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Criminal Vessel Pollution Enforcement
Richard A. Udell Senior Trial AttorneyEnvironmental Crimes SectionU.S. Department of Justice601 D Street, NW - #2008Washington, D.C. [email protected]
GLOBAL GREENSHIP 2009
Summary of U.S. Enforcement
All types of commercial vessels -U.S. and foreign flag.Most frequent offense is deliberate violation of MARPOL Annex I.Ship owners/operators:– Criminal fines, Probation– Environmental Compliance Program– Community Service
Individual defendants– Imprisonment/Probation– Fines
Summary of EnforcementContinued
Most cases involve deliberatedischarges of tons of waste oil, sludge and other pollutants for financial gain.Intentional falsification of vessel records to deceive port authorities.Most cases involve obstruction of justice (witness tampering, destruction of evidence, alteration of documents, perjury).Very few cases involve negligent discharges.
DetectionSurveillance.Routine/Enhanced inspections.Analysis of ship records. Referrals from foreign countries. Whistleblower allegations.
BILGE HOLDING TANK LEVELS
05
1015202530
11/28
/2002
11/30
/2002
12/2/
2002
12/4/
2002
12/6/
2002
12/8/
2002
12/10
/2002
12/12
/2002
12/14
/2002
12/16
/2002
12/18
/2002
12/20
/2002
12/22
/2002
12/24
/2002
12/26
/2002
12/28
/2002
12/30
/2002
1/1/20
03
1/3/20
03
1/5/20
03
1/7/20
03
1/9/20
03
1/11/2
003
1/13/2
003
1/15/2
003
1/17/2
003
1/19/2
003
DATE
LEVE
L (m
3)
BHT-TSL (m3)
BHT-ORB (m3)
MotivesSaves money on purchasing and installing best available technology.Saves money on the cost of offloading waste in port.Saves money on the cost of parts. Saves money and time on maintenance costs. Financial bonuses to Chief Engineers for keeping within projected budget. For crew members: to maintain job in a military-like chain of command.For operators: to reduce costs for owners and customers.
Each of these vessels had a written and approved compliance program and had passed Class, Flag and Port State inspections.
An International Problem
EU Commission Study- Satellite Detection of Oil “Spills”Mediterranean Sea - Years 1999 to 2002
During the years 1999 to 2002, out of 11000 SAR images, the project detected 7000 oil “spills”
Prosecution GoalsProtection of the environment.Implementation of MARPOL.Punish knowing and intentional violations by those specifically trained and licensed to know better.Hold senior shipboard and shore-side supervisors accountable.Timely exercise of prosecutorial discretion.Help to create even playing field where law abiding companies are not disadvantaged.Deter future criminal conduct.Promote self-audits, voluntary disclosures.
U.S. Legal Approach
Title 18:– Knowing and willful materially false statements, 18 U.S.C. 1001. – Obstruction of justice – 18 U.S.C. 1505, 1512, 1519.
MARPOL/Act to Prevent Pollution from Ships:– Knowing failure to maintain an accurate Oil Record Book while a
ship is in port.Each port call with false Oil Record Book = additional charges. U.S. law does not require proof that Oil Record Book was inspected. Harm includes potential threat to U.S. ports and waters and undermines obligation to implement MARPOL.
Key U.S. enforcement tool is prosecutions focused upon use of falsified Oil Record Book while ship is in port.
U.S. Document Based Prosecution Theory Has Been Applied to Other
Ship Records
Garbage Record BookBallast Water Records
Recent ProsecutionsU.S. v. Polembros Shipping Limited, et al. (EDLA) (False Ballast Report; Violation of the Nonindigenous Aquatic Nuisance Prevention and Control Act for failure to maintain required records, PWSA failure to report a hazardous condition, APPS).U.S. v. Dalnave Navigation Inc., et al. (DNJ)(APPS, False Statements).U.S. v. Mylonakis, et al. (SDTex) (APPS, False Statements, Obstruction).U.S. v. Consultores De Navegacion, et al. (DMA) (APPS, False Statements, Obstruction).U.S. v. STX Pan Ocean Co. Ltd. (MDFla) (APPS, False Statements).U.S. v. Jho (EDTex) (APPS).U.S. v. General Maritime Mgt (Portugal), L.D.A. et al (SDTex) (APPS, False Statements).U.S. v. Holy House Shipping AB, et al. (DNJ) (APPS, False Statements).U.S. v. Jiong Guan Navegacion Japan Co. Ltd., et al. (MDFla) (APPS, False statements).U.S. v. Pendulum Ship Mgt, Inc., et al. (EDPA) (APPS, False Statements, Obstruction).U.S. v. Cota and Fleet Mgt. Ltd (NDCAL) (CWA/OPA, False Statements, Obstruction).
U.S. v. Genmar Maritime (Portugal) L.D.A.
Defendants convicted at trial.$1 Million fine.5 years probation with court appointed monitor to perform audits of ship and shore offices, submit monthly reports and face banning of ships for probation violations.New equipment bypassed and tricked.
U.S. v. Cota and Fleet Management Ltd.Pilot and Ship Manager prosecuted for negligent violation of CWA/OPA.Fleet Management also prosecuted for obstruction of justice and false statements.Approximately 53,000 gallons of oil discharged and 2,000 migratory birds killed.Court upheld constitutionality of CWA.Pilot sentenced to 10 months in prison.Case against Fleet Management pending sentencing.
U.S. v. Ionia ManagementDefendant was on probation and falsified compliance records and Oil Record Book.Indictments based on ports calls in 4 ports consolidated in 1 trial.Case involved foreign assistance.Sentencing included $4.9 criminal fine as well as compliance requirements monitored by Special Master.
U.S. v. Ionia Management
M/V Kriton
Slick
U.S. v. Overseas Shipholding Group, Inc.U.S. v. Kun Yun Jho
33 felony counts in 6 port districts.$37 Million. $9.2 Community Service.3 Years Probation. ECP with outside audits and court appointed monitor.U.S. v. Jho/OSG: Appellate decision upholding U.S. jurisdiction for maintaining a false Oil Record Book in port.
15United States v. Jho and OSG
Recent TrendsContinued non-compliance, including increased criminal sophistication oriented to avoid detection.Advances in detection and prosecution, including rapid real time investigation with holding of material witnesses. Increased international enforcement and cooperation.Increased but sometimes unsuccessful reliance by industry on control technologies.Increased litigation and trials.
How to Prevent Non-ComplianceCreate ship-board and shore-side accountability.Waste stream audit and minimization.Use best available technology and control technologies.Flexible budget for environmental compliance.Safety Management System.Internal/External audits.Provide meaningful training.Develop communication with crew.Reward compliance and penalize non-compliance. Verification:
– Enhanced physical inspections– Operational tests– Document analysis
ComplianceProcedural Approaches
Audit of all waste streams to determine and minimize content, volume, method of storage, capacity for storage, treatment and disposal and budget for costs. Enhanced communication between shore management and line engineers and lower level crew members.Assignment of senior corporate officer as environmental manager who is empowered to take action.Establish environmental component in routine ship-board and ISM safety meetings.Operational tests at sea with periodic certification.Training of trainers by experts and vendors.Establishment and verification of maintenance schedules.Establish formal written policy documents:– Corporate compliance statement– Operational procedures regarding storage, treatment and disposal of each waste
stream and testing, use and maintenance of equipment– Recordkeeping and log entry requirements– Job position descriptions– Rewards and punishment for compliance/non-compliance
Procedural ApproachesRole of Shore Managers and D.P.
Test pollution prevention equipment with actual waste streams while vessel is underway.Communicate with all levels of the Engine Department and with senior corporate officer to relay findings and concerns. Assignment of responsibility to senior corporate officer, Port Engineers and Chief Engineers. Assure adequacy of internal audits and implementation of corrective actions. Review of maintenance, log entries and turnover notes.Monitor workloads to make sure that crew prioritizes environmental compliance.Assure adequate budget, including waste removal and spare parts.Establish comprehensive check list for internal/external inspections/audits. Explore new technologies.
Procedural ApproachesHow to Encourage Employees to Make Internal Reports
Take measures to convince employees that company really wants compliance with all applicable laws, including MARPOL.De-couple costs from compliance.Display top level commitment. Establish direct and anonymous lines of communication to senior management. Zero tolerance for violators and for those who retaliate against those who report violations.Reward employees who report violations.Establish safety and environmental compliance as positive factors in employee personnel evaluations.
WHY ARE CRIMINAL
VIOLATIONSCONTINUING ??
QuestionsWhy do Insurance Clubs pay criminal costs?Why do companies, Class, Flag and ISM Auditors not find or not report bypassing.Why do flag states not enforce MARPOL? Why have ISM auditors not recorded major non-conformities after a criminal conviction? Why have industry associations not taken action against convicted member companies?
Why do senior engineers and other crew members deliberately risk their liberty, career and company’s image?Why does a convicted company continue to commit crimes while on probation?Why does a company under investigation continue to commit crimes?Why do senior engineers deliberately trick newly installed anti-tricking equipment?
Questions?
