IN THE UNITED STATES DISTRICT COURT FOR … THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN ... ... United States

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION GIUSEPPE BOTTIGLIERI SHIPPING ) COMPANY S.P.A., et al., ) PUBLISH )

Petitioners, ) ) v. ) CIVIL ACTION 12-0059-WS-B ) UNITED STATES OF AMERICA, et al., ) )

Respondents. )

ORDER

This matter comes before the Court on the Government’s Motion to Dismiss Petitioners’

Emergency Motion and Petition for Lack of Subject Matter Jurisdiction (doc. 24). The Motion

has been briefed on an expedited basis, including supplemental briefing on the applicability of

the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.1

I. Relevant Background.

Petitioners, Giuseppe Bottiglieri Shipping Company S.P.A. (the “Owner”) and the M/V

BOTTIGLIERI CHALLENGER (the “Vessel”), in rem, initiated this action to solicit judicial

resolution of a stalemated negotiation between the Owner and the U.S. Coast Guard.

A. The Coast Guard Investigation.

In summary, the relevant undisputed facts are as follows: On January 24, 2012, the

Vessel (which is owned and operated by an Italian company, and is registered in Italy) arrived at

the Port of Mobile, Alabama, to unload a cargo of steel plates. (Doc. 1, ¶¶ 4, 5.) The following

day, U.S. Coast Guard officers boarded the Vessel for eight hours, during which time they

interviewed the ship’s master and crew members concerning possible violations of the Act to

Prevent Pollution from Ships, 33 U.S.C. §§ 1901 et seq. (“APPS”). During those interviews,

1 Because the parties’ briefs reveal no material disputed facts that would require

credibility determinations, the undersigned takes the Motion under submission without an evidentiary hearing. See Local Rule 7.3.

Case 1:12-cv-00059-WS-B Document 32 Filed 02/17/12 Page 1 of 16

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Coast Guard officials were allegedly informed that the Vessel was equipped with a “magic pipe”

for the unlawful discharge of machinery space waste, and that chief engineer Vito La Forgia had

directed the crew on at least six occasions since December 2011 to utilize the “magic pipe” to

discharge such waste directly into the sea, without first passing it through required pollution

prevention equipment. Crew members are alleged to have shown Coast Guard officials the

magic pipe and flange and demonstrated its operation.2 Apparently, the Coast Guard collected

written and/or oral statements from several of the witnesses.

If such discharges occurred, and if they were not properly logged in the Oil Record Book

(“ORB”), then criminal liability may attach under the APPS based on presentment of a false

ORB in the United States. See 33 U.S.C. § 1908(a) (“A person who knowingly violates the

MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regulations issued

thereunder commits a Class D felony.”); 33 C.F.R. § 151.25(d) (“Entries shall be made in the Oil

Record Book on each occasion … whenever any of the following machinery space operations

take place on any ship to which this section applies – (1) Ballasting or cleaning of fuel oil tanks;

(2) Discharge of ballast containing an oily mixture or cleaning water from fuel oil tanks; (3)

Disposal of oil residue; and (4) Discharge overboard or disposal otherwise of bilge water that has

accumulated in machinery spaces.”); United States v. Ionia Management S.A., 555 F.3d 303, 309

(2nd Cir. 2009) (holding that “the APPS’s requirement that subject ships ‘maintain’ an ORB, 33

C.F.R. § 151.25, mandates that these ships ensure that their ORBs are accurate (or at least not

knowingly inaccurate) upon entering the ports or navigable waters of the United States”); United

States v. Jho, 534 F.3d 398, 403 (5th Cir. 2008) (“we read the requirement that an oil record book

be ‘maintained’ as imposing a duty upon a foreign-flagged vessel to ensure that its oil record

book is accurate (or at least not knowingly inaccurate) upon entering the ports of navigable

waters of the United States.”).3

2 The facts concerning information received by the Coast Guard onboard the Vessel

are derived from the Affidavit in Support of Criminal Complaint and Application for Arrest Warrant submitted by Christopher R. Whitmarsh, Special Agent, Coast Guard Investigative Service, in Case Number 12-mj-00014-B in this District Court. The Criminal Complaint and accompanying Affidavit are unsealed, a matter of public record, and a proper subject for judicial notice.

3 As the Coast Guard explains, even though laws prohibit “magic pipe” discharges, there are often-intractable problems of jurisdiction and proof as to whether a discharge from a (Continued)


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On January 26, 2012, the Coast Guard delivered to the Vessel a letter setting forth its

determination that “there is reasonable cause to believe that the [Vessel], its owner, operator,

person in charge, or crew member(s) may be subject to a fine or civil penalty.” (Doc. 24, Exh.

A.) The Coast Guard notified the Vessel that it had requested that the United States Customs and

Border Protection (“CBP”) withhold the Vessel’s departure clearance to leave the Port of

Mobile, which CBP did. (Id.)4 The January 26 letter further notified the Vessel that “[w]hen the

associated investigation is complete, we will request that CBP grant departure clearance for the

vessel.” (Id.)

B. Negotiations for a Surety Agreement.

APPS furnishes vessel owners with a possible means of obtaining departure clearance,

through posting of a bond or other surety. See 33 U.S.C. § 1908(e) (“Clearance may be granted

upon the filing of a bond or other surety satisfactory to the Secretary.”). After the January 26

letter, attorneys for the Owner and the Coast Guard commenced extensive (and often

acrimonious) negotiations for a surety agreement that would enable the Vessel to obtain the

necessary clearance to leave the Port of Mobile and resume operations, thereby staunching losses

of $15,000 per day in hire, plus accrual of substantial port costs. (See doc. 10, ¶ 5 (enumerating

Owner’s alleged financial losses).) A blow-by-blow account of these discussions would be both

unnecessary and unhelpful; however, two principal sticking points emerged. First, the parties

disagreed as to the amount of the bond itself, with the Owner offering $500,000 and the Coast

Guard demanding $750,000 as of January 30, 2012. (See Nichols Decl., at ¶ ¶ 16-17 & Exh. 2.))

foreign-flagged ship occurred in an area subject to U.S. jurisdiction. See generally United States v. Abrogar, 459 F.3d 430, 435 (3rd Cir. 2006) (“under the APPS and accompanying regulations, Congress and the Coast Guard created criminal liability for foreign vessels and personnel only for those substantive violations of MARPOL that occur in U.S. ports or waters.”). As a result, these kinds of offenses are typically prosecuted as record-keeping violations, rather than as illegal discharges, per se. (Nichols Decl. (doc. 24, Exh. B), at ¶ 5.)

4 Although petitioners decry it, both agencies’ authority to proceed in this manner is clearly prescribed by APPS. See 33 U.S.C. § 1908(e) (“[I]f reasonable cause exists to believe that the ship, its owner, operator, or person in charge may be subject to a fine or civil penalty under this section, the Secretary of the Treasury, upon the request of the Secretary [of the department in which the Coast Guard is operating], shall refuse or revoke the clearance required by section 60105 of Title 46.”). That procedure appears to have been followed to the letter here.


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On February 3, 2012, the Coast Guard reduced its bond demand to $700,000, which the Owner

promptly rejected as a “non-starter.” (See Chalos Supp. Decl. (doc. 27, Exh. 1), ¶ 4 & Exh. B.)

Second, the parties could not reach an accord on provisions for the eight crew members

whose presence in Mobile the Coast Guard requires as its APPS investigation proceeds.

Specifically, the parties clashed as to the extent of the Owner’s financial responsibilities to those

crew members for wages, housing and per diem expenses. Slicing through the rhetoric,

distortions and self-serving characterizations, the state of the negotiations appears to be as

follows: On February 3, 2012, the Owner offered to arrange and pay for reasonable hotel

accommodations, total wages, medical benefits, and a per diem allowance of $40/day for the

eight crew members for a period “not to exceed sixty (60) days or as otherwise ordered by the

Court.” (Chalos Supp. Decl., ¶ 4 & Exh. B.)5 The Coast Guard countered later that day with a

proposal to enlarge the 60-day period of housing and living expenses to 180 days. (Id.)6 Again,

that counterproposal was summarily rejected by the Owner on February 3, 2012. (Id.)

Petitioners’ position is that, following this failed exchange of proposals on February 3,

2012, there have been no further substantive negotiations concerning the proposed security

agreement. (Chalos Supp. Decl., ¶¶ 5-12.) The Government contends that this is false, and that

as recently as February 13, 2012, the Owner attempted to rekindle settlement negotiations. (Doc.

30, at 3.) Tellingly, however, the Government does not suggest that the Coast Guard has re-

engaged the Owner in surety agreement negotiations or altered its bargaining position one whit

5 To be clear, the Owner was not offering to make these payments for the crew’s welfare with no strings attached. To the contrary, the Owner indicated that it would undertake these responsibilities only “provisionally” and “in the first instance,” while reserving the right “to seek recovery of such costs and other damages” from the Coast Guard or others, pursuant to 33 U.S.C. § 1904. (Id.) In other words, the Owner would reserve the right to sue to get these crew payments back from the Government or a third party.

6 The source of any 180-day requirement is unclear, in light of recent authority emanating from this very District Court. See Mercator Lines Limited (Singapore) PTE.LTD, et al., Misc. No. 11-00024-CG-C (S.D. Ala. Oct. 25, 2011) (slip op.) (ordering Government to conduct detained crew member’s deposition in the next 45 days and to appear thereafter to show cause why petitioner should not be released to his homeland pursuant to 18 U.S.C. § 3144). Upon the Government’s appeal, the Mercator Order was affirmed by Judge Granade on November 18, 2011. (Doc. 2, Exh. U.) Pursuant to Mercator, it seems extraordinarily unlikely that the subject crewmen could possibly remain in this jurisdiction for a time period anywhere approaching 180 days, so the Coast Guard’s insistence on such a term is curious.


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in response to those overtures. Thus, it is clear that the Coast Guard has not wavered in the least

from the demand it communicated to the Owner on February 3, 2012 (i.e., the $700,000, and the

180-day arrangement for crew members’ expenses), nor is there any indication that it is

contemplating doing so. By all appearances, the February 3 demand was (and still remains) the

Coast Guard’s last and final offer for a surety agreement under § 1908(e).

C. The Present Status of the Eight Crew Members.

Even while the Owner and Coast Guard were attempting to negotiate terms to allow the

Vessel to receive clearance to leave the Port of Mobile and continue with its charter hire

responsibilities, events moved swiftly as to the eight subject crew members.7 On February 9,

2012, a Criminal Complaint and Arrest Warrant were issued for Vito La Forgia (the Vessel’s

chief engineer) in this District Court, alleging that he had provided false statements to the U.S.

Coast Guard on January 25, 2012, in violation of 18 U.S.C. § 1519. (See Case No. 12-mj-

00014.) La Forgia was arrested and had an initial appearance before Magistrate Judge Bivins on

February 9, 2012, following which he was allowed to remain free on conditions of release,

including surrendering his passport and refraining from travel outside this judicial district. As

for the other seven crew members (Mario Salierno, Papy Paalisbo Bucol, Stephen Carrillo

Mondigo, Donald Dinulma Tidang, Geoffrey Rasay Bagcal, Mauro Serra, and Rey Dato-On

Arebejo), Judge Bivins executed material witness warrants for their arrest on February 10, 2012.

(See id.) Those crew members appeared in court later that day, and were released, subject to

conditions that they surrender their passports and remain in Mobile. (Doc. 28.)

The Court understands that all eight of these individuals are no longer residing aboard the

Vessel and that none of them are presently incarcerated, but are being housed in a local hotel.

Earlier this week, the Owner reached an agreement with independent counsel for each of the

crew members, pursuant to which the Owner agreed to continue paying those crew members’

total wages and benefits through the earlier of March 30, 2012 or the conclusion of those

individuals’ depositions pursuant to Rule 15, Fed.R.Crim.P. (See doc. 31.)

7 Separate counsel have been appointed or retained for each of these crew

members, two of whom (Mario Salierno and Mauro Serrah) have appeared and sought leave to intervene in this matter.


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II. Analysis.

The Government has moved for dismissal of this action in its entirety for lack of subject

matter jurisdiction. To a great extent, the Motion to Dismiss focuses on the judicial review

provisions of APPS, as set forth in 33 U.S.C. § 1910.8 By Order (doc. 29) entered on February

13, 2012, the undersigned concluded that judicial review under § 1910 is inappropriate and

unavailable because (i) petitioners do not invoke the § 1910 judicial review provisions and do

not purport to be bringing their Emergency Motion and Petition pursuant to § 1910(a); and (ii) in

any event, petitioners have not satisfied the 60-day notice provision that is a condition precedent

to instituting suit under § 1910(a).9 (See doc. 29, at 5-7.) Accordingly, jurisdiction cannot be

conferred by the judicial review provisions of APPS because petitioners do not travel under that

statute and have not complied with necessary notice prerequisite. The authority (if any) for this

Petition must originate from another source.

A. The Administrative Procedure Act.

The Emergency Motion and Petition identifies as a jurisdictional foothold the

Administrative Procedure Act (“APA”), and particularly its provision that “[a]gency action made

reviewable by statute and final agency action for which there is no other adequate remedy in a

court are subject to judicial review.” 5 U.S.C. § 704 (emphasis added). At the Court’s

directive, the Government filed a supplemental brief on the APA’s applicability to this dispute.10

8 That statute provides, in part, that “any person having an interest which is, or can

be, adversely affected, may bring an action on his own behalf … (1) against any person alleged to be in violation of the provisions of this chapter, or regulations entered hereunder; [or] (2) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under this chapter which is not discretionary with the Secretary.” 33 U.S.C. § 1910(a).

9 That notice provision reads, in part, as follows: “No action may be commenced under subsection (a) of this section … prior to 60 days after the plaintiff has given notice, in writing and under oath, to the alleged violator, the Secretary concerned or the Administrator, and the Attorney General.” 33 U.S.C. § 1910(b)(1).

10 To be clear, it is well-established that the APA “is not a jurisdiction-conferring statute,” that “the jurisdictional source for an action under the APA is the ‘federal question’ statute,” and that the APA’s judicial provisions provide “a limited cause of action for parties adversely affected by agency action.” Lee v. U.S. Citizenship and Immigration Services, 592 F.3d 612, 619 (4th Cir. 2010) (citations and internal quotation marks omitted). But if this dispute does not fall within the APA’s judicial review provisions, then there is no right of action under that statute and, hence, no jurisdiction. The ultimate question, then, is whether petitioners’ (Continued)


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As an initial matter, the Government argues that there is no “final agency action.” In an

APA challenge, “federal jurisdiction is … lacking when the administrative action in question is

not ‘final’ within the meaning of 5 U.S.C. § 704.” National Parks Conservation Ass’n v. Norton,

324 F.3d 1229, 1236 (11th Cir. 2003). The Government disputes the finality of the Coast

Guard’s position on the surety agreement, insisting that “surety negotiations are on-going.”

(Doc. 30, at 3-4.) All indications are to the contrary. Indeed, the record reflects that the Coast

Guard presented an ultimatum to the Owner on February 3, to-wit: If you want departure

clearance for the Vessel, you must pay a $700,000 bond and agree to cover crew members’

wages and expenses for 180 days. The Government has not suggested – and the record does not

show – that the Coast Guard established these terms on a tentative or interlocutory basis, that it is

amenable to further negotiation of them, or that it has been even slightly receptive to petitioners’

recent efforts to reopen those discussions. Under any reasonable interpretation, the Coast

Guard’s final, non-negotiable, take-it-or-leave-it demand must satisfy the “final agency action”

jurisdictional prerequisite for an APA challenge. See Fanin v. U.S. Dep’t of Veterans Affairs,

572 F.3d 868, 877 (11th Cir. 2009) (“To be considered ‘final,’ an agency’s action: (1) must mark

the consummation of the agency’s decisionmaking process – it must not be of a merely tentative

or interlocutory nature; and (2) must be one by which rights or obligations have been determined,

or from which legal consequences will flow.”) (citations omitted).11

Next, the Government maintains that APA review is unavailable here because “federal

courts lack jurisdiction over administrative action where … agency action is committed to

agency discretion by law.” Norton, 324 F.3d at 1236; see also 5 U.S.C. § 701(a)(2) (“This

claims lie within the APA’s “limited cause of action.” If not, then they cannot sustain their Petition by reliance on the APA.

11 In arguing otherwise, the Government suggests that there can be no final agency action here because the Owner has not completed the administrative appeals process. Yet the Government’s own brief concedes that “[o]nce the Coast Guard takes final agency action, there is a procedure for appealing that action.” (Doc. 30, at 3 n.2.) So, by the Government’s own reckoning, the “final agency action” is the Coast Guard decision that is appealed, as contrasted with the Coast Guard’s post-appeal decision. If the Government agrees that this appeal process is available to the Owner now, then by implication there must be a “final agency action” to appeal.


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chapter applies … except to the extent that … agency action is committed to agency discretion

by law.”). “[T]he primary focus of section 701(a)(2) is whether the governing statute provides

the courts with ‘law to apply’.” Forsyth County v. U.S. Army Corps of Engineers, 633 F.3d

1032, 1040 (11th Cir. 2011). What this means is that, if Congress “has indicated an intent to

circumscribe agency enforcement discretion, and has provided meaningful standards for defining

the limits of that discretion, there is ‘law to apply’ under § 701(a)(2), and courts may require that

the agency follow that law; if it has not, then an agency … decision [is] ‘committed to agency

discretion by law’ within the meaning of that section.” Forsyth County, 633 F.3d at 1040 (citing

Heckler v. Chaney, 470 U.S. 821, 834-35, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)). As a

practical matter, then, § 701(a)(2) means that “review is not to be had if the statute is drawn so

that a court would have no meaningful standard against which to judge the agency’s exercise of

discretion.” Id. at 1041 (citing Heckler, 470 U.S. at 830).

The gravamen of the Emergency Motion and Petition is petitioners’ position that the

Coast Guard has “arbitrarily, capriciously, and purposefully refused to negotiate in good faith

and [has] failed to accept a reasonable bond or other form of surety in accordance with the clear

statutory requirements of 33 U.S.C. § 1908(e).” (Doc. 1, at 17.)12 But § 1908(e) says merely

that “[c]learance may be granted upon the filing of a bond or other surety satisfactory to the

Secretary.” Id. On its face, this language confers enormously broad discretion on the Coast

Guard to decide, in the first place, whether to grant clearance at all (hence the statement that

clearance may – not “must” or “shall” – be granted) and, if so, on what terms (hence the

allowance for bond or other surety “satisfactory to the Secretary”).13 From the text of § 1908(e),

a reviewing court would have no meaningful standard at all against which to judge whether the

Coast Guard’s exercise of its discretion was appropriate or not. Congress did not require the

Coast Guard to accept a bond or other surety in any case. It did not grant an absolute right to a

vessel owner to obtain departure clearance. It did not outline (even in the broadest brushstrokes)

12 Petitioners have stressed this point, writing that “the Emergency Petition seeks the Court’s proper intervention to review the Coast Guard’s unreasonable, prejudicial, and impermissible overreach of its agency authority under 33 U.S.C. § 1908(e).” (Doc. 27, at 5.)

13 In their brief, petitioners balk that “[w]ith regard to APPS, the statute simply does not give the Coast Guard the power to self-servingly interpret the meaning of ‘surety satisfactory to the secretary.’” (Doc. 27, at 7.) On the contrary, its plain language appears to do just that.


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the parameters for what form or amount a bond or other surety should take. It did not impose a

reasonableness limitation on the bond or other surety fixed by the Coast Guard. It did not even

specify what a “bond or other surety” is, or clearly bar the Coast Guard from including non-

financial terms in § 1908(e) surety agreements.14 A court could not possibly evaluate what is or

is not actually “satisfactory” to the Coast Guard, save perhaps by cross-examining the

Commandant of the Coast Guard about his own subjective beliefs and perceptions.

As noted, APA review of a final agency decision is unavailable where there is no law to

apply (i.e., where Congress has not indicated an intent to circumscribe agency enforcement

discretion, and has not provided meaningful standards for defining the limits of that discretion).

That is precisely the case here. At its core, the Emergency Motion and Petition is an attempt by

petitioners to have this Court force the Coast Guard to restore the Vessel’s departure clearance

and to fix terms of a mandatory surety agreement that are less onerous than those proposed by

the Coast Guard. But Congress expressly afforded the Coast Guard virtually unfettered latitude

to decide whether or not to grant clearance, and if so, what terms of “bond or other surety” would

be “satisfactory” to it. What this Court deems “satisfactory” and what the Coast Guard deems

“satisfactory” may be very different things. Congress has given this Court no “law to apply” and

no meaningful standards to review the Coast Guard’s inherently subjective determination. It is

14 A recurring theme in petitioners’ filing is that a “bond or other surety” means

money only, and that the Coast Guard’s insistence on non-financial terms violates § 1908(e). But Congress did not unambiguously prohibit the Coast Guard from imposing non-financial terms on vessel owners. The phrase “bond or other surety” is ambiguous. If “bond” equates to the posting of money, then logically “other surety” must refer to some form of assurance other than money; otherwise, it would be redundant of the term “bond.” See, e.g., United States v. Aldrich, 566 F.3d 976, 978 (11th Cir. 2009) (“statutes should be construed so that no clause, sentence, or word shall be superfluous, void, or insignificant”) (citation and internal quotation marks omitted); United States v. Fuentes-Rivera, 323 F.3d 869, 872 (11th Cir. 2003) (“when interpreting a statute, it is necessary to give meaning to all its words so that no words shall be discarded as being meaningless, redundant, or mere surplusage”) (citation and internal quotation marks omitted); Black’s Law Dictionary (9th ed. 2009), at 1580 (defining “surety” as “[a] formal assurance; esp., a pledge, bond, guarantee, or security given for the fulfillment of an undertaking”). Nothing in that statutory language would plainly forbid an interpretation of “surety” as encompassing assurances for the welfare and availability of crew members, in addition to a cash bond. The point is that the statutory phrase “bond or other surety satisfactory to the Secretary” gives this Court no legal standard to apply in reviewing the Coast Guard’s decision on the surety terms it proposed in this case.


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beyond cavil that “[t]he court is not empowered to substitute its judgment for that of the agency

… when the relevant statute leaves room for a responsible exercise of discretion and may not

require particular substantive results in particular problematic instances.” Forsyth County, 633

F.3d at 1041 (internal citations and quotation marks omitted). Yet that is, in effect, what

petitioners are asking the Court to do.

For these reasons, the Court concludes that petitioners’ request for judicial review of the

take-it-or-leave-it surety agreement terms proposed by the Coast Guard lies outside the scope of

the Administrative Procedure Act, inasmuch as the Coast Guard’s actions are “committed to

agency discretion by law.” 5 U.S.C. § 701(a)(2). There is no law to apply and no meaningful

standard against which to judge the Coast Guard’s exercise of its discretion under 33 U.S.C.

§ 1908(e) in setting terms for a surety agreement under which customs clearance would be

granted to the Vessel; therefore, that decision is not subject to judicial review under the APA,

and the APA cannot provide a jurisdictional basis for the Emergency Motion and Petition.15

B. Other Asserted Bases for Jurisdiction.

Having confirmed that petitioners have not invoked the judicial review provisions of

APPS (or satisfied the notice prerequisite to such review) and having determined that APA

review is not available here, the Court now turns to petitioners’ other asserted grounds for

requesting judicial intervention in their stalled negotiations with the Coast Guard.

For starters, petitioners contend that “[t]his Court absolutely has the authority to review

any statute whose meaning and interpretation is at issue.” (Doc. 27, at 5.) However, the mere

fact that a federal agency and a private entity disagree over the meaning of a statute does not

necessarily confer jurisdiction on federal courts to adjudicate the dispute; rather, there must be a

legal vehicle for review of the agency’s interpretation. With neither APPS nor the APA

providing for judicial review of the agency’s construction of § 1908(e) under the circumstances

15 Cf. Webster v. Doe, 486 U.S. 592, 600, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988)

(APA review precluded under § 701(a)(2) where Congress authorized agency to act whenever it “shall deem such termination necessary or advisable,” such that standard “fairly exudes deference to the Director” and “foreclose[s] the application of any meaningful judicial standard of review”); Drake v. F.A.A., 291 F.3d 59, 72 (D.C. Cir. 2002) (finding no APA claim under § 701(a)(2) where statute “gives the FAA virtually unbridled discretion over such decisions” and the “only statutory reference point is the Administrator’s own beliefs,” such that “a court has no meaningful standard against which to judge the agency’s exercise of discretion”).


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of this case, it is incumbent on petitioners to identify some other provision or principle creating a

private right of action or right to judicial review of the Coast Guard’s application of § 1908(e) to

its negotiations with the Owner. This they have not done. Mere generalities about courts’

authority to review and interpret statutes are unavailing.

Next, petitioners argue that “[t]he District Court is empowered to act to prevent a

manifest injustice or the abridgement of Petitioner’s due process rights.” (Doc. 27, at 7.) There

is no indication of “manifest injustice” here. The Coast Guard and the Owner have attempted to

negotiate a surety agreement. The Owner has declined the Coast Guard’s final offer, although it

could decide otherwise if it chooses. Despite petitioners’ rhetoric about statutory and

constitutional rights, the heart of the dispute is the Coast Guard’s demand that bond be set at

$700,000, and the Owner’s belief that $500,000 is sufficient. This is not manifest injustice.16

And there has been no abridgement of petitioners’ due process rights. Petitioners enjoy a due

process right to seek reconsideration or bring an administrative appeal of the Coast Guard’s

decision concerning surety agreement terms, and to potential judicial review (at a minimum, in

the form of an action for damages arising from unreasonable detention or delay of the Vessel).

To date, however, they have attempted to circumvent these procedures by filing a lawsuit

targeted outside the APPS administrative and judicial review scheme. Petitioners have abundant

process available to them and have not been deprived of it; rather, they have simply chosen not

to avail themselves of that process. Such a voluntary choice does not equate to a constitutional

deprivation warranting immediate judicial intervention, even assuming petitioners had brought a

§ 1983 cause of action for violation of due process (which they have not).

16 To be sure, petitioners protest that the Coast Guard is violating the Constitution

by requiring “a waiver of rights and defenses” and “infring[ing] upon the rights and liberties of foreign seafarers.” (Doc. 27, at 7.) Neither of these characterizations is accurate. Even under the terms demanded by the Coast Guard, the Owner and Vessel retain the full panoply of rights and defenses in any civil, criminal or administrative proceedings that the Government might initiate against them. As for the crew members, objections predicated on their “rights and liberties” are a red herring at this juncture. The rights and liberties of those individuals are more than adequately protected, given that (i) all eight of them have been served with arrest or material witness warrants, are represented by independent counsel, and are under the active supervision of this District Court at this time; and (ii) the Owner has separately agreed to pay total wages and benefits to these individuals through the end of March 2012.


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As another basis for jurisdiction, petitioners argue that subject-matter jurisdiction is

proper when “the legal question is ‘fit’ for resolution and delay means hardship, or when

exhaustion would prove ‘futile.’” (Doc. 27, at 10.) This argument is misplaced. As a statement

of black-letter law, it is correct that the Supreme Court has recognized the cited exceptions to the

general requirement of exhaustion of administrative remedies. See Shalala v. Illinois Council on

Long Term Care, Inc., 529 U.S. 1, 13, 120 S.Ct. 1084, 146 L.Ed.2d 1 (2000) (“Doctrines of

‘ripeness’ and ‘exhaustion’ contain exceptions, however, which exceptions permit early review

when, for example, the legal question is ‘fit’ for resolution and delay means hardship, … or

when exhaustion would prove ‘futile.’”) (citations omitted). But petitioners misapprehend the

procedural posture of this case. The Court’s jurisdictional determinations are not predicated on a

lack of ripeness or exhaustion. As noted in the February 13 Order and confirmed supra,

petitioners do not purport to bring this action under the judicial review provisions of APPS.

They have not invoked § 1910(a).17 There simply is no APPS claim presented in their

Emergency Motion and Petition. That being the case, petitioners’ failure to exhaust

administrative remedies that are a prerequisite to suit under § 1910(a) is inconsequential. Stated

differently, it makes no difference whether petitioners were or were not excused from satisfying

exhaustion requirements for a claim that they unquestionably have not presented in this action.18

Petitioners also urge the Court to find that jurisdiction is proper based on federal courts’

“exclusive, original jurisdiction to consider alleged violations of federal criminal statutes.”

(Doc. 27, at 12.) It is true that “[t]he district courts of the United States shall have original

17 See February 13, 2012 Order (doc. 29) at 6-7 (“Nowhere in the lengthy

Emergency Motion and Petition (doc. 1) do petitioners purport to be bringing a legal action under 33 U.S.C. § 1910(a); therefore, whether they could have done so or not is a question of no more than academic interest.”).

18 Besides, petitioners have not shown that submitting to the administrative appeal process would be futile, under the particular facts and circumstances of this case, given the specific sticking points in this negotiation and the present status of these crewmen. And the suggestion that there is a “hardship imposed by the Coast Guard upon foreign seafarers who would be required to remain in the Southern District of Alabama for an indefinite period of time” (doc. 27, at 11) is a non-issue in the present procedural posture of this action. As noted supra, given recent developments in the criminal proceeding, there are more than adequate procedural safeguards in place to protect these crew members from the “hardship” contemplated by petitioners, even without immediate judicial review of the Vessel and Owner’s claims.


-13-

jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United

States.” 18 U.S.C. § 3231. But the terms and conditions under which the Vessel may receive

customs clearance to leave the Port of Mobile are not a criminal matter. The alleged wrongs by

the Coast Guard in those negotiations are not “offenses against the laws of the United States.”

And § 3231 does not create a private right of action (separate and apart from the APA) for any

person who desires judicial interpretation of any federal statute with a criminal component. This

asserted basis for the Emergency Motion and Petition is baseless.

Finally, petitioners contend that jurisdiction over their Emergency Motion and Petition is

proper pursuant to Rule E of the Supplemental Rules for Admiralty or Maritime Claims. This

argument fails for at least three reasons. First, on its face, Supplemental Rule E “applies to

actions in personam with process of maritime attachment and garnishment, actions in rem, and

petitory, possessory, and partition actions.” Supplemental Rule E(1). This case is none of those

things. The Coast Guard has not attached or arrested the Vessel, is not seeking forfeiture of the

Vessel, or the like; rather, it has simply arranged for the Vessel’s customs clearance to be

suspended unless and until bond or other surety satisfactory to the Coast Guard is made. The

Supplemental Rules say nothing about customs clearances or the terms under which the Coast

Guard and CBP must or may grant them; therefore, those Rules have no application here. See

Wilmina Shipping AS v. United States, 2010 WL 2079905, *3 (S.D. Tex. May 19, 2010) (finding

no jurisdiction under Supplemental Admiralty Rule E, and reasoning that “[t]he action at issue

here is not an attachment pursuant to a civil action, but rather a withholding of customs clearance

under 33 U.S.C. § 1908(e),” which “procedures are specific to the APPS statute, and are not

supplemented by civil Admiralty Rules governing actions in rem and quasi in rem”).

Second, the general terms of Supplemental Rule E cannot trump the specific provisions

of 33 U.S.C. § 1908(e) which are at issue in the parties’ negotiations. See generally Hinck v.

United States, 550 U.S. 501, 127 S.Ct. 2011, 167 L.Ed.2d 888 (2007) (citing “well-established

principle” that “a precisely drawn, detailed statute pre-empts more general remedies”) (citations

omitted); Nguyen v. United States, 556 F.3d 1244, 1253 (11th Cir. 2009) (“The canon is that a

specific statutory provision trumps a general one.”).19 In other words, Congress having created a

19 These authorities are apt, inasmuch as it is generally regarded that “the Federal

Rules of Civil Procedure have statutory effect.” U.S. for Use of Tanos v. St. Paul Mercury Ins. (Continued)


-14-

specific statute addressing surety agreements for customs clearances, the general provisions of

the Supplemental Rules must yield to the more specific § 1908(e) provisions on that topic.

Third, petitioners do not identify a single case authority, statutory provision, rule or

regulation that has ever recognized applicability of the Supplemental Rules to afford a vessel

owner an “absolute right to obtain the release of the vessel upon the posting of adequate

security” (doc. 27, at 16) where the Coast Guard and CBP are withholding customs departure

clearance under the APPS.20 This Court will not be the first, particularly when the plain

language of § 1908(e) refutes the existence of any such absolute right.

III. Conclusion.

Petitioners find themselves in an unenviable position. The Owner and crew members are

under criminal investigation for violation of the record-keeping requirements of the APPS. The

Coast Guard has arranged for the withholding of the Vessel’s clearance to leave the Port of

Mobile, pending bond or other surety satisfactory to the Coast Guard, as provided by 33 U.S.C.

§ 1908(e). As a result, the Vessel is trapped in a foreign port far from home. Every day, the

Owner is losing money on charter hire, port fees, and other expenses. And the Coast Guard is

insisting on terms of a surety agreement that the Owner finds distasteful, particularly the

imposition of a $700,000 bond and coverage of eight crew members’ living expenses and wages

for up to 180 days. The Owner thinks these terms are excessive.

Co., 361 F.2d 838 (5th Cir. 1966); see also Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Company, Inc., 313 F.3d 385, 392 (7th Cir. 2002) (“For federal rules of procedure have the force of statutes.”).

20 Petitioners argue that “[i]t is indisputable that reliance on Supplemental Rule E(5) has already been conceded as being both appropriate and applicable to these matters by the Coast Guard.” (doc. 27, at 16-17.) The Court disagrees. At most, petitioners show that the Coast Guard proposed, as a part of the surety agreement, that the parties agree that Supplemental Rule E(5) would apply to attach the Government’s criminal and civil penalty claims to the security paid by the Owner. To propose that the parties adopt Supplemental Rule E(5) as a matter of contract is not to concede that Supplemental Rule E(5) would apply in the absence of any such contractual agreement. And to say that Supplemental Rule E(5) governs the legal effect of the security (once paid) vis a vis the Government’s criminal and civil penalty claims is a far cry from admitting that Supplemental Rule E(5) governs the underlying negotiations, trumps 33 U.S.C. § 1908(e), or gives the Owner an absolute right to obtain customs clearance for the Vessel for any security the Owner deems reasonable.


-15-

Confronted with these circumstances, the Owner has options. It could accede to the

terms demanded by the Coast Guard, even though it thinks them unreasonable.21 Alternatively,

the Owner could request reconsideration and/or appeal the surety agreement terms proposed by

the Coast Guard by invoking the procedure specified in 46 C.F.R. Subpart 1.03. Or it could

provide the Coast Guard and Attorney General with the 60-day notice required for judicial

review under 33 U.S.C. § 1910(b)(1) and initiate judicial review proceedings under APPS when

that period expires, with an eye towards seeking relief from exhaustion requirements on futility

grounds and/or recovering damages under § 1904(h) for what it perceives as the unreasonable

detention or delay of the Vessel by the Coast Guard. All of these options are imperfect, but they

are available options nonetheless.

The Owner selected none of these avenues, but instead would create a brand-new remedy

with no basis in the APPS or the case law, by asking this Court to enter the fray to force the

Coast Guard to accept surety agreement terms that the Owner thinks are reasonable. The trouble

is that the Owner is attempting to jam a square peg into a round hole – it just does not fit.

Nothing in the APPS furnishes vessel owners with the option of seeking a “second opinion” from

the federal courts if they are dissatisfied with the Coast Guard’s offer in a § 1908(e) surety

agreement negotiation. Nor does the APA provide a vehicle for challenging the Coast Guard’s

exercise of its virtually unbounded, standardless discretion in deciding what surety agreement

terms are “satisfactory” to it. The Supplemental Admiralty Rules have no application to the

withholding of a customs clearance in an APPS case. The other jurisdictional pathways

identified by petitioners are not available in this case and/or do not give rise to a private right of

action to have this Court interpret the meaning of § 1908(e) or review a Coast Guard application

of that statute with which petitioners disagree. And the argument that this Court should throw

out all of these legal considerations and step in to protect the basic human rights and liberties of

the affected crewmen is a red herring, as this matter stands today.22

21 This avenue would have the advantage of allowing the Vessel to obtain customs

clearance, to leave Mobile immediately, and to resume economically productive activities for the benefit of the Owner in short order.

22 Again, all eight of these crewmen have been served with warrants in an ongoing criminal proceeding in this District Court. All have appeared before a Magistrate Judge and are subject to ongoing supervision. All have received independent counsel. And all are being paid (Continued)


-16-

For all of these reasons, it is ordered as follows:

1. The Government’s Motion to Dismiss (doc. 24) is granted;

2. The Emergency Motion and Petition (doc. 1) is dismissed without prejudice for

lack of jurisdiction and/or a private right of action; and

3. A separate judgment will be entered.

DONE and ORDERED this 17th day of February, 2012.

s/ WILLIAM H. STEELE CHIEF UNITED STATES DISTRICT JUDGE

their full wages and benefits through their Rule 15 depositions or the end of March 2012 to allow sufficient time for their participation as material witnesses to the criminal case to be concluded (unless of course they become the subject of criminal complaints or indictments in the interim, as has occurred with respect to Chief Engineer La Forgia). The point is that these crew members’ rights and interests are being fully protected today, and there is no discernible need for judicial intervention in redundant civil proceedings to safeguard them further.


"1D\AO 91 (Rev. 5/85) Cr

United States District CourtALABAMASOUTHERN DISTRICT OF

UNITED STATES OF AMERICA

v.

VITO LA FORGIA

CRIMINAL COMPLAINT

CASENUMBER: / A -o ot/- I

l, the undersigned complainant being duly sworn state the following is true and correct to the best of my

knowledge and belief. On or about Januarv 25, 2012, in Mobile County, in the Southern District of Alabama, the

defendant did.

Provide False Statements to United States Coast Guard Personnel.

in violation of Title 18 United States Code, Section(s) 1519.

I further state that I am a Special Aeent Christopher Whitmarsh with the Coast Guard kivestieative Service and that

this complaint is based on the following facts:

See Attached Affidavit hereby incorporated by reference as if fully stated herein.

Continued on the attached sheet and made a part hereof: X v", n

Signature of ComplainantSA Christopher Whitmarsh, Coast Guard Investigative Service

No

Sworn to before me and subscribed in my presence,

Februarv 9- 2012Date

Sonja F. BivinsUNITED STATES MAGISTRATE JUDGEName & Title of Judicial Officer

At Mobile. AlabamaCity and State

Case 1:12-mj-00014-B Document 1 Filed 02/09/12 Page 1 of 10

fi00_

AFFIDAVIT IN SUPPORT OF CRIMINAL COMPLAINT AND APPLICATION FORARREST WARRANT

I, Christopher R. Whitmarsh, Special Agent, Coast Guard Investigative Service,

("CGIS"), having been duly sworn, depose and state as follows:

INTRODUCTION

1. I am a Federal Agent, authorized to investigate violations of laws of the United

States, and I am a law enforcement officer with the authority to execute arrest and search

warrants issued under the authority of the United States.

2. I have been a Special Agent ("SA") with CGIS since October 2009. I am a

graduate of the Federal Law Enforcement Training Center, Criminal Investigator Training

Program and the Special Agent Basic Training Program. As a SA with CGIS, I have participated

in numerous criminal investigations of individuals who are in violation of statutes relating to the

laws of the United States and Code of Federal Regulations. Additionally, I have over ten years

of active duty service in the United States Coast Guard ("USCG"), which includes multiple tours

of duty as a certified USCG Boarding Officer. As a USCG Boarding Offrcer, I conducted or

participated in hundreds of maritime law enforcement boardings.

3. The information set forth in this Affrdavit is based upon my personal knowledge

and the personal knowledge of other CGIS SA's, conversations with USCG vessel inspectors and

pollution investigators from USCG Sector Mobile, Mobile, AL, who participated in the Port

State Control inspection of the Motor Vessel ("lU/V") BOTTIGLIERI CHALLENGER in the

Port of Mobile on or about January 25,2012, my review of the evidence collected from the M/V

BOTTIGLIEzu CHALLENGER during the inspection, and the statements of certain

crewmembers. The information set forth herein is submitted solely for the purposes of


establishing probable cause and does not reflect each and every fact learned during the course of

the investigation.

4. This Affrdavit is being submitted in support of a criminal complaint and arrest

war-rant for Vito La Forgia (DOB 03l0lll957,Italy Passport #AA0120265), Chief Engineer of

the M/V BOTTIGLIEzu CHALLENGER, on grounds that he violated Title 18, United States

Code, Section 1519, by knowingly altering, destroying, mutilating, concealing, covering up,

falsiffing, and making a false entry in any record, document, or tangible object, to wit: an Oil

Record Book, with the intent to impede, obstruct, or influence the investigation or proper

administration of any matter within the jurisdiction of any department or agency of the United

States.

5. The M/V BOTTIGLIERI CHALLENGER was a 50,321gross ton ocean-going

bulk carrier vessel, registered under the flag administration of Italy and bearing the International

Maritime Organization number 9426063. The M/V BOTTIGLIERI CHALLENGER is owned

and operated by Giuseppe Bottiglieri Shipping Company S.p.A., an Italian company with offices

at 80133 Napoli, PiazzaBovio, 8, Italy. Since at least 2010,the \zIlV BOTTIGLIERI

CHALLENGER has been engaged in international commercial maritime operations, including

the transportation of cargo to and from ports in the United States of America.

6. The M/V BOTTIGLIERI CHALLENGER had an Engine Department headed by

a Chief Engineer, assisted by a Second Engineer. The Chief Engineer is the highest ranking

officer in the Engine Department. The Chief and Second Engineers are assisted by laborers,

including a Third Engineer, Fourth Engineer, Electrician, Fitter and Oiler. Vito La Forgia served

as Chief Engineer of the M/V BOTTIGLIEzu CHALLENGER fromNovember 23,2011, until


present, including during the most recent voyage to Mobile, and reported directly to the Master

of the vessel.

7. As the Chief Engineer, Vito La Forgia had overall responsibility for the operation

of the Engine Department, including the management of machinery space operations (i.e., tank-

to-tank transfers, disposal of oil residue, discharge overboard or disposal otherwise of bilge

waste that accumulated in machinery spaces), formulation and implementation of Engine

Department procedures, and verification that all systems, including, but not limited to, the Oily

Water Separator ("OWS"), were functioning and operated properly. In addition to these duties,

as Chief Engineer, Vito La Forgia was responsible for maintaining the ship's Oil Record Book,

a required log regularly inspected by the Coast Guard, and responsible for recording any

discharges or transfers of waste from machinery spaces from the M/V BOTTIGLIERI

CHALLENGER inthe ship's Oil Record Book.

LEGAL FRAMEWORK

8. The United States is part of an international regime that regulates discharges of oil

from vessels at sea known as the International Convention for the Prevention of Pollution from

Ships, as modified by the Protocol of 1978 (the "MARPOL Protocol"). The MARPOL Protocol

was enacted into United States law by the Act to Prevent Pollution from Ships ("APPS"), 33

U.S.C. $ 1901, et seq. The regulations promulgated under APPS apply to all commercial vessels

over 400 gross tons operating in United States waters or while at a port or terminal under the

jurisdiction of the United States, including vessels operating under the authority of a country

other than the United States. 33 C.F.R. $ 151.09(a)(5). All crimes alleged in this Affrdavit took

place within the jurisdiction of the United States and, pursuant to 18 U.S.C. $ 3238, within the

venue of the United States District Court for the Southern District of Alabama.


9. On large bulk carrier vessels, such as the MA/ BOTTIGLIERI CHALLENGER,

bilge waste accumulates in bilge wells, located in the bottommost part of the vessel.

Periodically, this waste is pumped into a bilge holding tank. Bilge waste consists of water

originating from spills and leaks from piping, tanks, and other engine room machinery. This

waste may be contaminated with oil, oil residue, lubrication fluids, and other liquids that leak or

drip from engines or pipes and hoses that run throughout the ship. In order to maintain bilges at

safe levels, bilge tanks and wells must be periodically emptied. This can be done in one of two

ways: (1) bilge waste can be discharged ashore to a waste reception facility or, (2) it may be

discharged overboard after being processed through a properly functioning OWS.

10. MARPOL Annex I established international standards governing the treatment

and disposal of oily mixtures generated from the machinery spaces of a vessel. Under

MARPOL, machinery space waste may be discharged overboard into the ocean only if it does

not exceed fifteen (15) parts per million ('?pm") of oil and the ship has in operation required

pollution prevention equipment, to include oil filtering equipment an alarm and an automatic

stopping device known as an OWS and Oil Content Monitor to prevent the discharge of a

mixture containing more than l5 ppm of oil, the legally permitted concentration of oil.

11. Consistent with the requirements contained in the MARPOL Protocol, APPS

regulations require that a non-oil tanker ship of 400 gross tons and above maintain an Oil Record

Book ("ORB") in which all disposals of oil residue and the discharge overboard or disposal

otherwise of bilge waste and sludge that have accumulated in the machinery spaces must be

recorded. 33 C.F.R. $ 151.25(d). Specifically, discharges of bilge waste, sludge, and oily

mixtures must be fully recorded, without delay, in the ORB by the person in charge of the

operations. Id. The ORB also must contain entries concerning any emergency, accidental, or


other exceptional discharges of oil or mixtures. 33 C.F.R. $ 151.25(g). The ORB must be

maintained onboard the vessel for not fewer than three years. and be readilv available for

inspectionatallreasonabletimes. 33 C.F.R. $ 151.25. i

12. The USCG, an agency of the United States Department of Homeland Security, is

charged with enforcing the laws of the United States and is empowered under 14 U.S.C. g 89(a)

to board vessels and conduct inspections and investigations of potential violations of

international and United States law, including the MARPOL Protocol and APPS. In conducting

inspections, commonly known as Port State Control ("PSC") inspections, USCG personnel rely

on the statements of the vessel's crew and documents, including information contained in the

ORB. The USCG is specifically authorized to examine the vessel's ORB to determine, among

other things, whether the vessel has operable pollution prevention equipment and appropriate

procedures, whether it poses any danger to United States' ports and waters, and whether the

vessel has discharged any machinery space waste in violation of the MARPOL Protocol, APPS,

or any applicable federal regulations. 33 C.F.R. $ 151.23(a)(3) and (c). If the USCG finds

evidence that a vessel is not in substantial compliance with the MARPOL Protocol or APPS, the

USCG is empowered to deny a vessel's entry into a United States' port or detain the vessel until

it is determined that the vessel does not present an unreasonable threat to the marine

environment. 33 C.F.R. $ 151.07(b) and 151.23(b).

THE INVESTIGATION AND CRIMINAL OFFENSE

13. On or about January 24,2012, the M/V BOTTIGLIERI CHALLENGER docked

in the port of Mobile, AL, to offload bulk steel. On that date, the Chief Engineer was Vito La

Forgia.


14. On January 25,2012, your affiant learned from USCG Sector Mobile, AL, that

Engine Department crew members of the M/V BOTTIGLIEzu CHALLENGER reported to the

USCG that some members of the Engine Department had been ordered by Vito La Forgia to

discharge machinery space waste overboard without the use of pollution prevention equipment,

such as an OWS. The engine room crew members making the report described that the waste

discharges were made with the use of a "magic pipe".l The engine room crew members making

the report alleged that Vito La Forgia directed the engine room crew to discharge machinery

space waste from the M/V BOTTIGLIERI CHALLENGER directly into the sea without the use

of the vessel's OWS on approximately six (6) occasions between December 2011 and January

20t2.

15. On January 25,2012, USCG personnel from Sector Mobile, Mobile, AL,

conducted a Port State Control Examination of the M/V BOTTIGLIERI CHALLENGER,

pursuant to 14 U.S.C. $ 89(a). At their request, I accompanied USCG personnel on board to

assist with their examination and inspection. During the inspection, multiple Engine Department

crew members confirmed to USCG personnel the existence of a "magic pipe" and the unlawful

discharge of machinery space waste. The crew members also informed USCG personnel that

Vito La Forgia had ordered that apipe flange be fabricated specifically for use with the "magic

pipe" in order to transfer the waste from one tank to another and to then discharge that waste

directly overboard through the vessel's general service piping, rather than through the required

pollution prevention equipment, such as the OWS. Additionally, one Engine Department crew

member showed inspectors and investigators where the "magic pipe" and flange were stored.

I "Magic pipe" is a reference in shipping to a pipe or connection that allows a vessel to by-pass environmentalcompliance equipment, like the oily water separator, discharging untreated oily water, waste oil, and sludge into theocean in violation ofprotocol, treaty, law and regulation.


The Engine Department crew members also demonstrated to the USCG personnel, including

your affiant, how the "magic pipe" was configured and how it was operated. They finther

explained that at Vito La Forgia's direction and with his knowledge, Engine Department crew

members, using the "magic pipe," transferred waste from the vessel's sludge tank into one of the

vessel's bilge holding tanks. From the bilge holding tank, and also at Vito La Forgia's direction,

the engine room crew used the general service pump to pump the machinery space waste from

the bilge holding tank directly overboard through the general service piping system, without the

use of the OWS.

16. During the inspection of the MA/ BOTTIGLIERI CHALLENGER, USCG

inspectors obtained written statements from several of the ship's crewlnen who worked in the

Engine Department and your affiant has reviewed each statement. The following is a sunmary

of some of their oral and written statements:

a. Engine Department crew member'oA" was ordered by the Chief Engineer

(ClE), Vito La Forgia to order Engine Department crew member "C" to drain down the

Purifier Sludge Tank to the Bilge Tank by connection to the Sludge Pump and to pump

the Bilge Tank overboard using the General Service Pump.

b. Engine Department crew member "B" stated that he heard Engine

Department crew member "A" relay the C/E's order to Engine Department crew member

"C" and Engine Department crew member "D" to pump machinery space waste directly

overboard on December 19,27, and3l,2011 as well as January 9,12, and 13, 2012.

Engine Department crew member "B" personally witnessed the aforementioned

discharges of machinery space waste overboard. Engine Department crew member "B"

also stated that the C/E ordered Engine Department crew member "E" to fabricate a


flange with a valve to be used in the connection of the "magic pipe." Engine Department

crew member "B" learned of this order directly from Engine Department crew member

,,8".

c. Engine Department crew member "D" stated he was ordered to assist

Engine Department crew member "C" in pumping the machinery space waste from the

Bilge Tank overboard. Engine Department crew member "D" complied with the order.

d. Engine Department crew member "F" stated that he heard the C/E order

Engine Department crew member "C" to pump the machinery space waste from the Bilge

Tank overboard. Engine Department crew member "F" personally witnessed the use of

the "magic pipe."

17. On January 25,2012, your affiant spoke to USCG Inspectors who reviewed ORB

entries from the previous six months in conjunction with tank sounding logs and the information

provided by the engine room crew (as described in Paragraph 16). USCG inspectors reported

that between December 20ll and January 2012, the ORB did not contain any entries recording

the discharge of waste from the bilge holding tank directly to the sea. In addition, the ORB did

not contain any entries reflecting transfers of waste from the vessel's sludge tank to a bilge

holding tank. Based on my training and experience, as well as conversations with USCG

Inspectors, all overboard discharges of bilge waste water and certain internal transfers of oil and

oily waste are required to be logged in the ORB pursuant to the MARPOL Protocol and APPS

(33 c.F.R. $ 1s1(d).

18. I have reviewed a copy of the ORB that was onboard the M/V BOTTIGLIERI

CHALLENGER during the USCG Port State Control Inspection conducted on Mobile, AL, on


Ianuary 25,2012. The ORB does not contain any entries reflecting direct discharges overboard

made without the use of required pollution prevention equipment.

19. Based upon the forgoing, there is probable cause to believe that Chief Engineer

Vito La Forgia has knowingly altered, destroyed, mutilated, concealed, covered up, falsified, and

made a false entry in any record, document, or tangible object, to wit: an oil record book, with

the intent to impede, obstruct, or influence the investigation or proper administration of any

matter within the jurisdiction of any department or agency of the United States by failing to

maintain an accurate ORB, in violation of 18 U.S.C. $ 1519.

Subscribed and sworn before me this 7/L day of February,2012

Christopher R. WhitmarshU.S. Coast Guard Investisative Service


Documents

IN THE UNITED STATES DISTRICT COURT FOR … THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN ... ... United States