01 NOV 2006
On 18th August 2006 the United States Court of Appeals for the Third Circuit issued its decision in the case of United States of America v. Noel Abrogar.1 This was the first time an appellate court has considered the sentence of a foreign seaman convicted of violations of the Act to Prevent Pollution from Ships (APPS), the United States’ version of the MARPOL Convention.
Mr Abrogar, a citizen of the Philippines, served as chief engineer aboard the MAGELLAN PHOENIX, a Panamanian-flag vessel. Mr Abrogar admitted by plea agreement that he knew that those under his command had on occasion discharged oily water direct to the sea and he admitted he made false entries in the vessel oil record book to conceal the violations. Following the plea agreement a district court judge sentenced Mr Abrogar to serve one year and a day in federal prison for failure to maintain an accurate oil record book, a crime under APPS.
Those convicted in the federal courts of the United States are sentenced to fines and imprisonment according to Federal Sentencing Guidelines that assign points to certain types of conduct for the purpose of guiding the sentencing judges. Here the conduct that provided enhancement was “the ongoing, continuous or repetitive discharge, release or emission of a pollutant into the environment”.
Mr Abrogar’s counsel appealed the sentence on the ground that the district court had improperly enhanced the criminal penalty based on government’s assertion that a six-point enhancement should be applied for the acts of discharge that had occurred in international waters. Mr Abrogar argued on appeal that the enhancement should not be applied since the discharges, while clearly MARPOL violations, were not violations of US law.
In analysing the scope of MARPOL and APPS, the court found that Congress did not make every violation of MARPOL by every person a crime under US law. To the contrary, under APPS “Congress and the Coast Guard created criminal liability for foreign vessels and personnel only for those substantive violations of MARPOL that occur in US ports or waters. Stated differently, a MARPOL violation is only an offence under US law if that violation occurs within the boundaries of US waters or within a US port.”
The Third Circuit held that the district court could not consider the MARPOL violations that occurred outside US waters in its sentence calculation because these were not offences under US law and the acts were not conduct relevant to Mr Abrogar’s failure to maintain the oil record book while in US waters. Hence the court determined that the sentence as imposed was too harsh and sent the case back to the district court for re-sentencing. It should, however, be noted that implied in the court’s ruling is the recognition that, as soon as a foreign-flagged vessel with a faulty Oil Record Book crosses into US waters, an APPS violation has occurred, even though the entries were made outside US waters.
The decision is important to seamen charged with or facing charges in the US for MARPOL violations. The decision must be followed by the district courts in the Third Circuit and is persuasive authority for the other federal courts.2 The Third Circuit decision should not be read as implying that seamen and non-US flag shipowners can avoid penalties simply by correctly recording illegal discharges in the oil record book.3 Flag states do have jurisdiction to punish MARPOL violations in international waters and are increasingly likely to impose hefty fines for deliberate discharges.