United States criminal enforcement of deliberate vessel pollution: A document-based approach to MARPOL

Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf

Volumn , Issue , 2010, Pages 269-290

  Udell, Richard A ^a  

^a United States Department of Justice   (United States)

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EID: 80355138485     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.1163/ej.9789004180406.i-610     Document Type: Chapter

References (40)

1. See MARPOL, Annex I, Reg. 15. A similar regime applies to cargo-tank waste from tankers. In the United States, MARPOL is implemented by a statute known as the Act to Prevent Pollution from Ships ('APPS') which makes it a crime to knowingly violate MARPOL or the US implementing regulations; Title 33, United States Code, section 1908(a) (hereinafter referred to as: 33 USC § 1908(a), and accordingly).
2. Paris MOU, 'Concentrated Inspection Campaign on MARPOL Annex I', Press Release, 14 February 2007, available at .
3. See OECD Maritime Transport Committee, Cost Savings Stemming from Non-Compliance with International Environmental Regulations in the Maritime Sector, DSTI/DOT/MTC(2002)8/ Final (Paris: OECD, 2003), at p. 4.
4. .
5. F. Wiese, Seabirds and Atlantic Canada's Ship-Source Oil Pollution (Toronto: WWF Canada, 2002), p. 13: 'On average, a minimum of 300,000 seabirds are killed every year in the waters of Atlantic Canada as a result of illegal activities of ship operators, a yearly seabird mortality equal to that caused by the Exxon Valdez disaster in Alaska in 1989'; available at .
6. In order to comply with the regime established by MARPOL, a vessel must have an operable and approved oily-water separator and incinerator. As its name implies, the separator is designed to separate out liquids containing concentrations of oil greater than 15 ppm.
7. MARPOL, Annex I, Reg. 17; MARPOL Protocol I, Arts. I-V.
8. MARPOL, Annex I, Regs. 17(2), 17(4), Appendix III(G).
9. See US Coast Guard, G-PVC Policy Letter 06-01, 'Coast Guard Guidance for Enforcement of MARPOL Annex I During Port State Control Examinations', stating: 'Intentional discharges of oil contaminated bilge water and sludge in direct contravention of MARPOL requirements remain a continuing and significant threat to the marine environment ... Recent ... investigations have demonstrated that related ship owners and vessel crews conceal accidental or deliberate discharges of oily waste and sludge, usually caused by malfunctioning equipment, poorly managed maintenance programmes or as an effort to reduce operational costs'.
10. .
11. R. Udell, 'Vessel Pollution &Solutions', presentation to Intertanko, Singapore, 30 March 2006; available at: .
12. See US Department of Justice, Office of the Deputy Attorney General, Memorandum on 'Principles of Federal Prosecution of Business Organizations', 2007; available at: .
13. MARPOL, Art. 4. See Shipping Industry Guidance on the Use of Oily Water Separators: Ensuring Compliance with MARPOL (London: Maritime International Secretariat, 2006); available at .
14. See IMO Resolution MEPC 61(34).
15. See US Coast Guard, 'Coast Guard Guidance for Enforcement of MARPOL Annex I', footnote 9 above.
16. 33 USC § 1908(a).
17. United States v. Overseas Shipholding Group, Inc., 06-CR-10408-RGL (D.MA), 'Government's Amended Motion for Whistleblower Awards', at pp. 2-3.
18. No. CR06-5661RBL.
19. See, e.g., United States v. Holy House Shipping AB, et al., 1:08-CR-00824 (D.N.J. 2009) (court awarded two whistleblower crewmembers USD 375,000 to be divided between them based upon their level of cooperation); United States v. Polar Tankers, 3:07-CR-00124 (D. Alaska 2007) (court awarded USD 250,000 to a crew member who had notified Coast Guard officials of a spill and later provided a video tape of crew members cleaning the oil from the side of the ship); United States v. Wallenius Ship Management Pte., 2:06-CR-00213 (D.N.J. 2006) (court awarded one-half of USD 5 million fine to be divided among four crew members who sent a fax to an international seafarers' union alleging that they were being ordered to engage in deliberate acts of pollution); United States v. Sun Ace Shipping Company et al., 2:06-CR-00599 (D.N.J. 2006) (court awarded half of a USD 200,000 fine to be divided among three whistleblowers, two oilers and a wiper, who lodged complaints with a religious organization that they were being forced to bypass pollution control equipment); United States v. Norwegian Cruise Lines, 02-20631-CR-LENARD (S.D. Fla. 2002) (court awarded a former employee whistleblower USD 250,000, which was one quarter of the USD 1 million criminal fine, for informing the EPA about unlawful discharges and false statements in the oil record book of the S.S. Norway cruise ship); United States v. D/S Progress, 00-Cr-00318 (D. Md. 2002) (court awarded two employee whistleblowers with half of the USD 250,000 fine for slipping a handwritten note to a US Coast Guard inspector that disclosed a crack in the hull of an oil tanker and which resulted in the discovery of other violations.
20. See MARPOL, Annex I, Reg. 17; 33 USC. §§ 1902, 1908; 33 CFR §§ 151.09, 151.23, 151.25.
21. Codified at 18 USC § 1001.
22. Many United States vessel pollution prosecutions have included charges relating to additional types of obstructive conduct, such as making false statements during interviews, ordering employees to lie to investigators, ordering employees to lie in court, destruction of evidence such as destroying or hiding ship records or instruments used in making illegal discharges. In several instances, shore-based managers have directed crew members to lie to investigators.
23. 33 CFR § 151.
24. 18 USC § 3571.
25. See, e.g., International Convention for the Safety of Life at Sea (SOLAS), 1 November 1974,
26. UST 47, as amended, and the Protocol of 1978 relating to the International Convention for the Safety of Life at Sea, 17 February 1978, 32 UST 5577, as amended through 1 July 1997, IMO, Doc. Sales No. IMO-110E (1997); International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention), 7 July 1978, IMO, Doc. Sales No. IMO-945E (1996) (entered into force 28 April 1984), as amended by the Seafarers' Training, Certification and Watchkeeping (STCW) Code, 7 July 1995, IMO, Doc. Sales No. IMO-945E (1996); MARPOL, Annexes I, II, III, and V.
27. US Department of Justice, 'Royal Caribbean to Plead Guilty to Conspiracy, Obstruction of Justice', 2 June 1998; available at .
28. 11 F. Supp. 2d 1358, 1371 (S.D. Fla. 1998).
29. 24 F. Supp. 2d 155, 159-60 (D.P.R. 1998).
30. Royal Caribbean I, 11 F. Supp. 2d at 1364.
31. See, e.g., United States v. B. Navi Ship Management Services et al., 4:08-CR-00032-33 (S.D. Tex. 2008); United States v. Ofer (Ships Holding) Ltd. et al., 4:08-CR-00103-104 (S.D. Ga. 2008); United States v. Fairport Shipping, Ltd., 3:04-CR-00130 (D. Alaska 2008); United States v. Clipper Marine Services et al., 2:07-CR-00264 (D.N.J. 2008); United States v. Reederei Karl Schlueter et al., 2:08-CR-00341 (E.D. Pa. 2008); United States v. The National Navigation Company, 3:08-CR-00154, 187, 198 (D. Ore., W.D. Wash., E.D. La. 2008); United States v. Diamlemos Shipping Corporation, 2:08-CR-00265 (C.D. Calif. 2008); United States v. Paccship (UK), Ltd., 4:08-CR-00016 (E.D. N.C. 2008); United States v. Ionia Management et al., 3:07- CR-00199, 134 (D. Conn. 2008); United States v. Oleg Kiselyov, 4:07-CR-00009 (E.D. N.C. 2008); United States v. Petraia Maritime Ltd., 2:06-CR-00091 (D. Maine 2007); United States v. Polar Tankers, 3:07-CR-00124 (D. Alaska 2007); United States v. neCalypso Maritime Corporation et al., 3:07-05367 and 05412 (W.D. Wash. 2007); United States v. Accord Ship Management et al., 3:07-CR-00399 (D.P.R. 2007); United States v. Kassian Maritime Navigation Agency Ltd. et al., No. 3:07-CR-00048 (M.D. Fla. 2007); United States v. Overseas Shipholding Group, Inc., 1:06-CR-00065, 10408, 10420-423 (C.D. Cal., N.D. Cal., D. Maine, D. Mass, E.D. N.C. 2007); United States v. Chian Spirit Mar. Enters., Inc., et al., 1:06-CR-00076 (D. Del.); United States v. Rodolfo Esplana Rey, 06-CR-00315 (C.D. Calif. 2006); United States v. Wallenius Ship Mgmt. Pte., Ltd., et al., 2:06-CR-00213 (D.N.J. 2006); United States v. Bottiglieri di Navigazione, 1:05-CR-00190 (S.D. Ala. 2005); United States v. Boyang (Busan) Ltd., et al., A- 05-0035-CR (D. Alaska 2005); United States v. DST Shipping, et al., 04-CR-1608, 1728 and 05- CR-00473 (C.D. Calif. 2005); United States v. Evergreen Int'l, S.A., 2:05-CR-238, 291, 294, 305 and 306 (C.D. Calif., D. N. J., D. Ore., D.S.C., W.D. Wash. 2005); United States v. MK Shipmanagement Company Ltd., 2:06-CR-00307 (D.N.J. 2006); United States v. MSC Ship Mgmt., et al., 1:05-CR-10269, 10274 and 10351 (D. Mass. 2005); United States v. Panagiotis Kokkinos et al., 1:05-CR-00347 and 00750 (E.D.N.Y. 2005); United States v. Fairdeal Group Mgmt., SA, 1:05-CR-00750 (S.D.N.Y. 2005); United States v. First Marine Service Co., 05-CR-00243 (D. Oregon 2005); United States v. Oilmar Co. Ltd., 2:05-CR-00617 (D.S.C. 2005); United States v. MMS Co. Ltd., et al.,04-CR-00037 (C.D. Cal., N.D. Cal., D. Oregon 2004); United States v. Fujitrans Corp. of Japan, 04-CR-0000469 and 00531 (C.D. Calif., D. Oregon 2004); United States v. Schlussel Reederei KG, CR-04-00477 D. Hawaii 2004); United States v. Sabine Transp. Co., 1:03-CR-00063 (N.D. Iowa 2003); United States v. OMI, 2:04-CR-00060 (D.N.J. 2004); United States v. Marmaras Navigation Ltd., 3:04-CR-01592 (W.D. Wash. 2004); United States v. Fairmont Shipping (Canada) Ltd. et al., 03-CR-00506 (D. Oregon 2003); United States v. Ta Tong Marine, 03-CR-05171 (W.D. Wash. 2003).
32. 534 F.3d 398 (5th Cir. 2008).
33. See, e.g., United States v. Jho, 534 F.3d 398 (5th Cir. 2008); see also U.S. v. Ionia Management S.A.,555 F.3d 303 (2nd Cir. 2009); United States v. Ionia Management, S.A., 498 F.Supp. 2d 477, 485 (D.Conn. 2007); United States v. Petraia Maritime, Ltd., 483 F. Supp. 2d. 34, 39 (D.Me. 2007).
34. Helsinki Commission, HELCOM Recommendation 19/14 - A Harmonized System of Fines in Case a Ship Violates Anti-Pollution Regulations, 1998; available at .
35. US Department of Justice, Tanker Company Fined $4.9 Million for Falsifying Records and Obstruction of Justice, 14 December 2007; available at .
36. US Department of Justice, Overseas Shipholding Group Inc. Will Pay Largest-Ever Penalty for Concealing Vessel Pollution, 19 December 2006; available at .
37. See generally 'Industry Pays Big Price for Oily Sins', TradeWinds, 22 December 2005 (reporting that the shipping industry is 'baffled' in the aftermath of a 2005 case as to why deliberate MARPOL violations continue).
38. See also discussion by Khee-Jin Tan, chapter 15 in this book.
39. J. Barrett and J. Grasso, 'Criminal Environmental Prosecutions and the Maritime Industry - A World-Wide Trend', BIMCO Review 2004; available at (summarising criminal vessel prosecutions in Australia, Canada, France, Germany, Singapore, Spain, Thailand, United Kingdom, Venezuela, and the United Sates).
40. INTERPOL's environmental crimes working group has identified deliberate ship source pollution as a 'pervasive' problem and is taking various steps to encourage greater international enforcement cooperation through its 'Clean Seas' project; see .