Vessel Pollution Prosecutions – A New Twist

By Vincent J. Foley- New York and John S. Irving- Washington of Holland & Knight
On July 15, 2009, the U.S. Department of Justice announced that the Captain and Chief Officer of a foreign vessel pled guilty in the Eastern District of Louisiana (New Orleans) to charges that included not only the Act to Prevent Pollution from Ships (APPS), False Statements and Obstruction of Justice; but also failure to notify the Coast Guard of hazardous conditions and charges related to presentation of false or incomplete ballast tank reports.

The case involved two primary issues: (1) a 24-inch outer-hull crack in the vessel’s rudder stem, which created a condition that adversely affected the safety and operation of the vessel; and (2) fuel oil in a ballast tank due to a leaking “deep” fuel tank in the forward part of the vessel.

For the first time, criminal charges were brought against a person for violation of the Non-Indigenous Aquatic Uses and Prevention Control Act 16. U.S.C. § 4711(g). The Chief Officer was charged under the Act because he presented a Ballast Report that did not record efforts by the crew to deal with contamination of a ballast tank by an adjacent leaking fuel tank. The Captain not only failed to report the condition to the Coast Guard, but caused oil-contaminated water to be discharged in an attempt to clean the ballast tank. Prior to arrival at a terminal in New Orleans, the Captain attempted to conceal the condition by ordering that a hose with a stopper at one end and partially filled with water be fitted to the ballast tank’s sounding tube in order to give Coast Guard inspectors the misimpression that the ballast tank was filled with clean water. Those actions led to charges for the failure to maintain an accurate oil record book (i.e., one that recorded the discharge of oil-contaminated water) and Obstruction of Justice.

In addition to an APPS violation and Obstruction of Justice – charges frequently seen in vessel pollution cases – the Captain was charged under the Ports and Waterways Safety Act (PWSA) with failing to notify the nearest U.S. Coast Guard Sector or Group Office that hazardous conditions existed aboard the vessel, namely the rudder stem crack and leak between the fuel and ballast tanks.

Ports and Waterways Safety Act
The PWSA provides civil and criminal penalties for violating the Act or regulations issued pursuant to the Act. 33 U.S.C. § 1232. Coast Guard regulations require the owner, agent, master, operator, or person in charge of a vessel to immediately notify the nearest Coast Guard Sector or Group Office whenever there is a hazardous condition aboard or caused by the vessel. 33 C.F.R. § 160.215. A willful and knowing violation is a felony punishable by less than ten but more than five years in prison. While not an issue in this case, it is worth noting that using a weapon or “engag[ing] in conduct that causes … fear of bodily injury” to Coast Guard officials enforcing the regulations is punishable by less than 25 but more than ten years in prison.

The charges against the Chief Officer involved his presentation to the Coast Guard of a false Ballast Report, which includes soundings and volumes of water in ballast tanks. The report contained false entries and omissions as to the level of liquid in the ballast tank at issue, the specific gravity of the liquid in the tank, and the hydrocarbon nature of the liquid. The Chief Officer was charged with Making False Statements and with violating the Non-Indigenous Aquatic Nuisance Prevention and Control Act.

Non-Indigenous Aquatic Nuisance Prevention and Control Act
The Non-Indigenous Aquatic Nuisance Prevention and Control Act provides civil and criminal penalties for violating regulations issued pursuant to the Act. 16 U.S.C. § 4711(g). Coast Guard regulations require the master, owner, operator or person in charge of a vessel to keep written records that include detailed ballast tank and water information, such as the capacity and volume of tanks, the origin of ballast water, and the date, location and volume of water discharged. 33 C.F.R. § 151.2045. A knowing violation is a felony punishable by less than ten but more than five years in prison.

The result in this case could have been avoided had the master and chief officer properly reported the unsafe conditions to the Coast Guard, discharged the oil/water mixture in the ballast tank in compliance with MARPOL, not rigged a hose to the ballast tank sounding tube in an effort to trick Coast Guard inspectors, and presented records that completely and accurately reflected onboard efforts to deal with the contaminated ballast tank. Vessel operators must be vigilant in enforcing their environmental compliance plans and requiring crew members to promptly notify authorities of unsafe conditions (such as a cracked rudder stem and contaminated ballast tank). It remains to be seen whether the vessel’s owners or operators will be held criminally liable for the acts of the vessel’s Captain and the Chief Officer – either based on direct knowledge of the events or through a theory of vicarious liability.

(Source: Holland & Knight)