative theories as
to how SMS was an agent of Greenpeace, Inc. The first theory was
that Greenpeace, Inc., and SMS were, in essence, one
organization. The State conceded that there were four distinct
legal entities: Stichting Phoenix, the Netherlands foundation
that owned the Arctic Sunrise; SMS, which operated the boat under
bareboat charter; Greenpeace International, which chartered the
vessel from SMS; and Greenpeace, Inc., which successfully
petitioned Greenpeace International for use of the vessel for its
anti-logging campaign. But the State argued that there was
really only one Greenpeace organization, which had been split
into four entities as part of a corporate shell game to avoid
liability. To prove this, the State offered evidence that SMS
and Greenpeace International shared the same street address in
Amsterdam, that SMS had no business other than to operate
Greenpeace-affiliated vessels, and that Parkinson, the head of
operations at SMS, had a Greenpeace International e-mail address.
But even accepting, for purposes of argument, that SMS
and Greenpeace International the two foundations that shared a
street address in Amsterdam were, in all but name, one
organization, the State offered no evidence that any officers or
employees of the Washington D.C.-based Greenpeace, Inc. the
purported principal in this case had any authority over the
officers or employees of that Netherlands organization with
respect to the use of the Arctic Sunrise or with respect to
whether the Arctic Sunrise complied with environmental laws.
The States second theory was that SMS was an agent of
Greenpeace, Inc., because SMS (or its employee, Captain Sorensen)
acted on behalf of Greenpeace, Inc. The State argued that
Greenpeace, Inc., had essentially delegated to these folks in
Amsterdam the ... authority ... to act on their behalf to comply
with these laws. If [SMS] screwed up and Greenpeace, Inc.,
[adopted] the conduct later, theyre on the hook, too. Later, the
State reiterated: if [SMS] committed all the elements of this
offense and that conduct was adopted, [Greenpeace, Inc.,] is on
the hook.
But to prove that SMS and Sorensen were agents of
Greenpeace, Inc., it was not enough for the State to show that
SMS and Sorensen provided Greenpeace, Inc., with a contractual or
a gratuitous service. A person or organization does not qualify
as the authorized agent of a principal unless the principal
controls or has the legal right to control the purported agent.13
The State offered no evidence that Greenpeace, Inc., controlled
how (or if) SMS or Sorensen operated the Arctic Sunrise or
complied with Alaskas requirements for nontank vessels.
Indeed, there was considerable evidence to the
contrary. It was SMS, not Greenpeace, Inc., that hired and paid
for the ships agent in Portland. That agent, Mitch Anderson, did
not deal with Greenpeace, Inc., but with Richard Parkinson, the
head of operations at SMS. Both Anderson and Sorensen, the
master of the Arctic Sunrise, testified that it was SMSs
obligation to comply with regulatory requirements for the vessel.
ECM Maritime, the response planning facilitator that ultimately
submitted an application for the Arctic Sunrise, submitted it on
behalf of SMS. Ellen McPeake, the chief operating officer of
Greenpeace, Inc., testified that Greenpeace, Inc., had no role in
filling out regulatory paperwork for the vessel.
Beekman, a Greenpeace, Inc., employee, volunteered to
act as the ships agent while the vessel was in Ketchikan because
SMS was unable to secure a professional agent in Alaska. In his
efforts to bring the ship into compliance, Beekman contacted and
paid a local company, SEAPRO, to provide oil spill response
services. But the State offered no evidence that Beekman had any
authority to direct employees or officers at SMS to comply with
Alaska law.
Even if the State had proven that SMS and Sorensen were
agents of Greenpeace, Inc., the States evidence would fail on
another ground. As noted earlier, AS 11.16.130 imposes criminal
liability on an organization for the conduct of a non-employee
agent if the agents misconduct was subsequently ratified, or
subsequently adopted by the organization.14 The legislature did
not define precisely what it meant by ratified or adopted. But
the tentative draft of AS 11.16.130 would have imposed criminal
liability on an organization for an agents misconduct if the
organization knowingly engaged in, authorized, solicited,
requested, commanded, ratified or tolerated the misconduct.15
When the legislature enacted the statute, it abandoned this broad
language, tolerated misconduct. This strongly suggests that the
legislature did not intend to impose criminal liability on an
organization for merely tolerating an agents misconduct. In the
civil context, by comparison, the supreme court has held that a
principal may ratify the conduct of an agent by silence if the
principal fail[s] to act in response under circumstances which
according to the ordinary experience and habits of men, one would
naturally be expected to speak if he did not consent.16
The State did not explain at trial or in its opening
brief on appeal what specific acts by Greenpeace, Inc., it
believes amounted to ratification or adoption of misconduct by
SMS or Sorensen. In its reply brief, the State suggests that
express ratification was unnecessary because McPeake, the chief
operating officer of Greenpeace, Inc., was aboard the Arctic
Sunrise. But the State cannot prove that Greenpeace, Inc., was
responsible as a principal for violations by SMS or Sorensen
simply by showing that McPeake was on board the vessel when those
violations took place; adoption or ratification by a principal
requires at a minimum both an awareness of the misconduct and
some action to ratify or adopt the misconduct. The supreme court
discussed this principle in Wirum & Cash, Architects v. Cash,17
when it concluded that a partner in an architecture firm could
not defeat a claim of a breach of fiduciary duty by showing that
the other partner had access to the partnerships tax returns,
books, and records.18 Quoting a New York case, the supreme court
explained:
[B]efore a principal can be held to have
ratified the unauthorized act of an assumed
agent he must have full knowledge of the
facts, so that it can be said that he
intended to ratify the act. If his knowledge
is partial or imperfect, he will not be held
to have ratified the unauthorized act, and
the proof of adequate knowledge of the facts
should be reasonably
clear and certain.[19]
In the alternative, the State argues that Greenpeace,
Inc., ratified the misconduct because McPeake knew the vessel had
no agent in Ketchikan (and thus should have been on notice that
it was up to Greenpeace, Inc., to ensure the vessels compliance)
and because she allowed the vessel to depart Ketchikan without
the required approvals. But McPeake did not arrive in Ketchikan
until July 12, and the State offered no evidence that she knew
SMS or Sorensen had failed to file the necessary papers before
the vessel entered Alaska waters on that date. There was also no
evidence that McPeake knew when the vessel departed Ketchikan on
July 14 that it was out of compliance with Alaska law or that she
knew the DEC had asked the vessel to remain in port.
The State next argues that McPeake ratified the
misconduct because she learned of the violations after the vessel
left Ketchikan but did not order Sorensen to return to port. But
again, the State offered no evidence that McPeake was aware that
the DEC had asked Sorensen to return to Ketchikan or, if she was
aware of this, that she had the authority to order Sorensen to
change course.
Viewing the evidence and the inferences from that
evidence in the light most favorable to the State, we conclude
that there was insufficient evidence for a reasonable juror to
find that SMS or Sorensen was an agent of Greenpeace, Inc.
Alternatively, we conclude that the State presented insufficient
evidence to show that Greenpeace, Inc., ratified any failures by
SMS or Sorensen to comply with Alaska law. We therefore affirm
Judge Millers decision to set aside the verdicts against
Greenpeace, Inc.
Was there sufficient evidence for the jury to convict
Sorensen?
The jurys verdicts against Sorensen, the master of the
Arctic Sunrise, present a closer question. There is no dispute
that Sorensen was an operator of the Arctic Sunrise as that term
is defined by statute. The question is whether Sorensen was
criminally negligent when he operated the vessel without an
approved oil spill contingency plan and certificate of financial
responsibility.
The jury convicted Sorensen of criminal negligence for
operating the Arctic Sunrise without an oil spill contingency
plan on July 12 and July 14 and for operating without a
certificate of financial responsibility on July 12. Judge Miller
set aside the verdicts against Sorensen after concluding that the
State had not presented sufficient evidence to show he acted with
criminal negligence.
At trial, the State argued that Sorensen was criminally
negligent because he did not inquire about Alaskas regulatory
requirements or take steps to comply with them before he entered
Alaska waters on July 12. The State argued that Sorensen should
have inquired because he knew environmental regulations varied
from jurisdiction to jurisdiction and because he was on notice
that the Arctic Sunrise had no professional ships agent in Alaska
who could alert him to local requirements. The State argued that
Sorensen was criminally negligent on July 14 because he continued
to operate the Arctic Sunrise after he was told by state
regulators to return to Ketchikan until the final approvals were
in place.
On appeal, the State argues for the first time that
there was sufficient evidence for the jury to find that Sorensen
had actual notice of the regulations before he arrived in Alaska.
The State points to the following evidence to support this claim:
Greenpeace International chartered the Esperanza and the Arctic
Sunrise from Sorensens employer, SMS; the Esperanza complied with
Alaska laws in 2003; and Sorensen was the reporting party on
documents supplied to the Coast Guard by SMS in preparation for
the Arctic Sunrises voyage. The State does not explain (nor is
it readily apparent) how a juror could reasonably infer from
these facts that Sorensen had actual notice of Alaskas
requirements for nontank vessels. Sorensen testified that he
first learned of the regulations on July 13, the day after the
vessel anchored in Ketchikan. In any event, the State did not
make this argument at trial. The States argument at trial with
respect to the July 12 charges was that Sorensen should have
inquired about the regulations and was criminally negligent for
failing to do so.
The jury was instructed that a person acts with
criminal negligence with respect to a result or circumstance
when the person fails to perceive a
substantial an[d] unjustifiable risk that the
result will occur or that the circumstance
exists; the risk must be of such a nature and
degree that the failure to perceive it
constitutes a gross deviation from the
standard of care that a reasonable person
would observe in the situation.
A person also acts with criminal
negligence if they
act intentionally, knowingly, or recklessly.
There is no dispute about the facts the State relies on
to argue that Sorensen was criminally negligent when he operated
the Arctic Sunrise on July 12 without the required approvals from
the DEC. The State observes that Sorensen was a veteran captain
who had been employed by SMS as a vessel master for fifteen
years. He reviewed the vessels documentation before he departed
for Alaska. He knew operating nontank vessels is a highly
regulated activity and that regulations vary from region to
region and change over time. He also knew that the Arctic
Sunrise had no ships agent in Alaska. And yet he never contacted
Parkinson, SMSs operations manager, to inquire about the status
of the vessels compliance with Alaska law.
Sorensen argues that the States claim of criminal
negligence fails as a matter of law because the State offered no
evidence on the standard of care a reasonable person in Sorensens
circumstance would observe. Without this evidence, Sorensen
argues, the jury had no basis to find that his conduct was a
gross deviation from that standard.
As Sorensen observes, none of the States witnesses
testified that his conduct deviated from the conduct of a
reasonable master mariner. Moreover, the jury heard evidence
that the vessel owner (or, in this case, SMS, the bareboat
charterer) was normally responsible for regulatory compliance
not the vessel master. Sorensen testified that the operations
department at SMS had the responsibility to obtain the required
documentation for the Arctic Sunrise. Mitch Anderson of Barwell
Agencies, the ships agent in Portland, testified that in his ten
years of working as a ships agent he had never been hired by a
vessel master. Anderson said he only communicated with masters
about the physical operation of vessels. He said as ships agent,
he alerted the vessel owner to any special regulations and that
it was the duty of the owner, not the master, to comply with
those regulations.
The jury also heard evidence that DEC regulators did
not normally communicate with the masters of vessels to ensure
regulatory compliance. Schorr said the state relied on response
planning facilitators registered with the state (such as ECM
Maritime, the company SMS hired to handle regulatory compliance
for the Arctic Sunrise) to disseminate information on regulatory
requirements. Flint and Schorr testified that they made no
effort to contact Sorensen about the vessels noncompliance until
it became apparent that the vessel was lifting anchor the morning
of July 14. At that point, Flint sent a fax to Beekman on board
the Arctic Sunrise asking him to verify that he had told Sorensen
the DEC wanted the vessel to remain in port.
Sorensen argues that, in light of the States failure to
rebut evidence that the master of a vessel is not normally
involved with regulatory compliance, no reasonable juror could
conclude beyond a reasonable doubt that his conduct was a gross
deviation from the standard of care. We agree with respect to
Sorensens conduct on July 12, before Sorensen had actual notice
that the vessel was in violation. The unchallenged evidence was
that SMS handled regulatory paperwork for the Arctic Sunrise and
that this was typically how things were done in the industry. In
light of this evidence, Sorensens years of experience as a master
would not have alerted him to a duty to inquire about Alaskas
environmental regulations, but rather would have firmed his
belief that such an inquiry was unnecessary. The jurys
conclusion to the contrary was purely speculative because the
State offered no concrete evidence to show that Sorensens
reliance on SMS was unreasonable.20 For this reason, we conclude
that there was insufficient evidence for the jury to find beyond
a reasonable doubt that Sorensens conduct on July 12 was
criminally negligent. We therefore affirm Judge Millers decision
to set aside Sorensens convictions for his conduct on that date.
The State next argues that Sorensen was criminally
negligent on July 14 because, after he learned the vessel was
operating in violation of state law, he continued on his mission
and ignored Schorrs request to return to Ketchikan.
The Arctic Sunrise left Ketchikan at about 9:00 a.m. on
July 14. Sorensen knew there was some risk the vessel was still
in violation. But he testified that he had the impression from
Mr. Beekman that while the wheels were turning we were all right
to go, as long as [the regulatory process] ... was progressing.
He said he knew on July 13 that the vessel was out of compliance,
but that he worked under the assumption that [this fact] ... did
not prevent me from leaving. At trial, the State conceded that
Sorensen did not depart Ketchikan until after Beekman told him
the vessel was good to go.
Not long after the vessel left the Ketchikan port,
Beekman called Sorensen on the ships mobile phone, but Sorensen
was maneuvering in port and could not take the call. The
conditions were foggy and there was a cruise ship approaching
from the west. About thirty minutes later, when the vessel was
in Tongass Narrows, Sorensen called Beekman back. Sorensen
testified that Beekman may have told him at that point to turn
back, but Sorensen said it was not feasible to do so because the
vessel was in a narrow passage and visibility was poor.
Several hours later, when the ship was in Nichols
Passage east of Gravina Island, Sorensen received a copy of the
DECs notice of violation, which was faxed to the vessel. At
about the same time, the ships radio operator gave Sorensen a
copy of the letter Flint had faxed to Beekman earlier that
morning asking the vessel to stay in port. Sorensen called
Schorr at the DEC at about 11:30 a.m. According to Flint, who
listened in on the conference call, Schorr asked Sorensen to
return to Ketchikan. Flint said Schorr was very adamant, the
fact that this was the state law, they needed to go back.
Schorr remembered the conversation differently. She
said she told Sorensen that he was in violation of state law and
asked him what his intentions were. Schorr said Sorensen told
her the vessel was headed to Cordova Bay. Schorr asked him his
estimated time of arrival, and he said about four hours. The
satellite phone connection was then cut off. The vessels
radioman called back and gave Schorr the vessels satellite phone
number and apologized for the vessels unintended violation.
Schorr testified that she did not tell Sorensen to return to
Ketchikan because she did not have the authority to do so. She
also testified that her notes of the conversation did not
indicate that she asked Sorensen to turn back.
Although the evidence on this point (i.e., whether
state officials directed Sorenson to return to port) is
conflicting, the question is whether the evidence, viewed in the
light most favorable to upholding the jurys verdict, is
sufficient to support the jurys decision.21 Viewing the evidence
in this light, even though Sorenson was initially told by Beekman
that he was good to go, Sorenson knew by 9:30 a.m. at the latest
(after speaking to Beekman on the ships mobile phone) that the
vessel was out of compliance, and, at least according to Flints
version of the later conversation between Sorenson and the DEC,
Sorenson was strongly advised by state officials at 11:30 a.m. to
turn the vessel around and head back to Ketchikan something he
did not do.
Given Schorrs conflicting testimony about this same
conversation, it is arguable that the jurys view of this incident
is against the weight of the evidence but that is not the
question before us.22 Rather, the issue presented to us is
whether the evidence is sufficient to support the jurys verdict
when viewed in the light most favorable to the jurys verdict.
Under that test, the evidence is sufficient, and we therefore
direct the district court to reinstate the jurys verdict.
Sorensen argues that his conviction should nevertheless
be overturned because it was SMS, not him, that had the duty to
obtain DEC approval of an oil spill contingency plan.
Alaska Statute 46.04.055(f) prohibits operating a
nontank vessel without an approved oil spill contingency plan.
But the duty to file an application for an oil spill contingency
plan with the DEC is established by regulation:
(a) ....
A person who is subject to AS 46.04.055(f)
must file an application for approval of a
nontank vessel plan as required under 18 AAC
75.400 - 18 AAC 75.420 and meet the
applicable requirements of 18 AAC 75.426 - 18
AAC 75.496. The application must be made
....
(5) for a nontank vessel, by
(A) the charterer, if the
nontank vessel is chartered by
demise;
(B) the operator;
(C) the owner, if the agents
or employees of the owner retain
control and responsibility for the
operation of the nontank vessel; or
(D) in any other case, the
person with
primary operational control[.][23]
Sorensen argues that under this regulation only one person or
entity is responsible for obtaining DEC approval of an oil spill
contingency plan. He argues that an operator under (B) has that
duty only if there is no responsible party under (A) that is,
only if the vessel is not chartered by demise (bareboat charter).
Having reviewed the regulatory history,24 we think
Sorensen is probably correct. As originally drafted,25 this
regulation by its plain language listed a hierarchy of mutually
exclusive categories.26 If the vessel was chartered by demise
(that is, bareboat charter), the charterer was the responsible
party. If not, the owner was the responsible party assuming the
owner or the owners agents retained control over and
responsibility for the operation of the vessel. In all other
cases, the person with primary operational control was the
responsible party.
The drafters did not add the operator subsection until
late in the rule-making process, when the DEC issued its final
agency draft.27 This change disrupted the clear structure of the
regulation, making it ambiguous. An operator as defined in AS
46.04.900 is a person who exerts general supervision and control
over a vessel. That definition includes the person or entity
that leases the vessel, the vessels master, the masters employer,
or any other person who, through an agent or contractor,
undertakes the general functioning of the vessel.28 This broad
definition potentially overlaps with every other listed
subsection: an operator under (B) might also be the charterer
under (A) or the owner under (C) and, by definition, will always
the person with primary operational control under (D).29 And yet
(D) provides that the person with primary operational control has
no duty to file an application unless none of the other
subsections identifies a responsible party.30 We think it likely
that the drafters intent was to insert the operator of the vessel
higher in the hierarchy of persons with a duty to file an oil
spill contingency plan application not to eliminate the
previously cohesive structure of the regulation.
But Sorensen was not convicted of violating the
regulatory duty to obtain DEC approval of an oil spill
contingency plan. He was convicted under AS 46.04.055(f) of
operating the Arctic Sunrise with criminal negligence as to
whether a contingency plan was on file with the DEC. Arguably,
in convicting Sorensen of this offense, the jury was influenced
by the jury instructions and argument suggesting he had a legal
duty to file an oil spill contingency plan. The jurors may have
found that Sorensen was criminally negligent in operating the
Arctic Sunrise without an oil spill contingency plan at least in
part because they concluded he had a legal obligation to obtain
DEC approval of such a plan. But Sorensen did not argue at trial
that he had no duty, as a matter of law, to file an oil spill
contingency plan. And he did not object to the jury instructions
or argument suggesting he had such a duty. Nor has he argued on
appeal that the court committed plain error. We therefore do not
decide this claim.
The trial record suggests that Sorensen reserved his
right to pursue post-trial motions in district court in the event
he did not prevail on his motion for judgment of acquittal.
After the jury returned its verdicts, Sorensens attorney
indicated he had post-trial motions to file. Judge Miller told
Sorensen he would allow additional time for post-trial motions if
he denied the defendants motions for judgment of acquittal.
Because the trial court granted those motions and set aside the
jurys verdicts, no post-trial motions were filed.
Criminal Rule 33(c) provides that a motion for new
trial shall be made within 5 days after verdict or finding of
guilt, or within such further time as the court may fix during
the 5-day period. Because Sorensen preserved his right to file
post-trial motions, he must be allowed to do so when his case
returns to the district court.
Given the procedural posture of this case, Sorensens
cross-appeal claims are not ripe for review. Because we have
affirmed Judge Millers decision setting aside the verdicts
against Greenpeace, Inc., its claims on cross-appeal are moot.
Conclusion
We AFFIRM the district courts decision setting aside
the jurys verdicts against Greenpeace, Inc., for its conduct on
July 12 and July 14 and against Sorensen for his conduct on July
12. We REVERSE the district courts decision setting aside the
jurys verdict against Sorensen for his conduct on July 14. The
case is remanded to the district court for further proceedings
consistent with this opinion. We do not retain jurisdiction.
_______________________________
1 See AS 46.04.055(f); AS 46.04.055(a).
2 Flints request that the vessel stay in port was not
memorialized in Flints or Fultzs notes of this conversation.
3 AS 46.04.055(f) and AS 46.04.055(a), respectively.
4 168 P.3d 499 (Alaska App. 2007).
5 Id. at 501.
6 Cf. Guerrero ex. rel. Guerrero v. Alaska Hous. Fin. Corp.,
123 P.3d 966, 971 (Alaska 2005).
7 Eide, 168 P.3d at 501-02 (independently reviewing the
trial courts decision to grant a motion for judgment of
acquittal); Siggelkow v. State, 648 P.2d 611, 613 (Alaska App.
1982) (independently reviewing the trial courts decision to deny
a motion for judgment of acquittal); see also Korean Air Lines
Co., Ltd. v. State, 779 P.2d 333, 338 (Alaska 1989)
(independently reviewing the trial courts grant of a judgment
n.o.v.).
8 AS 46.04.055(f) provides in full:
On and after May 26, 2003, a person may not
operate a nontank vessel within the waters of the
state or cause or permit the transfer of oil to or
from a nontank vessel unless the department has
approved an oil discharge prevention and
contingency plan covering that nontank vessel and
the person is in compliance with the plan.
9 AS 46.04.900(16) defines operator as:
the person who, through contract, lease, sublease,
or otherwise, exerts general supervision and
control of activities ... [on the vessel]; the
term includes, by way of example and not
limitation, a prime or general contractor, the
master of a vessel and the masters employer, or
any other person who, personally or through an
agent or contractor, undertakes the general
functioning of the ... [vessel].
10 AS 11.16.130 provides:
(a) Except as otherwise expressly provided,
an organization is legally accountable for
conduct constituting an offense if the
conduct
(1) is the conduct of its agent and
(A) within the scope of the agents employment
and in behalf of the organization; or
(B) is solicited, subsequently ratified, or
subsequently adopted by the organization; or
(2) consists of an omission to discharge a
specific duty of affirmative performance
imposed on organizations by law.
(b) In this section agent means a director,
officer, or employee of an organization or
any other person who is authorized to act in
behalf of the organization.
11 AS 11.16.130 (a)(1)(A).
12 AS 11.16.130 (a)(1)(B).
13 Nicholas v. Moore, 570 P.2d 174, 176-77 (Alaska 1977).
14 AS 11.16.130(a)(1)(B).
15 Alaska Criminal Code Revision Part II, at 27 (Tent.
Draft 1977) (emphasis added).
16 Sea Lion Corp. v. Air Logistics of Alaska, Inc., 787
P.2d 109, 117 (Alaska 1990) (quoting Bruton v. Automatic Welding
& Supply Corp., 513 P.2d 1122, 1127 (Alaska 1973) (quoting
Restatement (Second) of Agency 94, comment a (1957))).
17 837 P.2d 692 (Alaska 1992).
18 Id. at 701.
19 Id. (quoting Application of Lester, 386 N.Y.S.2d 509,
514 (N.Y. Sup. Ct. 1976)).
20 See Selle v. Gibb, 741 F.2d 896, 900 (7th Cir. 1984)
(citing Brady v. Southern Railway, 320 U.S. 476, 480, 64 S. Ct.
232, 234, 88 L. Ed. 239 (1943)) (other citations omitted) (a
court will reinstate a jury verdict after the grant of a judgment
of acquittal only if the evidence provides a sufficient basis
from which the jury could have reasonably reached a verdict
without speculation or drawing unreasonable inferences which
conflict with the undisputed facts).
21 See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981);
Pease v. State, 54 P.3d 316, 331 (Alaska App. 2002).
22 See New v. State, 714 P.2d 378, 381-82 (Alaska App.
1986) (discussing and distinguishing the different standards that
apply to appellate review of the sufficiency of the evidence to
support a verdict versus a motion for a new trial on the ground
that the verdict is against the weight of the evidence).
23 18 Alaska Administrative Code (AAC) 75.400.
24 We reviewed the history of the regulation governing
tank vessels, which served as the model for the regulation
governing of nontank vessels.
25 See DEC, Public Comment Markup Draft of 18 AAC 75
(Sept. 27, 1991).
26 IA Norman J. Singer, Sutherland Statutes and Statutory
Construction 21:14, at 181-82 (6th ed. 2002 revision)
(Generally, courts presume that or is used in a statute
disjunctively unless there is clear legislative intent to the
contrary.).
27 Compare DEC, Public Comment Markup Draft (Oct. 11,
1991) with DEC, Final Agency Draft (Oct. 26, 1991).
28 AS 46.04.900(16).
29 18 AAC 75.400(a)(5).
30 18 AAC 75.400(a)(5)(D).
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