Gard News 189, February/April 2008
01 FEB 2008
The United States Coast Guard (USCG) has issued a formal policy on voluntary disclosure which applies to MARPOL violations that may result in prosecution of owners and operators of foreign flag vessels in the United States. The policy is similar to existing policies of other US government agencies, including the US Justice Department, in describing the factors that will be considered in evaluating a violation for possible criminal investigation or prosecution. These policies require that companies have in place a compliance management system to prevent, detect and correct violations of environmental regulations. The “Shipping Industry Guidance on Environmental Compliance”, published by ICS/ISF,1 would appear to address all of the requirements for a compliance management system as contemplated by the USCG policy.
If a company promptly and voluntarily discloses a violation to the USCG discovered within the company’s environmental compliance plan, including ship audits, and the disclosure otherwise meets the requirement of the USCG policy, the USCG may exercise discretion not to recommend to the US Justice Department prosecution of the company. The policy does not apply if there is a pattern of prior violations, or if the violation would likely have been discovered by the USCG. The full policy document can be found at www.uscg.mil/foia/docs/CH-4%20Appendix%20V.pdf.
Recall that under US law foreign flag shipowners and operators can be and often are prosecuted for entry into US waters with a false oil record book that conceals discharges of oily wastes that have taken place outside US waters. Discharges in violation of MARPOL in international waters are violations that are subject to the law of the flag state but the United States does not have jurisdiction to prosecute foreign flag operators for the discharge itself because the vessels were outside US waters at the time of the discharge. According to the “Industry Guidance on Environmental Compliance”, “non-compliance with MARPOL regulations should be reported to the vessel’s flag administration. In the event of the discovery of evidence of intentional discharges of waste, the flag administration must be notified immediately and a request for an investigation should be initiated”.
If the vessel trades to the United States, the vessel owner or operator may, in addition to the flag state, also consider reporting the discovery and the correction of any false entries in the oil record book to the USCG in order to comply with the voluntary disclosure policy. In deciding whether to report to the USCG, prudence suggests foreign flag owners and operators should seek immediate legal advice from a lawyer familiar with the USCG and Justice Department policy guidelines and MARPOL criminal prosecutions in general.