Gard News 192, November 2008/January 2009
01 NOV 2008
|US law – Oil record book violations|
The district court had determined that criminal prosecution under the US Act to Prevent Pollution from Ships (APPS) was prohibited “because the government has not charged defendants with an act of pollution in US waters”.2 The court noted that the APPS provides that enforcement of its provisions must be “in accordance with international law” and that the United Nations Convention on the Law of the Sea (UNCLOS) provides for the flag state to take action with respect to acts of pollution committed on the high seas.
In reversing the district court, the Fifth Circuit Court of Appeals took issue with the lower court’s conclusion that the violations which were being prosecuted had occurred outside US territorial waters: “In contrast to the district court’s characterisation of the oil record book offences, we read the indictment to allege eight knowing failures to maintain an oil record book that each occurred entirely within the ports of the United States.”3 According to the court, the violations could be said to have occurred in the US, since the requirement to maintain an oil record book imposes “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”. Having established that the violations were committed “in port”, the court then concluded that prosecution would not violate international law because “[a] sovereign nation has exclusive jurisdiction to punish offences against its laws committed within its borders, unless it expressly or impliedly consents to surrender its jurisdiction”. Nor, according to the court, had Congress intended to limit the state’s traditional authority to prosecute violations committed by foreign-flagged vessels: “Far from signaling an abdication of this traditional authority, the APPS indicates congressional willingness to criminalise knowing violations of MARPOL, the APPS, and APPS regulations committed by foreign-flagged ships while in United States’ ports and navigable waters”.
The decision of the district court had been touted as an important victory for vessel owners and operators as it was thought that it would end criminal prosecutions resulting from the presentation of false oil record books which have long troubled shipowners trading to the US. However, two other district courts subsequently rejected the approach taken by the district court in this case.4 With this latest decision from the Fifth Circuit Court of Appeals, the US Department of Justice’s long- standing contention that an APPS violation occurs when a ship calls on a US port and presents an oil record book with false or inaccurate entries to a US government official has been vindicated. While the decision of the Court of Appeals is binding only on courts within the jurisdiction of the Fifth Circuit (which includes Texas and Louisiana), this court is highly regarded for its maritime jurisprudence and it is anticipated that the decision will be applied nationwide in the remaining circuits.
Penalties may increase