
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-2188                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    PEDRO RIVERA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Coffin, Senior Circuit Judge,                                    ____________________                   Selya, Boudin, Stahl and Lynch, Circuit Judges.                                                   ______________                                 ____________________            Rafael Castro Lang and Rachel Brill for appellant.            __________________     ____________            Andrew C. Mergen with whom Anne S. Almy, Charles A. De Monaco,            ________________           ____________  ____________________        Michael J. Woods, David C. Shilton, Peter A. Appel, Lisa E. Jones,        ________________  ________________  ______________  _____________        Lois J. Schiffer, Assistant Attorney General, Environment & Natural        ________________        Resources Division, Guillermo Gil, United States Attorney, Jorge E.                            _____________                          ________        Vega-Pacheco, Assistant United States Attorney, and Miguel A. Pereira,        ____________                                        _________________        Assistant United States Attorney, were on brief for appellee.            James F. Moseley, Patrick J. Bonner, and Robert B. Parrish on            ________________  _________________      _________________        brief for Maritime Law Association, amicus curiae.                                 ____________________                                   OPINION EN BANC                                 ____________________                                 ____________________                                   December 2, 1997                                 ____________________               COFFIN,  Senior  Circuit  Judge.    Appellant  Pedro  Rivera               COFFIN,  Senior  Circuit  Judge                        ______________________          appeals  his conviction  under  46 U.S.C.    10908  for knowingly          sending a  vessel to  sea in an  unseaworthy condition  likely to          endanger  the  life  of  an  individual.   He  alleges  that  his          prosecution  was invalid, that the evidence was insufficient, and          various  trial errors.    After  a divided  panel  of this  court          affirmed  the  conviction, we  ordered  en  banc  hearing on  the                                                  __  ____          statutory and sufficiency issues.  We now find the prosecution to          be  proper,   but  conclude   that  the   evidence  adduced   was          insufficient  to establish  that Rivera  knew  that the  vessel's          condition was  "likely to endanger  the life  of an  individual."          The judgment of conviction therefore must be reversed.1                                    I.  Background                                        __________               This  case arises  out of  a major  oil spill  that occurred          during the night of January 6-7, 1994  off the coast of San Juan,          Puerto Rico.  The accident occurred after the tow wire connecting          the tugboat Emily S.  to the barge  Morris J. Berman parted;  the                      ________                ________________          barge  subsequently  ran   aground,  spilling  its  oily   cargo.          Appellant Rivera  was the  general manager  of the  Bunker Group,          which managed the tugboat.               On the night  of the accident, Rivera had  directed the crew          of the  Emily S. to transport the Morris  J. Berman from San Juan                  ________                  _________________          to  Antigua.   Although  various  crew members  of  the Emily  S.                                                                  _________                                        ____________________               1 The asserted trial errors were not certified for en banc                                                                  __ ____          review, and the panel's rejection of them therefore is not before          us.  Because our disposition renders those errors moot, we do not          need to re-adopt that portion of the withdrawn opinion.                                          -2-          previously  had  told  Rivera  of  the  towing  wire's  seriously          deteriorated condition, and although a new wire had  been ordered          and was  available,2 the  voyage proceeded with  the old  wire in          place.  Shortly after the vessel  left San Juan Harbor, the  wire          parted.  Captain Roy McMichael repaired the wire, but did not use          a thimble, a device that  prevents abrasion in a repaired section          of  wire.  Several hours later, the  wire parted again; the barge          drifted off and went aground.               Rivera was found guilty  by a jury of violating  46 U.S.C.            10908 for knowingly sending the Emily S. to sea in an unseaworthy                                          ________          condition likely to endanger life.3   We review his conviction on          both statutory and evidentiary grounds.                       II. Interpretation of 46 U.S.C.   10908                           ___________________________________               The  first question certified  for en banc  consideration is                                                  __ ____          one  of statutory interpretation:  was Rivera's prosecution under          section  10908 flawed  because  certain procedural  prerequisites          were not met?  Section 10908 provides as follows:                    A person that knowingly sends or attempts to send,               or that is a party to  sending or attempting to send, a               vessel of the  United States to sea,  in an unseaworthy               state  that  is  likely  to  endanger the  life  of  an               individual,  shall  be  fined  not  more  than  $1,000,               imprisoned for not more than 5 years, or both.                                        ____________________               2 The wire apparently was not installed before the trip          because workers were unavailable as a result of the Three Kings'          holiday.                3 The jury also convicted Rivera for knowingly violating a          Coast Guard regulation, see 33 U.S.C.   1232(b)(1), but the                                  ___          district court later granted Rivera's motion for acquittal on          that count.                                         -3-          This is  the final  provision in Chapter  109 of  Title 46.   The          chapter,  entitled  "Proceedings   on  Unseaworthiness,"  focuses          primarily   on  procedures  to  be   used  by  seamen  to  report          unseaworthy vessels.  Rivera maintains that these procedures must          be instituted  before a criminal prosecution may be brought under          section 10908.   The  government argues that  section 10908  is a          freestanding statute  that  on  its  own  provides  a  basis  for          criminal liability.               To  resolve this  dispute,  we  must  confront  three  major          analytical  issues:   (1) to  what extent  should the  context of          section 10908 within Chapter 109 guide our interpretation  of its          language? (2) what  role should be played by legislative history?          (3)  is our interpretation  "palpably unreasonable"?   We address          each of these substantial issues  in Section A below, and briefly          note in  Section B  inconsistencies in this  area of law  that we          believe deserve the attention of Congress.               A.  An  Examination  of Context,  Legislative  History,  and                   ________________________________________________________          Reasonableness.          _______________               We enter our analysis by noting that the interpretation of a          statute presents a purely legal  question, and thus our review is          de novo.   See Strickland v. Commissioner, 96 F.3d  542, 545 (1st          __ ____    ___ __________    ____________          Cir. 1996).               (1) Plain Language or Beyond?  The well established approach                   _________________________          to statutory construction begins with the  actual language of the          provision, Landreth  Timber Co.  v. Landreth, 471  U.S. 681,  685                     ____________________     ________          (1985).  When the "plain meaning" is clear on its face, "the sole                                         -4-          function of the courts is to enforce it according to its terms."           Caminetti  v. United  States,  242 U.S.  470, 485  (1917); United          _________     ______________                               ______          States v. Bohai  Trading Co., 45  F.3d 577, 581 (1st  Cir. 1995).          ______    __________________          From one vantage point, this is the beginning and the end  of our          analysis.   On  its  face,  there is  nothing  unclear about  the          meaning  of section  10908.    Its language  does  not limit  its          application  to "a person"  against whom Chapter  109 proceedings          have  been  brought.     Rather,  it  sets   out  three  specific          requirements for finding a person culpable: (1) knowingly sending          a  vessel  to  sea;  (2)  knowing  that  the  vessel  was  in  an          unseaworthy condition; and  (3) knowing that the  unseaworthiness          was such  that it  would likely  endanger life.   Straightforward          application of  the plain language  rule leaves no place  for the          procedural prerequisites asserted by Rivera.                  There  is, however, a respectable contrary view that reading          Chapter  109 as  a whole  leads to  a different  understanding of          section 10908.  From this  perspective, section 10908 is designed          to enhance  the complaint  procedures outlined  in the  preceding          sections by criminalizing  a knowing attempt to  take a dangerous          vessel to sea after an official finding of unseaworthiness or the          lodging of a complaint pursuant to those sections.4                                        ____________________               4 Chapter 109 was enacted in 1983 as Public Law 98-89.  It          provides for the filing of a complaint with the master of a          vessel by the "chief and second mates or a majority of the crew,"          before a voyage takes place, if the vessel appears unfit to the          seaman, 46 U.S.C.   10902(a)(1).  A master receiving such a          complaint is then required to apply to a district court of the          United States for the appointment of "3 experienced and skilled          marine surveyors to examine the vessel for the defects or          insufficiencies complained of."  Id.; id. at   10903(a).  After                                           ___  ___                                         -5-               Rivera  maintains  that  this contextual  interpretation  of          section  10908  is  supported  by  a  reading  of  the  statutory          provisions from which  Chapter 109 is derived, 46  U.S.C.    653-          658.  Those provisions, originally enacted in  1840, were amended          in  1983  for  the primary  purpose  of  re-organizing  the then-          existing  maritime legislation  on  the  safety  of  vessels  and          protection  of seamen  into  a  more  comprehensible  and  easily          administered scheme.   See H.R.  Rep. No. 98-338, at  113 (1983),                                 ___          reprinted in  1983 U.S.C.C.A.N.  924,  925.   Former section  658          ____________          consisted  of four  sentences, the  next-to-last  of which,  with          minor revision, became new section 10908.5                                        ____________________          their investigation, the surveyors must make a report stating          whether the vessel is fit and, if not, must make appropriate          recommendations as to how to render the vessel seaworthy.  Id. at                                                                     ___            10903(a).  The district court then passes upon the report and          renders its judgment, which must be complied with by the master          and crew of the vessel.  Id. at   10903(b).  The remaining                                   ___          sections of Chapter 109 detail further consequences: section          10905 provides for the filing of complaints in foreign ports;          section 10906 provides for the discharge of the crew upon a          finding of the vessel's unsuitability; section 10907 prohibits a          master from interfering with a seaman's right to file a complaint          under this chapter.  Finally, section 10908, the provision at          issue here, provides for criminal sanctions.               5 The opening two sentences of section 658 were linked in          content to the preceding provisions on the appointment of vessel          inspectors by consular officials in foreign ports, and specified          when such an official should discharge a crew on account of          unseaworthiness.  The third sentence began as follows:               If any person knowingly sends or attempts to send or is               party to the sending or attempting to send an American               ship to sea, in the foreign or coastwise trade, in such               an unseaworthy state that the life of any person is               likely to be thereby endangered, he shall, in respect               of each offense, be guilty of a misdemeanor, and shall               be punished by a fine not to exceed $1,000 or by               imprisonment not to exceed five years, or both, . . . .                                         -6-               Rivera points particularly  to the word "such"  in the final          portion of section  658 -- the reference to sending a ship to sea          in  "such  an unseaworthy  state"  -- as  evidence  that criminal               such          liability was intended only when a finding  of unseaworthiness as          specified in the prior sections  was made.  Although that portion          of section 658  was separately codified as section  10908 as part          of the 1983  amendments, and the word "such"  was deleted, Rivera          maintains  that  the  context  makes  clear  that  the  focus  on          unseaworthiness  remained  the  same:  criminal  liability  under          section  10908 is applicable  only when unseaworthiness  is found          pursuant to the preceding procedural mechanisms.               We have difficulty  drawing so much  from the context  here.          While cognizant  of "the cardinal  rule that  a statute is  to be          read as a whole  . . . , since the meaning of statutory language,          plain or not,  depends on context," Conroy v.  Aniskoff, 507 U.S.                                              ______     ________          511, 515 (1993) (citations omitted),  we gain no insight from the          surrounding   text  in  this  instance.    Indeed,  the  relevant          "context" is subject to different interpretations.  Rivera argues          that the  backdrop is a  multi-part procedural scheme  for making          determinations  of   unseaworthiness  based  on   claims  brought          primarily by  seamen.    The government  takes  a  broader  view,          describing the context simply as  a set of provisions  concerning          unseaworthiness,  with the  criminal  prosecution  serving as  an                                        ____________________          The next clause of the sentence provided a defense to the          violation based on reasonableness.                                         -7-          appropriately harsh penalty for a limited category of individuals          who knowingly put lives in jeopardy.               Both of these frameworks are  consistent with what we see as          the overall  purpose of the  legislation -- to protect  seamen --          and we  therefore find no  aid to construction in  the provisions          surrounding section 10908.6  Nor does a focus on the word "such,"          as Rivera urges, move  us beyond the plain language.  Although we          believe  the use  of "such"  in  the old  statute appears  almost          certainly  to look  forward  to  the  extent  of  unseaworthiness          necessary to trigger  liability, rather than back  to a preceding          finding,  there is no room for  argument that the language in the          recodified provision is  ambiguous.  Taking section 10908 at face          value, without limitations, avoids any uncertainty.7                                        ____________________               6 Context plays a larger role when a literal reading of the          language at issue would do violence to the overall scheme.  See                                                                      ___          United States v. Falvey, 676 F.2d 871, 875 (1st Cir. 1982)          _____________    ______          ("[C]ourts are not bound to read a statute literally in a manner          entirely at odds with its history and apparent intent.")           Construing section 10908 as a stand-alone provision not only          supports Chapter 109's overall purpose of protecting seamen but          also promotes Congress's apparent intent to increase          responsibility for life-threatening accidents.  See infra at 11.                                                            ___ _____               7 This is not unlike the conflict between Justices Brennan          and Powell in Maine v. Thiboutot, 448 U.S. 1 (1980).  Justice                        _____    _________          Brennan's majority opinion held that the phrase "and laws" in 42          U.S.C.   1983 encompassed violations of all federal statutory as          well as constitutional laws, while Justice Powell in dissent          asserted that the context clearly confined coverage of the          provision to, at most, statutes providing specifically for          equality of rights.  As did the majority there, we think the          better approach, in the absence of clear guidance to the          contrary, is to accept the provision as written, without reading          in unstated limitations.                                          -8-               Our  conviction that  we should  not look  beyond the  plain          language of  section 10908 is  only strengthened when  we examine          both the  limited legislative  history of  the provision and  the          rationality of this interpretation.               (2) The Role  of Legislative History.  Keeping  in mind that                   ________________________________          resort to legislative history typically is inappropriate when the          meaning of a  statute is plainly discernible from  its words, see                                                                        ___          Laracuente v.  Chase Manhattan  Bank, 891 F.2d  17, 23  (1st Cir.          __________     _____________________          1989),  we  engage in  this  discussion solely  to  reinforce our          conclusion that  this case is  best resolved through  reliance on          the plain  language rule.   In  a case  such as  this, where  the          "statute's  text  is   encompassing,  clear  on  its   face,  and          productive of  a  plausible result,"  State  of Rhode  Island  v.                                                _______________________          Narragansett Indian Tribe, 19 F.3d  685, 698 (1st Cir. 1994), our          _________________________          inquiry, at most, should be aimed  at determining "`whether there          is a "clearly  expressed legislative intention" contrary  to [the          statutory]  language, which would require [the court] to question          the strong presumption that Congress expresses its intent through          the language it  chooses.'" Id. (quoting INS  v. Cardoza-Fonseca,                                      ___          ___     _______________          480 U.S. 421, 432 n.12 (1987)).               The signals here are mixed.  While the stated purpose of the          legislation  was simply to  recodify in an  organized fashion the          then-existing  law  relating   to  the  safety  of   vessels  and          protection of seamen8 -- suggesting that no changes were intended                                        ____________________               8 House Report No. 98-338 states:                                         -9-          --  the  accompanying  House Report  anticipated  questions about          substantive revisions:               [T]he  bill  . .  .  does in  fact  make  a great  many               _______________________________________________________               substantive  changes to the present law.  Those changes               _______________________________________               are   all  either   minor   changes,  adjustments,   or               modifications, or  they are more significant changes to                              _____________________________________               which the Committee received no objection and which the               Committee  believed  would   enhance  the  clarity  and               effectiveness  of  the  law  and  the  [sic]  generally               accepted by the industry.  Thus, if a comparison of the               language  of this bill with the existing law shows that               a  substantive  change  has  resulted,   it  should  be                                                        ______________               understood  that   that  change  was  intended  by  the               _______________________________________________________               Committee.   The Committee  intends and hopes  that the               _________               interpretation of the maritime  safety laws as codified               and enacted by this bill  will be based on the language               of the bill itself.  The bill, as reported, is based on               that premise.  There should, therefore, be little or no               occasion to  refer to  the statutes  being repealed  in               order to interpret the provisions of this bill.                    The Committee also feels, as the courts have held,               that the literal language of the statute should control               the disposition of  the cases.  There is  no mandate in                                               _______________________               logic  or in  case  law  for  reliance  on  legislative               _______________________________________________________               history to reach a result contrary to the plain meaning               _______________________________________________________               of the statute,  particularly where that plain  meaning               ______________               is in no way unreasonable.          H.R.  Rep.  No.   98-338,  at  120  (1983),  reprinted   in  1983                                                       ______________          U.S.C.C.A.N. 924, 932 (emphasis added).   Thus, the argument that          Chapter  109  must be  interpreted  to contain  exactly  the same          content  as the  provisions it  replaced  is met  head-on by  the          report's statement to the contrary.                                        ____________________               The ultimate aim of this legislation is three fold: to               make maritime safety and seamen protection law easier               for the Coast Guard to administer, to make it less               cumbersome for the maritime community to use, and to               make it more understandable for everyone involved.          H.R. Rep. No. 98-338, at 113, reprinted in 1983 U.S.C.C.A.N. 924,                                        ____________          925.                                         -10-               Additionally, as the  government asserts, it is  by no means          clear that  former section 658  required a civil  adjudication of          unseaworthiness  as a  prerequisite  to  a criminal  prosecution.          Although it was included within the same  section as instructions          for the discharge  or retention of a crew in a foreign port after          a survey of vessel conditions, the criminal provision was phrased          generally  and  did   not  reference  a  civil   adjudication  of          unseaworthiness.  As we noted earlier, see supra at 8, the use of                                                 ___ _____          the  word "such" in section  658 in all  likelihood did not refer          back to "such" a prior civil adjudication.               Whatever the intended meaning of section 658, it seems to us          that the recodification's affirmative separation of section 10908          from other provisions, and deletion of the word "such," reflect a          deliberate  decision that  liability under  the section is  to be          distinct  from, and not  dependent upon, compliance  with Chapter          109's  civil provisions.  See Cardoza-Fonesca, 480 U.S. at 442-43                                    ___ _______________          ("Few principles  of statutory  construction are  more compelling          than the  proposition that Congress does not  intend sub silentio                                                               ___ ________          to enact  statutory language  that it has  earlier   discarded in          favor of other language.") (citation omitted).               The  suggestion that Congress was strengthening the sanction          imposed  is  reinforced  by  yet  another  change.   Section  658          included defenses to criminal  liability based on reasonableness,          specifying  that  guilt and  punishment would  not attach  if the          individual charged with sending off an unseaworthy vessel               proves  that either  he used  all  reasonable means  to               insure her being  sent to sea in a  seaworthy state, or                                         -11-               that  her going  to sea  in an  unseaworthy state  was,               under the circumstances, reasonable and justifiable . .               . .          Elimination   of  these   defenses  strikes   us   as  far   from          insignificant, contributing to  our sense that Congress  intended          to clarify and to  tighten the obligation of those in  control of          vessels to prevent life-threatening accidents.                 We  thus find no unequivocal statement of legislative intent          that would permit us to insert a limitation  where none exists in          the language of section 10908.9                                        ____________________               9 We briefly note two other arguments made in support of          Rivera's position.  First, Rivera asserts that the competing          interpretations of section 10908 warrant resort to the rule of          lenity, which "commands that genuine ambiguities affecting a          criminal statute's scope be resolved in the defendant's favor,"          United States v. Bowen, Nos. 96-2289, 90, slip op. at 15 (1st          _____________    _____          Cir. Sept. 5, 1997).  The rule is triggered only when, "`at the          end of a thorough inquiry, the meaning of a criminal statute          remains obscure,'" Id. (quoting United States v. O'Neil, 11 F.3d                             ___          _____________    ______          292, 301 n.10 (1st Cir. 1993)).  As we have discussed, this is          not such a case.  The plain language of section 10908 is not          ambiguous, and the rule of lenity is therefore inapplicable.               Second, the Maritime Law Association of the United States          contends in its amicus brief that the government's interpretation          of section 10908 must be wrong because it will adversely affect          the long-standing right of vessel owners to utilize the          Limitation of Vessel Owner's Liability Act, 46 U.S.C.    181-189.           Under the Act, damages claims against a vessel owner following an          accident may be limited to the value of the vessel and freight on          board if the mishap occurred without the privity or knowledge of          the owner.  See generally Hercules Carriers, Inc. v. Claimant                      ___ _________ _______________________    ________          State of Florida, 768 F.2d 1558, 1563-64 (11th Cir. 1985).          ________________               The MLA suggests that the prospect of criminal liability          under section 10908 will chill the use of the Limitation Act out          of fear that an adverse finding under that provision would be          used as prima facie evidence of the crime.  The two statutes,                  _____ _____          however, feature different standards of proof and different          burdens of persuasion; the greater protections accorded criminal          defendants guarantee that a decision against a vessel owner in a          limitation proceeding will not establish a "prima facie" criminal          case under section 10908.  Moreover, at least one other criminal          provision involving negligent conduct by ship officers and owners          apparently has existed side-by-side with the Limitation Act for                                         -12-               (3) An absurd result?  It is a common occurrence in  the law                   _________________          that  black-and-white principles have  an associated set  of grey          areas.  Such is the case with the plain language rule.   Though a          solid  anchor  of  statutory  construction,  it  is  not  without          exceptions,  even   in   the  absence   of  explicitly   contrary          legislative  history.   We have  recognized  that a  "provision's          plain  meaning must  govern its  application,  unless a  palpably                                                         ______          unreasonable outcome  would result," Massachusetts  v. Blackstone                                               _____________     __________          Valley  Elec. Co.,  67 F.3d  981, 986  (1st Cir.  1995) (emphasis          _________________          added); see also  Sullivan v. CIA, 992 F.2d 1249,  1252 (1st Cir.                  ___ ____  ________    ___          1993) ("Courts  will only look  behind statutory language  in the          rare  case where  a literal  reading must  be shunned  because it          would produce  an absurd outcome, .  . . or when  the legislature          has otherwise blown an uncertain trumpet.") (citations omitted).               Rivera contends that this is such  a rare case.  He  asserts          that the imposition  of criminal sanctions without  the necessary          prerequisites  "will  convert  untold  numbers  of   unsuspecting          persons into prospective criminals," and offers the fact that the          provision  has  never  before been  enforced  to  demonstrate the          injustice of upholding a prosecution  that was not preceded by an          administrative finding of unseaworthiness.               Our  view,  to  the  contrary,  is  that  the  provision  is          sufficiently  limited  in  scope  to  eliminate  the  specter  of          thousands  of  prosecutions  based   on  wide-ranging  claims  of          unseaworthiness, and that  irrational results will come  not from                                        ____________________          some time.  See 18 U.S.C.A.   1115 (listing numerous cases).                      ___                                         -13-          application of section 10908 in  isolation but instead would come          from requiring that  the complaint procedure be  completed before          the filing of criminal charges.  To focus on the  many relatively          minor  forms of unseaworthiness,  as Rivera does  in projecting a          flood  of  prosecutions,  is to  seize  on  only  a  part of  the          definition  of  the  crime.    The  criminal  provision  requires          knowledge not only  that the vessel is unseaworthy  but also that          it is afflicted with a defect that is  "likely to endanger" life.          Our discussion in  Section III, infra, demonstrates  that run-of-                                          _____          the-mill unseaworthiness cases will not fall within this embrace.          On  the  other  hand,  if  growing  numbers  of  individuals  are          prosecuted  and convicted  under the  required  standard, we  see          nothing  inconsistent  with  the  apparent  safety  objective  of          Congress.               As for the logic of a  civil prerequisite, it seems that  an          uneven enforcement of law would result.  If the crew and officers          of a vessel  were intimidated or unknowing, they  might not bring          to light egregious  circumstances of unseaworthiness that  others          might have  discovered and reported.   We think it  irrational to          posit that a prosecution for the dangerous conduct  proscribed by          section  10908 could  be barred  simply because  a ship  owner or          other potential defendant was able to prevent  a civil proceeding          through  deception or  strong-arm tactics.    The Third  Circuit,          faced with  a similar question  under the Clean Water  Act, aptly          observed  that "we  see no  reason why  the Government  should be          hampered by prerequisites to seeking criminal sanctions under the                                         -14-          Act. . . . Although continued discharges after notification could          be one way for the government  to prove scienter, it is certainly          not the only  way to establish willful violations," United States                                                              _____________          v. Frezzo Bros., Inc., 602 F.2d 1123, 1126 (3d Cir. 1979).10             __________________               Nor does the novelty of  this prosecution suggest to us that          it is unfair or absurd.  The prior lack of reported  prosecutions          under  section 10908 or its predecessor may  be a function of the          fact that its  coverage is narrow and that  other provisions also          reach  aspects  of  the  conduct  that  is  actionable  under it.          Section 1115  of Title 18, for example, makes  it a crime for any          person employed  on a vessel,  or the owner  or charterer  of the          vessel,  to destroy "the life  of any person" through misconduct,          negligence, or  inattention to duties.   A person who  operates a          vessel in  a grossly negligent  manner "that endangers  the life,          limb, or  property of  a person" commits  a misdemeanor  under 46          U.S.C.    2302(b).  Prosecutors  often have a range  of statutory          choices  in bringing  charges,  and  the  historical  neglect  of          section 10908 and its predecessor, section 658, may reflect  only          that it was less obvious  than other overlapping statutes because                                        ____________________               10 The defendants in Frezzo Bros. argued that the                                    ____________          Environmental Protection Agency could seek criminal remedies only          after first giving notice of the alleged violations of the act or          instituting a civil action.  602 F.2d at 1124.  They also          contended that a "willful" violation of the Clean Water Act could          be established only where a party given notice of its violations          continued polluting.  The Third Circuit rejected these          contentions and held that the prosecutorial discretion of the          government was not bound by civil proceedings where "nothing in          the text . . . compels the conclusion that prior written notice,          other administrative or civil remedies are prerequisite to          criminal proceedings under the Act."  Id. at 1126.                                                 ___                                         -15-          of its  placement at the  end of a provision  primarily concerned          with  administrative procedures.   See  United  States v.  Nippon                                             ___  ______________     ______          Paper Indus. Co.,  109 F.3d 1,  6 (1st Cir.  1997), petition  for          ________________                                    _____________          cert. filed, 65 U.S.L.W. 3839  (U.S. June 13, 1997) (No. 96-1987)          ___________          (novel  use of  a statute is  not alone  a basis for  reversing a          conviction).                In  sum, we cannot  say that punishing  a responsible person          for knowingly sending a vessel to  sea in such a condition as  to          endanger life  is so  "palpably unreasonable,"  Blackstone Valley                                                          _________________          Elec. Co., 67  F.3d at 986, "difficult to  fathom," United States          _________                                           _____________          v.  Indelicato,  97  F.3d  627,  629  (1st  Cir. 1996)  (citation              __________          omitted), or  "absurd," Sullivan, 992  F.2d at 1252, as  to trump                                  ________          the unvarnished language of section 10908.11               C. Matters for Congressional Attention.                  ___________________________________               Although we are confident that our conclusion is ordained by          the applicable principles of statutory construction, we recognize          that it has some puzzling  ramifications.  Section 10908 does not          apply to  fishing vessels  or yachts,  apparently exempts  harbor          craft  and  other vessels  that  operate  only on  inland  waters          (because  they are not being  sent "to sea"),  and does not reach                                        ____________________               11 We find some support for our judgment that criminal          liability in this context is rational in the court's reference to          section 10908 in Seymore v. Lake Tahoe Cruises, Inc., 888 F.                           _______    ________________________          Supp. 1029, 1035 (E.D. Cal. 1995).  The court there recognized a          wrongful termination cause of action in favor of a captain          terminated for refusing to pilot a vessel he believed was          unseaworthy, posing an unreasonable risk to passengers and crew.           In endorsing the pilot's claim, the court pointed to section          10908 as evidence of the strong public policy at issue.  That          court, at least, did not view criminal responsibility for such          life-threatening conduct to be "absurd."                                         -16-          foreign vessels  operating in United  States waters.   The scheme          thus  operates erratically  in protecting  seamen from  dangerous          conditions.               Similar maritime safety  statutes cover more territory,  but          do  not fill  in  all of  the  gaps.   Section 1115  of  Title 18          punishes negligence and misconduct by any "person employed on any          steamboat or vessel" that results  in loss of life, and similarly          imposes  criminal   responsibility  on  owners,   charterers  and          inspectors  if  their fraud,  misconduct  or neglect  leads  to a          death.    Section  2302  of  Title  46  specifies  penalties  for          endangering life or  property through negligent operation  of any          vessel in U.S. waters and of U.S.-owned vessels on the high seas.               It would be of value, we think, for Congress to examine this          area of law  for the purpose of evaluating whether to make safety          standards more consistent across categories of vessels and in all          locations subject to United States jurisdiction.                            III.  Sufficiency of the Evidence                                ___________________________               The second question certified for  en banc review is whether                                                  __ ____          the  government  produced  sufficient  evidence  to  support  the          verdict that  Rivera "knowingly" sent the  Emily S. to sea  in an                                                     ________          "unseaworthy"  condition "likely  to  endanger  the  life  of  an          individual."12   When assessing a challenge to the sufficiency of                                        ____________________               12 The term "unseaworthy" is not defined within the statute,          and the question was raised at oral argument whether it should be          given a more limited meaning within this criminal context than in          the maritime setting, where it is "essentially a species of          liability without fault," Seas Shipping Co. v. Sieracki, 328 U.S.                                    _________________    ________                                         -17-          the evidence,  "`we review  the record  to determine  whether the          evidence  and reasonable inferences  therefrom, taken as  a whole          and in the light most favorable to the prosecution, would allow a          rational  jury to determine  beyond a  reasonable doubt  that the          defendant[]   [was]  guilty  as  charged.'"    United  States  v.                                                         ______________          Sullivan, 85 F.3d 743, 747 (1st Cir. 1996) (quoting United States          ________                                            _____________          v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993)).             ___________               The  original panel opinion noted that a "painstaking review          of the record" had taken place, and  we again have read the trial          transcript in  its entirety.   Although we remain  convinced that          the  jury had ample evidence upon  which to base its finding that          Rivera knowingly  sent an  unseaworthy vessel to  sea, we  do not          have the  same conviction  with respect to  the final  element of          section 10908, knowledge  that the unseaworthiness was  such that          it would likely  endanger life.  We therefore  begin our analysis          by  repeating  essentially  verbatim the  panel's  discussion  of          unseaworthiness, and then proceed to  explain why the evidence of          likely to endanger was insufficient to support the conviction.               A.  Knowingly sending  a  vessel to  sea  in an  unseaworthy                   ________________________________________________________          condition          _________                                        ____________________          85, 94 (1946).  Because we believe the mens rea requirement                                                 ____ ___          ("knowingly") and the "likely to endanger the life of an          individual" element serve to sharply limit prosecutions under the          provision, we see no reason to depart from the common usage of          the term.  We therefore understand an "unseaworthy" vessel to be          one not properly outfitted or safe for a voyage at sea.  See The                                                                   ___ ___          Random House Dictionary of the English Language 1728 (2d ed.          _______________________________________________          unabridged 1987).                                         -18-               We  note  at  the  outset  that Rivera  had  many  years  of          experience in  the tug and  barge industry, having served  with a          major  tug  and  barge  company  in  Puerto  Rico  prior  to  his          employment with the Bunker Group.  In  addition,  the  record  is          replete with instances indicating that Rivera was informed before          the fateful voyage of the precarious condition of the tow wire:               --   Roy McMichael,  the captain of  the tugboat,  testified          that  before  the vessel  set  out,  he  raised with  Rivera  the          condition  of the  wire, the  need for  its replacement,  and the          difficulty of getting the repair performed due to the holiday.               --   Victor Martinez, who  served as a  mate on  the voyage,          testified that he  had discussed with Rivera that "the conditions          [sic] of the wire were not too favorable."               -- Yaacov Eisak,  who served as the tugboat  engineer on the          Emily S., testified that in  December 1993 or early January 1994,          ________          he had "about  two" conversations with Pedro Rivera,  in which he          joked with  him that "we  should get some  bait and we  can catch          some fish with  so many hooks  what [sic] we  were having on  the          wire."13               --   Leonard  Furmanski,  who had  previously  served as  an          engineer on the Emily S.  when she experienced a prior separation                          ________          of the wire as the boat left Guayanilla in August 1993, testified          that on his return to San  Juan, he told Rivera that it was  time          to replace the wire.                                        ____________________               13 When tow wires deteriorate, short sections of wire split          off and protrude in what are colloquially known as "fish hooks."                                         -19-               --    Danny Kehoe,  who  alternated  with McMichael  as  the          captain  of the  tugboat,  and who  was at  the  helm during  the          Guayanilla parting, testified  that he told Rivera "at least six,          seven times" that the towing wire  needed to be replaced, and  he          made an entry  in the boat's logbook on December 8, 1993 that the          cable  required  replacing and  that he  had so  informed Rivera.          Kehoe testified  that he had  made this entry because  he thought          Rivera was not taking him seriously.               The jury  also heard expert  evidence on the subject  of the          wire's  condition.   The government  presented  the testimony  of          Glenn Hargrave, a tugboat captain,  who testified that it was his          opinion, based on his review  of the Coast Guard report,  the FBI          report and its  accompanying photographs, and on  his examination          of  the  wire itself,14  that  the wire  was  not fit  for towing          operations as  of the  date of the  accident.  FBI  Special Agent          Tobin characterized  the "embrittled" and "deteriorated"  wire as          "a disaster waiting to happen."               Faced  with this  evidence of the  wire's condition  and the          multiple  warnings about  the  need  to replace  it,  as well  as          evidence  of  Rivera's  extensive experience  in  this  field, we          cannot  say that  there was  insufficient  evidence presented  to          support the jury's conclusion that Rivera knowingly sent a vessel          to sea  in an unseaworthy condition.  We recognize that there was                                        ____________________               14 Specifically, Hargrave pointed to the large number of          "fish hooks" on the wire, the severe corrosion of the wire, and          the lack of flexibility of the wire, as indicating its lack of          fitness for towing service on January 6, 1994.                                         -20-          competing evidence.   Rivera's expert, for example,  a specialist          in metallurgy, testified that the  cable was strong enough to tow          the load on the  day of the accident.  Some  evidence also showed          that  Rivera  consulted   with  Captain  McMichael  and   another          experienced  captain, George Emanuel,  about whether to  make and          continue the voyage without first replacing the tow wire.               The  jury, however, was entitled to discount Rivera's expert          in  light of the  other testimony, and  could have  found on this          record  that Rivera  decided  to  go ahead  with  the voyage  not          because  he believed  the  vessel was  seaworthy  but because  he          thought he  could get by  with one more trip  using the seriously          deteriorated  wire.  Section  10908 seems designed  for precisely          this sort  of situation,  imposing liability  when an  individual          deliberately  fails  to  take  remedial  measures  for  pragmatic          reasons, at the  expense of safety.   We therefore hold  that the          evidence was  sufficient for  the jury to  find that  Rivera knew          that the Emily S. was unseaworthy.                   ________               B. "Likely to Endanger"                  ____________________               We now revisit the question  of whether there was sufficient          evidence  for a jury to find that Rivera knew the tug's condition          was "likely to endanger the life of an individual."               In so doing, we face two conflicting constraints.  The first          is that, as in all criminal appeals by defendants, we must give a          great deal of  deference to the evidence adduced in  favor of the          government.  The second is that we must be vigilant in preventing          any slackening of  a standard that Congress saw fit to require as                                         -21-          the  necessary predicate  of the  ultimate  sanction of  criminal          liability.               In a prosecution of this nature, there is an inherent hazard          in the necessity of two  juxtaposed jury findings, one  involving          knowledge   of  unseaworthiness,  and   the  other  knowledge  of          likelihood  of such  unseaworthiness  endangering life.    Unless          courts  remain acutely aware  that the prosecutor  bears separate          burdens on these two issues, there is a  lively danger that, once          a jury has found not  only that an unseaworthy condition existed,          but  also that  a  defendant  knew of  that  condition, it  could          quickly be  impressed by  the possibility of  any number  of life          threatening events.   A slippery deck, a malfunctioning winch, or          poor stowage all  can lend themselves to fatal  scenarios.  There          is  very little  that can go  wrong at  sea without some  risk to          human life.               But the test is not "possibility" or "some risk."  It  is of          a significantly  higher order,  "likely to  endanger life."   Not          only  do  logic   and  the  need  to  avoid   watering  down  the          prerequisite  to criminal liability  support this  statement, but          also the  common understanding of  the word "likely."   At times,          dictionary  definitions  give  mixed signals,  or  are  opaque or          otherwise less than compelling indicia of legal meaning.  But the          definitions  of the  adverb "likely"  are  consistent, clear  and          strong: in one dictionary  the meaning is simply  "probably," see                                                                        ___          The Random House Dictionary of  the English Language 1114 (2d ed.          ____________________________________________________          unabridged   1987);  in  another,   the  meanings  are   "in  all                                         -22-          probability" and "probably,"  see Webster's Collegiate Dictionary                                        ___ _______________________________          674 (10th ed. 1993).               In  the context of this statute imposing criminal liability,          we  think that  there must  be sufficient  evidence of  a (known)          defect that poses a very substantial threat to life.  This is not          a  mathematical formula.   It is not  a "more probable  than not"          test.  The prosecution  should not have to prove that the chances          of surviving such  a defect are less than fifty percent.  But the          threat  should  be   one  that,  objectively  viewed,   poses  an          unacceptable  risk  to  an  individual.   It  seems  to  us  that          instances  of loss  of  life beyond  the  rare or  bizarre, or  a          condition so inherently  life threatening that it needs no record          of experience, must be shown.               In   this  case,  the  evidence  falls  significantly  below          anything approaching these showings.   The government's  evidence          of  the  danger   posed  by  a  broken  tow   wire  was  entirely          speculative.  The  most dramatic testimony --  Captain Hargrave's          assertion that an  individual on deck could  be cut in half  by a          wire  snapping back like  a rubber  band after  it breaks  -- was          unsupported by  any  evidence  that  such an  accident  ever  had          occurred.   Captain Robert  Ross of the  Coast Guard  described a          series of dangers  attributable to a barge breaking  loose from a          tugboat, but  his testimony failed  to establish that  these were          other than  a worst case  scenario.   There was no  evidence that          such dire consequences  could be expected more  than infrequently          when a wire parted.                                          -23-               In fact, witness after witness testified to experiences with          cable partings,  but none reported  any resulting human  injury.           Captain  McMichael's testimony  that the  wire hit  him  after he          repaired  it, "knock[ing]  the  wind  out of  me  a little  bit,"          obviously falls  short of  meeting a  "likely  to endanger  life"          standard.  Similarly,  Captain Ross's description of  the dangers          associated with the  effort to contain this particular  oil spill          do  not demonstrate that  a deteriorated tow wire  is a danger to          human life.  Indeed, the  evidence indicated that the damage that          did  occur  was  the  result  of  aberrant  circumstances.    The          testimony was that a proper  repair the first time probably would          have prevented the  second parting, and  that the barge  remained          adrift and eventually went aground after the second break because          crew   members  were  not  following  prescribed  procedures  for          operating  the  tugboat.     Rivera  can  not  be   charged  with          anticipating such events.               The  government's evidence,  in sum,  showed  only that  the          parting of a  tow wire could pose  a serious risk to  human life.                                 _____          This is inadequate to prove that Rivera violated section 10908 by          sending a  vessel to sea  knowing that its  unseaworthy condition          was likely to endanger life.              ______                                    IV. Conclusion                                        __________               Having  concluded that the  plain language of  section 10908          permitted  this prosecution of  appellant Rivera without  a prior          finding  of unseaworthiness, but  that the evidence  presented at                                         -24-          trial failed to prove an  essential element of the charged crime,          we reverse the conviction.                                              Concurrence follows.                                         -25-               TORRUELLA,  Chief  Judge  (Concurring).    Even  though  the               TORRUELLA,  Chief  Judge  (Concurring).                           ____________          majority's limited interpretation  of 46 U.S.C.A.    10908 (Supp.          1997  - Title  46  Partial  Revision) goes  far  in reducing  the          potential for disrupting the maritime industry that was portended          by the government's  and district court's interpretation  of that          statute, I cannot join the majority without reservation.  I write          separately  because, with respect, I believe my colleagues are in          error in declaring  that prosecutions under section  10908 may be          instituted without a prior finding of unseaworthiness pursuant to          the procedures set forth in Chapter 109, 46 U.S.C.A.    10901-08.          This  interpretation  improperly excises  section 10908  from the          statutory scheme of which  it is a part and runs  contrary to the          legislative intent that guided the recodification of these safety          regulations.    Most   importantly,  the  majority's   views  are          counterproductive to the remedial ends pursued by Chapter 109.               Section  10908 is the  ultimate sanction for  a violation of          the procedures set  forth in Chapter 109.   When a vessel appears          to be unfit to be sent to sea, its chief and second mates, or the          majority  of its  crew, may  file a  complaint with  the vessel's          master before the vessel leaves the harbor.    10902.  The master          then  applies to a district  court for appointment of independent          surveyors, id.,  whereupon  they file  a report  with the  court.                     ___            10903(a).   The court then rules  whether the vessel  is fit to          proceed on  the voyage.     10903(h).  If deficiencies  are found          and corrected,  the crew  must proceed on  the voyage  or forfeit          their unpaid wages.     10904.  If deficiencies are found but not                                         -26-          corrected, and  the ship  is  in a  foreign  port, a  seaman  may          request to  be discharged and is  entitled to one month's  pay in          addition to wages  owed.    10906.   Furthermore, if deficiencies          of such gravity "that [they are]  likely to endanger the life  of          an individual"  are found  and not corrected,  and the  vessel is          nevertheless sent to  sea, criminal sanctions may be  imposed.             10908.               The  majority, however,  contends that  section  10908 is  a          criminal sanction of general applicability that is unconnected to          the Chapter  109 procedures.   My colleagues begin and  end their          analysis of  section 10908 by  relying on the maxim  of statutory          interpretation that  when the  "plain meaning"  of a statute  "is          clear on its face, the sole function of the courts is  to enforce          it  according to its terms."  Ante at  4.  They argue that we are                                        ____          bound  by  this  "plain meaning"  or  "plain  language" canon  to          interpret  section  10908  without  reference  to  Chapter  109's          procedures.               As the majority acknowledges, ante at 7, precedent from both                                             ____          the United States Supreme Court and this Circuit establishes that          the "plain language" rule requires the examination of a statute's                                    ________          textual  context.   See Conroy  v.  Aniskoff, 507  U.S. 511,  515                              ___ ______      ________          (1993) (the "cardinal rule [is] that a statute is to be read as a          whole . . . , since  the meaning of statutory language, plain  or          not,  depends  on  context"); Skidgel  v.  Maine  Dept. of  Human                                        _______      ______________________          Services, 994  F.2d  930  (1st  Cir.  1993).    Nevertheless,  my          ________          brethren  "find  no   aid  to  construction  in   the  provisions                                         -27-          surrounding section  10908" because  in this  case "the  relevant          'context'  is subject to different interpretations."   Ante at 7.                                                                 ____          Thus, "[t]aking section 10908 at face value, without limitations,          avoids any uncertainty."  Ante at 8.                                     ____               I disagree with  my colleagues' appraisal of  the usefulness          of context in this case.  Although the language of section  10908          is plain, its meaning  can only be determined by reference to the          text  of the  surrounding provisions.    The majority  implicitly          concedes the  point when  it notes that  "Section 10908  does not          apply to fishing  vessels or yachts."  Ante at 16.  It arrives at                                                 ____          this conclusion,  not from any  language found in  section 10908,          but  rather from  the text of  the first section  of Chapter 109,          which  reads: "This  chapter applies  to a  vessel of  the United                               _______          States except a fishing or whaling vessel or yacht."  46 U.S.C.A.             10901  (Emphasis  supplied.)    It  is  not  an  insignificant          coincidence that  sections 10901  and 10908  were both  extracted          from former  section 658.   Thus, the  need to  refer to  section          10901 to interpret the "plain language" of section 10908 suggests          that Chapter 109 is to be read and applied cohesively.               The  placement of  section  10908 within  Chapter 109  is in          itself  a telling  sign. Chapter  109,  entitled "Proceedings  on          Unseaworthiness,"  is  located  within Part  G,  "Merchant Seamen          Protection  and  Relief,"  of  Subtitle  II of  Title  46.    The          provisions  of  Part  G  form  an   interlocking  whole  and  are          exclusively  concerned with  regulating the  relationship between          seamen and the  masters and owners of  the vessels in  which they                                         -28-          set out  to sea.   Thus, the placement of  a generally-applicable          criminal statute anywhere within Part G, let alone within Chapter          109, would have made little sense.15               Similarly,  Part G codifies many of the requirements covered          by the traditional warranty of seaworthiness.16  Indeed, a vessel                                        ____________________               15  In contrast, the other two statutes under which the          government could have proceeded in this case are located in much          more appropriate contexts.  Thus, 46 U.S.C.A.   2302(b), which          makes it a misdemeanor to operate a vessel in a grossly negligent          manner, appears in Title 46, Subpart II, Part A  - General          Provisions, Chapter 23 - Operation of Vessels Generally.           Similarly, 18 U.S.C.A.   1115 (Supp. 1997), which  makes it a          felony when the negligence of a ship's officer results in the          loss of human life, appears in the United States Criminal Code.              Sections 2302(b) and 1115 are also much broader in scope than          section 10908.  The former are both applicable to all vessels in          U.S. waters, whether inland or coastal, and whether sailing under          U.S. or foreign flags.  Section 10908, on the other hand,          excludes foreign vessels, fishing vessels, and yachts, as well as          other vessels operating in harbors and inland waters, which makes          sense only for a statute concerned exclusively with seamen.              The majority admits to being puzzled by the limited scope of          section 10908, and recommends that Congress consider making          "safety standards more consistent across categories of vessels          and in all locations."  Ante at 16.  The apparent inconsistency                                  ____          disappears under my reading of the statute.  Thus, the exclusion          of foreign vessels follows from the fact that Part G's provisions          apply only to vessels sailing under the United States flag.  It          is also understandable that fishing vessels, harbor vessels,          private yachts, and vessels on inland waterways are excluded from          section 10908.  Such vessels are excluded from most of the          provisions of Part G because they usually set out to sea only for          short voyages, rendering unnecessary the detailed statutory          scheme established by Part G for seamen going out to sea on          intercoastal or ocean voyages.               16  The warranty of seaworthiness provides that the owner of          a vessel owes an absolute duty to seamen to provide a ship's          hull, gear, appliances, ways, and appurtenances which are          reasonably fit for their intended purpose,  Mitchell v. Trawler                                                      ________    _______          Racer, Inc., 362 U.S. 539 (1960), as well as to appoint a          ___________          competent master and a crew adequate in their number and          competent for their duty, Usner v. Luckenbach Overseas Corp., 400                                    _____    _________________________          U.S. 494 (1971).                                         -29-          is unseaworthy in precisely the  same circumstances in which, for          purposes of section 10902, it is unfit to proceed on its intended          voyage.     Consequently,  the  reference  in  section  10908  to          unseaworthiness can only be interpreted in the light of the other          provisions of Chapter 109 and Part G.               Reading Chapter 109  as a whole reveals why,  as admitted by          the  government,  there  has never  been  a  criminal prosecution          pursuant to  either section  10908, or  its predecessor  statute,          section 658.   See  Appendix.   The  goal  of Chapter  109  is to                         ___          correct  unseaworthy conditions before they pose a serious danger                                          ______          at sea.   Section 10908  serves as a deterrent,  providing seamen          with the leverage  to force their vessel's master  to comply with          Chapter  109.   Sections  658  and  10908  have never  been  used          because, once the  court-appointed marine surveyors have  found a          vessel to be unseaworthy, only the most reckless of masters would          insist on setting out to  sea without first repairing the vessel.          Moreover, the master may  not even be able  to set out to  sea in          the  face of  such a  finding because  the seamen  may  choose to          remain on land and receive one month's wages as severance pay.             10906.   Unfortunately, my brethren's  insular interpretation  of          section 10908 replaces the corrective focus of Chapter 109 with a          punitive one, since civil sanctions cannot be  imposed unless the          civil complaint procedures are followed, while criminal sanctions          are always available.               An examination of  section 10908's  predecessor statute,  46          U.S.C.A.    658 (1958),  establishes even  more clearly  that the                                         -30-          civil procedures of Chapter 109  must be initiated before section          10908 may be  invoked.  In 1983, Congress recodified  much of the          law as to seamen, and in doing so split section 658 into sections          10901, 10906, and 10908.  Pub. L. No. 98-89 (1983).   Section 658          established  the penalties that  would attach  if court-appointed          inspectors were to  find a  vessel unseaworthy  in some  respect.          The inclusion  of both  civil and criminal  penalties within  the          same section  was a clear  indicator that the  criminal penalties          were  the ultimate sanction for violations discovered pursuant to          the civil complaint procedures.               Section  10908  should  be  understood  in  the  context  of          section 658  because no substantive change was intended to result          from the recodification, as is evident from the history of Public          Law 98-89.   See H.R. Rep.  No. 98-338 (1983), reprinted  in 1983                       ___                               _________  __          U.S.C.C.A.N. 924.  House Report No. 98-338 states that:               The ultimate aim of this legislation is three fold:  to               make maritime  safety and seaman  protection law easier               for  the Coast  Guard to  administer, to  make it  less               cumbersome  for the maritime  community to use,  and to               make it more understandable for everyone involved.          Id. at 113, 1983 U.S.C.C.A.N.  at 925.  During the hearings  held          ___          by   the  House,  an  interesting  exchange  took  place  between          Congressman  Studds of  Massachusetts, and  Admiral  Lusk of  the          Coast Guard, the agency entrusted with enforcing the statute:               Mr.  Studds:   Some have  expressed  concern that  this               ___________               recodification  may   prompt  a  series   of  long  and               expensive  court cases  initiated  for  the purpose  of               testing  the  judicial  interpretation  of  terms   and               concepts contained in the revised  law.  Do you see any               risk  that  this sort  of  scenario might  unfold  as a               result of the enactment of this bill?                                         -31-               Admiral Lusk:  I don't think so sir.  I understood that               ____________               it was to  be made so clear everywhere  that we weren't               trying   to  make   any   substantive   changes  of   a               controversial nature.          Hearings   of  H.R.  2247,   Subcommittee  on  Coast   Guard  and          Navigation,  House Committee on Merchant Marine and Fisheries, 98          Cong.,  1st Sess. at 455 (Add.  p. 1).  This  is confirmed by the          Report that accompanied this recodification, which stated:               Although the Committee  realized that many  substantive               changes  would  inevitably  be made  in  any  effort to               simplify and  modernize  the maritime  safety laws,  it               intended to  make no  changes  that would  prove to  be               detrimental to  or adversely impact  upon the  industry               governed by these laws.  More specifically it sought to               insure  that this  bill  not  take  away  any  existing               rights,  benefits  or privileges  from any  person, nor               place any greater duties or obligations on any person.          H.R. Rep. No. 338,  98th Cong., 1st Sess. at 118-119 (1983) (Add.          pp.  11-12).    Thus,  Congress  simply  took  the  then-existing          legislation  and rearranged it  in a more  comprehensible manner.          Id.  The "plain  meaning"  rule does  not  govern  recodification          ___          statutes such  as Pub. L.  No. 98-89.   As  the Report  correctly          points out,  in  the usual  kind  of amendatory  legislation,  "a          change  of  language is  intended  to  change  substance.   In  a          codification  statute, however,  the courts  uphold the  contrary          presumption:   no  change  in  law  is  intended  unless  clearly          expressed."  Id. at  118-119 (Add. at 11-12).  The  Supreme Court                       ___          has held in numerous cases that:                [T]he change  of arrangement, which  placed portions of               what  was originally  a single  section into  separated               sections cannot be  regarded as altering the  scope and               purpose of the enactment.   For it will not be inferred               that Congress  in revising  and consolidating the  laws               intended to change their effect, unless  such intention               is clearly expressed.                                         -32-          Fourco Glass Co. v. Transmirra  Products Corp., 353 U.S. 222, 227          ________________    __________________________          (1957) (citing United States v. Ryder, 110 U.S. 729, 740 (1884));                         _____________    _____          see Finley v.  United States, 490 U.S. 545,  553-55 (1989); Mu iz          ___ ______     _____________                                _____          v. Hoffman,  422 U.S.  454, 467-74 (1975);  Tidewater Oil  Co. v.             _______                                  __________________          United States,  409 U.S.  151, 162  (1973);  Anderson v.  Pacific          _____________                                ________     _______          Coast S.  Co., 225  U.S. 187, 198-199  (1912).   Since the  House          _____________          Report  does not  even discuss  the purported  change in  the law          urged by the  government, let alone clearly express  an intent to          enact such a change, one  may safely conclude that no substantive          change in this section was ever intended.               Furthermore,  we should be guided by  our own precedent that          counsels examination of statutes as  a whole, and that due weight          be  given  "to  design,  structure  and purpose  as  well  as  to          aggregate language."  O'Connell v. Shalala, 79 F.3d 170, 176 (1st                                _________    _______          Cir. 1996) (citation omitted); United States  v. Falvey, 676 F.2d                                         _____________     ______          871   (1st  Cir.  1982).    Falvey  involved  a  prosecution  for                                      ______          possession  of counterfeit foreign coins under a statutory scheme          first  enacted in  1877 but  extensively rephrased  in 1965.   18          U.S.C.   185.  Until 1965, the statute's  scope had been limited,          to foreign  coins in actual  use and circulation as  money within          the United States.  However, because  the 1965 version of the law          simply  made  it  a  felony  to  counterfeit  silver  coins,  the          government sought  to apply  the statute  to counterfeit  foreign          currency that was not either in  actual use or circulation in the          United States.                                         -33-               This court rejected the  government's contention, which  was          principally  based on  minor  references to  section  185 in  the          legislative history.   Speaking  for this  court, Judge  Campbell          said:               From  this slender reed,  the government constructs its               argument  that in 1965,  Congress intended, in  a minor               provision of an act with an entirely different purpose,               to  make a  major change  in a  statute dating  back to               1806.  We cannot accept such an argument.               . .  . [I]n the  complete absence of any  evidence that               the wording  was  aimed at  bringing about  substantive               changes other than  the one expressly reflected  in the               legislative history, the most plausible explanation  of               the  revised phraseology is that it was simply intended               to eliminate  the awkwardness  of  expression that  was               introduced  in  1877  and  carried   through  the  1948               version.  The  draftsman, we surmise, merely  sought to               "clean up the language" - falling into the trap, as can               easily occur where statutory  language is rephrased, of               unintentionally  suggesting a  substantive change.   In               light of the history of this statute and the absence of               any indication  of an intention  in 1965 to  change its               scope,  it would  be  anomalous  to  read  the  amended               statute  as broader in coverage than its predecessors .               . . Cases construing changes in statutory language tend               to  rely in part on evidence of congressional intent or               at least attention to the change in deciding whether to               give the change its literal effect . . . In the absence               of  these  factors,  courts  are not  bound  to  read a               statute literally in a manner entirely at odds with its               history and apparent intent.          676 F.2d at 875.               My colleagues view  the legislative history in this  case as          sending "mixed  signals," ante at  9, with some of  it suggesting                                    ____          that the  purpose of the  legislation was simply to  recodify the          then-existing  law, with  no changes  intended,  and other  parts          indicating that "[t]he bill . . . [did] in fact make a great many          substantive  changes to the present  law . .  . [which] should be          understood . . . [as] intended by the [Congress]."  See H.R. Rep.                                                              ___                                         -34-          No. 98-338  at 113, 1983 U.S.C.C.A.N. at 925.  They further quote          from that  Report to the effect  that neither logic nor  case law          "mandate . . . reliance on legislative history to reach  a result          contrary to the plain meaning of the statute."  Id. at 120, 932.                                                          ___               These references miss the  point.  They are only  applicable          to  substantive changes  in Chapter  109.   Can  it be  seriously              ___________          argued that  merely moving  text from section  658 to  a separate          section,  section  10908,  with  virtually  identical   language,          constitutes  a  substantive change  in  that statute?    With due                          ___________          respect, I  think not.17   See Finley,  supra; Fourco  Glass Co.,                                     ___ ______   _____  _________________          supra; Mu iz, supra; Falvey, supra.  In fact, those provisions of          _____  _____  _____  ______  _____          Chapter  109 that are substantive  changes from the prior statute          are  readily  apparent from  a  comparison  of  both laws.    See                                                                        ___          Appendix.   One of  these is  the  section immediately  preceding          section 10908,   10907, which prohibits a  master from impeding a          seaman  from making "a complaint authorized by this chapter," and          provides a  civil penalty for  such conduct.  Section  10907 does          not appear in the old text.                Thousands of  vessels take to  sea every day  throughout the          United States, and surely  many of them do so  in an "unseaworthy          state that is likely to endanger the life of an individual."  The          fact that  there has been  no prior invocation of  either section                                        ____________________               17  The case relied upon by the majority, United States v.                                                         _____________          Frezzo Bros., Inc., 602 F.2d 1123 (3d Cir. 1979), is inapposite.           __________________          The Third Circuit was there faced with the task of interpreting          the Clean Water Act.  That statute, 33 U.S.C.   1251, et seq.,                                                                _______          which is of relatively recent vintage (1972), contains neither          procedures similar to those in Chapter 109, nor is it the result          of a recodification scheme.                                         -35-          658 or  section 10908 thus casts  further doubt on  the view that          Congress by this recodification intended to enact a  major change          in the  maritime law,  without making  any specific statement  to          that effect.  Although I would be the last to condone  sending an          unseaworthy vessel  to sea,  and sincerely  hope that  deliberate          environmental  damage does not  go unpunished, the  imposition of          criminal  sanctions under the present circumstances constitutes a          radical departure from  what has been the custom  and practice in          the maritime world to the present time.                Notwithstanding   that  the   majority's   holding  on   the          sufficiency of  the evidence ameliorates  the impact of  this new          interpretation of the statute, it nonetheless poses a substantial          threat  of converting untold numbers of unsuspecting persons into          prospective felons.   Although Congress  could very well  enact a          statute  with the  reach envisioned  by the  majority, I  am hard          pressed to  accept  such  a  significant  break  with  the  past,          particularly  where criminal  sanctions are  at  stake, absent  a          clear indication that such construction is the intended result of          what appears to be a  mere reshuffling of a longstanding maritime          safety statute.  See Falvey, supra.                             ___ ______  _____               Finally,  the fact that the interpretations of section 10908          proposed by Rivera and the government are "both .  . . consistent          with what  [the majority]  see[s] as the  overall purpose  of the          legislation,"  ante at  7, should  at the  very least  suffice to                         ____          trigger the operation of the rule of lenity, which "commands that          genuine  ambiguities  affecting  a  criminal  statute's scope  be                                         -36-          resolved  in the  defendant's  favor," ante  at  11 n.8  (quoting                                                 ____          United States  v. Bowen, Nos. 96-2289,  90, slip. op. at  15 (1st          _____________     _____          Cir. Sept. 5,  1997)).  The  majority refuses to  apply the  rule          because "[t]he plain language of section 10908 is not ambiguous."                         ______________          Ante at 11 n.8  (emphasis added).  However, in applying  the rule          ____          of lenity the inquiry is not whether the language of the  statute          is plain, but rather  whether its meaning is  clear.  See  United                                            _______             ___  ______          States  v. O'Neill, 11  F.3d 292, 301  n.10 (1st  Cir. 1993) (the          ______     _______          rule  is applicable when "at  the end of  a thorough inquiry, the          meaning of a criminal statute remains obscure") (emphasis added).          _______          The meaning and scope of section 10908 can hardly be described as          unambiguous when, as the majority admits and this concurrence has          shown,  it  remains  subject  to  two  reasonable  but  competing          interpretations.    Thus,  if  Congress  accepts  the  majority's          invitation to look into this matter,  ante at 16, I also  suggest                                                ____          that  it  define  unambiguously the  nature  of  the relationship          between Chapter 109's civil and criminal provisions.                                         -37-                        Appendix:  A Comparison of Provisions                        Appendix                Predecessor Statute:            Current Chapter 109:                Predecessor Statute:            Current Chapter 109:                46 U.S.C.    653-658              "Proceedings on                46 U.S.C.    653-658              "Proceedings on                                                 Unseaworthiness,"                                                 Unseaworthiness,"                                              46 U.S.C.    10901-10908                                              46 U.S.C.    10901-10908             653:   Complaint       that     10901:  Application.                    ____________________             ___________                    V e s s e l      i s                    ____________________                    Unseaworthy.              "This chapter applies to a                    ___________                                              vessel   of   the   United              "If the  first and  second      States except a fishing or              officers under  the master      whaling vessel or yacht."               or a majority of  the crew              of any vessel bound on any     10902:  Complaints       of                                                     ___________________              voyage  shall, before  the             unfitness.                                                     _________              vessel shall have left the              harbor, discover that  the      "(a)(1) If  the chief  and                                               (a)(1)              vessel is too leaky  or is      second mates or a majority              otherwise unfit .  . .  to      of  the  crew of  a vessel              proceed  on  the  intended      ready   to   begin  voyage              voyage, and  shall require      discover,    before    the              such   unfitness   to   be      vessel leaves harbor, that              inquired into, the  master      the vessel is unfit  . . .              shall, upon the request of      to proceed on the intended              the   first   and   second      voyage  and   require  the              officers under the  master      unfitness  to  be inquired              or  such  majority  of the      into,      the      master              crew,  forthwith apply  to      immediately shall apply to              the judge of  the district      the district court  of the              court  of   that  judicial      United States at the place              district  .  .  .  for the      at  which  the  vessel  is              appointment  of surveyors,      located  .  .  .  for  the              as provided in section 654      appointment  of surveyors.              of this title, taking with      At  least   2  complaining              him  two  or  more  of the      seamen shall accompany the              crew who  shall have  made      master  to  the  judge  or              such request . . . . [A]ny      justice of the peace.              master refusing to  comply      (2)  A  master  failing to                                              (2)              with    these   provisions      comply      with      this              shall  be   liable  to   a      subsection  is  liable  to              penalty  of  $500.    This      the      United     States              section shall not apply to      Government  for   a  civil              fishing or whaling vessels      penalty of $500."              or yachts."                                         -38-             654:  Proceedings        on     10903:  Proceedings on                   _____________________             ______________                   examination        of             examination of                   _____________________             ______________                   vessel.                           vessel.                   ______                            ______              "The judge, or justice, in      "(a)On  application  under                                              "(a)              a  domestic  port,  shall,      section  10902(a)  of this              upon   such   application,      title,   the    judge   or              issue     his     precept,      justice of the peace shall              directed to three  persons      appoint 3 experienced  and              in  the neighborhood,  the      skilled  marine  surveyors              most    experienced    and      to  examine the vessel for              skillful    in    maritime      the       defects       or              affairs   that    can   be      insufficiencies complained              procured . .  . . It shall      of .  . . .  The surveyors              be   the   duty   of  such      shall  make  a  report  in              surveyors  to   repair  on      writing  .  .   .  stating              board such  vessel and  to      whether the vessel  is fit              examine   the   same    in      to proceed to sea, and, if              respect to the defects and      not, in what respect it is              insufficiencies complained      unfit,  making appropriate              of,  and  make  reports to      recommendations . . . .              the judge . . . in writing      (b)   On   receiving   the                                              (b)              . . . whether in any or in      report,   the   judge   or              what respect the vessel is      justice  shall  endorse on              unfit  to  proceed  on the      the report the judgment of              intended  voyage .  .  . .      the  judge  or  justice on              [U]pon  such  report   the      whether the vessel  is fit              judge  or   justice  shall      to proceed on the voyage .              adjudge and  shall indorse      . . .              on his report his judgment      (c) The  master shall  pay                                              (c)               whether the vessel  is fit      all costs of  the survey .              to proceed on the intended      . . .              voyage,   and,   if   not,      (d)  A master  of a vessel                                              (d)              whether  such repairs  can      violating this  section is              be  made  or  deficiencies      liable   to   the   United              supplied  .  .   .  .  The      States  Government  for  a              master or commander shall,      civil penalty of  $100 . .              in the first instance, pay      . ."              all costs of such a review              . . . ."                                         -39-             655:   Refusal  to  proceed     10904:  Refusal          to                    ____________________             ___________________                    when   vessel  found             proceed.                    ____________________             _______                    seaworthy.                    _________                                              "After  a  judgment  under              "If,  after judgment  that      section   10903  of   this              such  vessel  is   fit  to      title that a vessel is fit              proceed  . .  .  [or after      to proceed . . . or  after              performing   the  directed      the order of a judgment to              alterations]  the  seamen,      make  up  deficiencies  is              or either  of them,  shall      complied with, if a seaman              refuse to  proceed on  the      does  not  proceed  on the              voyage,  he  shall forfeit      voyage,  the  unpaid wages              any wages that  may be due      of    the    seaman    are              him."                           forfeited."                                         -40-             656:   Appointment       of     10905:  Complaints in                    ____________________             _____________                    inspectors by consul             foreign ports.                    ____________________             _____________                    in foreign port.                    _______________                                              "(a)   When  a   complaint                                               (a)              "Upon   a   complaint   in      under section  10902(a) of              writing,  signed  by   the      this  title is  made in  a              first and  second officers      foreign      port,     the              or a majority  of the crew      procedures of this chapter              of any vessel,  while in a      shall be followed,  with a              foreign  port,  that  such      consular           officer              vessel is in an unsuitable      performing  the duties  of              condition to go to sea . .      the  judge  or  justice of              . the  consul shall  cause      the peace.              to   be  appointed   three      (b)  On   review  of   the                                              (b)              persons       of      like      marine  surveyors' report,              qualifications  with those      the  consular officer  may              described  in section  654      approve  and must  certify              of this  title, who  shall      any  part  of  the  report              proceed  to  examine  into      with  which   the  officer              the cause of the complaint      agrees.   If the  consular              and who  shall proceed  to      officer dissents from  any              be governed  in all  their      part  of  the  report, the              proceedings as provided by      officer    shall   certify              said section."                  reasons   for   dissenting                                              from that part."             657:   R e p o r t      o f                    ____________________                    inspectors.                    __________              "The  inspectors appointed              by    any    consul,    in              pursuance  of section  656              of this title,  shall have              full power to  examine the              vessel . . . .[I]f, upon a              view    of    the    whole              proceedings, the consul is              satisfied   therewith,  he              may approve  the whole  or              any  part  of  the report,              and  shall   certify  such              approval;    or   if    he              dissents, he shall certify              his       reasons      for              dissenting."                                          -41-             658:   Discharge of crew on     10906:  Discharge  of  crew                    ____________________             ___________________                    a c c o u n t    o f             for unsuitability.                    ____________________             _________________                    unseaworthiness;                    ________________                    penalty  for sending      "When a survey  is made at                    ____________________                    unseaworthy   vessel      a   foreign    port,   the                    ____________________                    to sea.                   surveyors  shall  state in                    ______                                              the  report   whether,  in              "The   inspectors   [shall      their opinion,  the vessel              state whether] the  vessel      had  been   sent  to   sea              was sent to sea unsuitably      unsuitably provided in any              provided in  any important      important  particular,  by              or  essential  particular,      neglect   or   design   or              by neglect  or design,  or      through     mistake     or              through     mistake     or      accident.   If by  neglect              accident; and  in case  it      or    design,    and   the              was by mistake  or design,      consular official approves              and  the consular  officer      the  finding, the  officer              approves of such  finding,      shall  discharge  a seaman              he shall discharge such of      requesting  discharge  and              the  crew  as  request it,      shall  require the  master              and   shall   require  the      to pay  one month's  wages              payment by  the master  of      to that seaman in addition              one month's wages  of each      to  wages  then   due,  or              seaman over and  above the      sufficient  money  for the              wages then due . . . . But      return  of  the  seaman to              if in  the opinion  of the      the   nearest   and   most              inspectors the defects  or      convenient  port  of   the              deficiencies    found   to      United  States,  whichever              exist have been the result      is the greater amount."              of  mistake  or  accident,              and  could  not,   in  the     10907:  Permission to  make                                                     ___________________              exercise of ordinary care,             complaint.                                                     _________              have   been   known    and              provided   against  before      "(a)  A  master   may  not                                               (a)              the sailing of the vessel,      refuse to permit, deny the              and the master  shall in a      opportunity to, or  hinder              reasonable time  to remove      a  seaman  who  wishes  to              or  remedy  the  causes of      make      a      complaint              complaint,  then  the crew      authorized     by     this              shall remain and discharge      chapter.              their duty.  If any person      (b)  A   master  violating                                              (b)                           _____________              knowingly     sends     or      this section is  liable to              __________________________              attempts  to  send  or  is      the   United  States   for              __________________________              party  to  the  sending or      civil penalty of $500."              __________________________              attempting   to   send  an              __________________________              American ship  to sea,  in     10908:  Penalty         for              __________________________             ___________________              the  foreign or  coastwide             s e n d i n g              __________________________             _____________              trade,    in    such    an             unseaworthy  vessel              __________________________             ___________________              unseaworthy state that the             to sea.              __________________________             ______              life  of  any   person  is              __________________________              likely to be thereby            "A person that knowingly              ____________________                                         -42-
