

                  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 &amp; 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-
