The United States authorities aggressively pursue suspected violations of MARPOL 73/78. George M. Chalos looks at the risks those less scrupulous shipowners are willing to take
Anyone violatiing MARPOL 73/78, as codified in the US Code as the Act for the Prevention of Pollution from Ships* is playing with fire. Over the past 20 years, the MARPOL initiative has resulted in payments in excess of US$500M in criminal fines and civil penalties collected from foreign-flagged vessel owners and operators. The US Coast Guard (USCG) historically has focused its investigative efforts on alleged engineroom waste-stream discharges, which have not been accurately recorded in the Oil Record Book - Part I (ORB – Part I).
These matters – often referred to as “magic pipe” cases – generally involve the manipulation and/or bypassing of the approved pollution prevention systems through the use of flexible hose(s) and/or portable pump(s) to allow for direct discharge into the sea.
These days, most USCG tanker inspections and examinations expand beyond the engineroom and routinely scrutinise deck operations. There is an increased focus on the contents of the Oil Record Book Part II (ORB Part II); a record which is required to be maintained by every oil tanker of 150 gross tonnage and above. Complete and accurate entries must be made without undue delay in the ORB Part II each time the vessel loads/unloads oil cargo, cargo tanks are washed, and/or when residues are disposed of.
Recently, there have been several serious criminal prosecutions of senior ship officers, as well as vicarious prosecutions of foreign-flagged vessel owners and operators, arising from the failure of shipboard personnel to accurately memorialise deck operations in the ORB Part II. Examples of the type of misconduct which has resulted in vessel detentions and criminal prosecutions include: the alleged use of portable pump(s) and flexible hose(s) to discharge tank washings directly overboard; cargo line drip tray connections which permit direct discharge overboard; and other arrangements suspected of ‘tricking’ oil discharge monitoring equipment (ODME).
The ODME is of particular interest to the USCG, as it is the deck equivalent of the oily water separator. This equipment is designed to monitor and control permissible quantities of oily water discharged legally into the sea and, under normal conditions, the ODME has automatic settings which should ensure smooth and efficient operation.
Highly trained USCG inspectors are on the lookout for, among other things, evidence of suspicious ODME tampering, including flooding sample lines with fresh water, changing data input numbers on the ODME computer, and/or switching and operating the ODME in manual mode.
The most basic, yet essential, advice a lawyer can give to any seafarer or company facing an expanded USCG MARPOL examination is ‘always be truthful and forthright in your dealings with the authorities and seek the advice of counsel as soon as practical’. It may well be in their best interests for a seafarer to ‘say nothing’ and invoke their Fifth Amendment Privilege against self-incrimination, so as to avoid allegations of obstruction of justice and/or lying to federal agents.
The Fifth Amendment of the United States Constitution provides, in pertinent part: “No person ... shall be compelled in any criminal case to be a witness against himself…” The Fifth Amendment Privilege against self-incrimination is not dependent upon the nature of the proceeding in which the testimony is sought. It is available in both civil and criminal proceedings and is applicable whenever a truthful answer might subject one’s self to criminal responsibility.
*(“APPS”), 33 U.S.C. § 1901 et seq. (i.e. – the US adaptation of MARPOL)
George M. Chalos is the principal of Chalos & Co, P.C.- International Law Firm; leading advocates in maritime and admiralty litigation. He has been engaged in the practice of maritime, admiralty and insurance law for approximately 20 years and is experienced in all facets of civil and criminal maritime matters. He has been counsel of record in over 1,100 civil and criminal maritime matters. Mr Chalos has extensive experience arbitrating matters before tribunals of the Society of Maritime Arbitrators and has conducted many court-ordered and private mediations.