Today a group of victims of Carnival Corporation’s environmental crimes sought to vacate the Court’s approval of an out of court settlement reached between the U.S. Government and Carnival Corporation.
The attorney for Fotini Duncombe (a Bahamian citizen and co-founder of a Bahamas Environmental group called “reEarth”), Theodore Thoma (the head of a environmental group called “Responsible Cruising in Alaska”), Eric Forrer (an Alaskan fisherman), and Ronn Buschmann (an Alaskan Resident), all of whom were seeking status under the Crime Victims’ Rights Act (CVRA), filed a writ of mandamus that seeks to vacate the settlement of probation violations approved by Judge Patricia Seitz on June 3, 2019. The Court approved what many viewed as a secret backroom deal struck between the U.S Government and the giant cruise company which resulted in a relatively small financial fine of just $20,000,000.
The environmental victims are not seeking any financial recovery for themselves.
Seattle attorney Knoll Lowney argued in the writ filed in the Eleventh Court of Appeal that Judge Seitz committed error by summarily denying his clients their rights under the CVRA without explanation and without conducting an evidentiary inquiry, or making findings of fact or conclusions of law. He argued that the Court erred in accepting the Government’s inaccurate and misleading statement that the criminal charges against Carnival allegedly involved only a single vessel, the Caribbean Princess, photo above, which allegedly did not commit illegal violations in Alaska or the Bahamas. The evidence, Lownet argues, shows that Carnival’s widespread criminal pollution occurred on at least five ships (Caribbean Princess, Golden Princess, Coral Princess, Grand Princess and Star Princess) continuously over a ten year period, and these ships unquestionably were operating and polluting in the waters of the Bahamas and Alaska for much of that ten year period.
The writ also references the original plea agreement which contains “an explicit settlement of crimes by Carnival and its subsidiaries for making and using false statements and records and obstruction of justice relating to improper discharges of oil and falsification of data across their entire fleets.”
Lowrey contended that the Court accepted the Government’s erroneous legal arguments that the victims did not have rights under the CVRA because the Information did not specify that Carnival’s environmental crimes occured in Alaska or the Bahamas, and victims of probation violations that constitute crimes allegedly have no rights under the CVRA. He argued that the scope of CVRA is not limited by the Information and victim’s rights can attach to post conviction crimes and proceedings.
There is no question of course that Carnival’s continued environmental crimes committed during the Court ordered probation took place in Alaska (where it committed the federal offense of discharging 25,000 gallons of untreated grey water in National Glacier Park) and in the Bahamas (where the Carnival Elation, photo above, discharged plastic items mixed together with food in the waters of the Bahamas).
Lowney is seeking to vacate the order approving the settlement agreement, to remand the case, and to order Judge Seitz to allow the environmental victims to participate in the probation violation proceedings.
A mandamus petition of this type requires the appellate court to decide the appeal within 72 hours (by Thursday, June 20, 2019).
It remains to be seen how the Eleventh Circuit will rule on the pending writ. In any event, a review of the writ and the accompanying attachments raise substantial issues whether the settlement deal was just another “sweet deal” for Carnival which resulted from its cozy relationship with U.S. Government.
Attorney Lowney points out that the parties repeatedly failed to involve or provide any notice to the environmental victims and “actively sought to preclude participation by victims and other impacted members of the public by keeping the terms of the Agreement secret.” He accurately points out that the settlement agreement reached between the Government and Carnival was not a transparent process; it was not even disclosed to the public until it was filed about an hour before the June 3rd hearing, effectively preventing the victims from even seeing the agreement before the hearing.
There also appears to be no question that the Government and Carnival negotiated for the scope of the formal charges to be substantially narrower than Carnival’s admitted criminal wrongdoing.
It is also appears clear in reading the writ that Carnival’s environmental crimes were widespread and pervasive. The writ points out that the original plea agreement (which resulted in a $40,000,000 fine) involved the criminal discharge of oil from secret valves installed on at least five Carnival-owned ships over a ten year period. The plea agreement also contained a “specific disclosure that Carnival had discovered false recordkeeping of oily waters in an unidentified number of ships across Carnival and its subsidiaries’ entire fleets.”
Most shocking is the reference in the writ to the evidence in the record establishing that Carnival’s “deliberate vessel pollution such as occurred in this case has been estimated to cause as much as eight times the amount of oil pollution each year as catastrophic spills such as the Exxon Valdez oil spill.” (emphasis added)
The Exxon Valdez disaster resulted in Exxon paying around $2,000,000,000 (billion) in clean-up costs and an additional $1,000,000,000 (billion) to settle related civil and criminal charges, plus a jury awarded $287,000,000 (million) in damages and $5,000,000,000 (billion) in punitive damages, which were reduced after an appeal to around $500,000,000 (million).
In this case, there is no trial, no award of damages, no punitive damages, no order of restitution and no ancillary payments. Just a pittance of a $20,000,000 fine (million), decided without any involvement of the victims of Carnival’s widespread and ongoing criminal violations, against a corporation which netted $3,200,000,000 (billion) in profits last year alone.
Such a small fine is hardly punitive in nature. It does not “smart” by causing the corporation financial pain designed to make the executives smarter. It is just a fraction of the costs of Carnival doing business. As one commentator said – Carnival’s fine (less than 0.07 % of net income) was a tickle of their feet … which made them laugh, all the way to the bank.”
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Photo Credit: Carnival Elation – Hargcb – CC BY-SA commons / wikimedia; Caribbean Princess – Yankeesman312 – CC BY-SA 3.0, commons / wikimedia; Government Exhibit, appendix, volume 2-97; Exxon Valdez – History.com.