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Gard News 197, February/April 2010

First criminal prosecution against a vessel operator for invasive species legislation takes place in the US.

Plea agreement
On 30th September 2009 the US Justice Department and US Coast Guard (USCG) issued a press release to announce the plea agreement reached between the US Attorney and a major Greek ship management company, for environmental crimes committed by crewmen aboard the M/V THEOTOKOS.  The ship management company agreed to plead guilty as a corporation to five crimes:

1. Knowing failure to maintain an accurate Oil Record Book in violation of the Act to Prevent Pollution from Ships1 (the US version of the MARPOL treaty).
2. Knowingly carrying fuel that originated from fuel migration into the forepeak ballast tank in violation of the Act to Prevent Pollution from Ships.2
3. Knowingly concealing the fuel migration into the forepeak ballast tank during a USCG port state inspection, a crime under general US criminal law for providing false information to a government agency.3
4. Wilful and knowing failure to report a hazardous condition of a crack in the rudder stem, a violation of the Ports and Waterways Safety Act.4
5. Knowing failure to maintain accurate ballast water records in violation of the Nonindigenous Aquatic Nuisance Prevention and Control Act.5

One novel feature
It is well known in the shipping community that vessel operators can be prosecuted for coming into US ports with an Oil Record Book falsified to cover discharges of oily bilge waste in violation of  MARPOL.  The basis for prosecution of the company is vicarious criminal liability or "respondeat superior" liability for acts of crewmen committed within the scope of employment and for the benefit of the company.  The company is criminally responsible for the acts of those it employs despite the fact that the crewmen acted without the knowledge of the shipowner or manager and against company policy.  It is also well known that companies may be held vicariously liable for conduct of crew in hiding or misrepresenting material information during the course of a USCG inspection.  The novel feature of the ship management company case is the prosecution for violation of the Nonindigenous Aquatic Nuisance Prevention and Control Act.

According to Rear Admiral Mary E. Landry, Commander of the Eighth Coast Guard District, "[t]his case is historic in that it is the first prosecution under the Nonindigenous Aquatic Nuisance Prevention and Control Act. As a component of the Coast Guard's maritime stewardship mission [the USCG] are committed to the prevention and abatement of environmental crimes including those which may fall under the Nonindigenous Aquatic Nuisance Prevention and Control Act."

Inaccurate ballast water reporting
The agreed facts filed with the court with the plea agreement provide that the basis for the violation was submission of a knowingly inaccurate Ballast Water Reporting Form.  The Ballast Report did not reveal a quantity of oil in the forepeak ballast tank that had entered the tank via a crack between a fuel oil tank and the ballast tank.  The master knew of the crack and had been trying to decant the water to allow for cleaning of the ballast tank but did not disclose the fact to the USCG inspector.  Further, the Ballast Report did not show the ingress and egress of water into the aftpeak ballast tank from a crack in the rudder stem and did not show the pumping overboard of ballast water, which should have been reported as a ballast water exchange.

For the five violations, the ship management company agreed to pay a fine of USD 2.7 million and agreed, as a term of probation, that ships under its management would not enter US waters for a three-year period. 

The plea agreement must be submitted to a judge for approval and sentencing before it is effective.  

Lesson learned
This case demonstrates yet again the use of criminal law in areas that were in the past the subject of modest administrative penalties.  The lesson to be learned is that in the face of vessel non-compliance because of technical problems, it can be an extremely costly error to hide the problem from port state authorities by falsifying vessel records.  Rather, the crew should be encouraged to report the problem to the vessel operator so that proper repairs can be made.

1   33 USC Section 1908(a) and 33 CFR Section 151.25.
2   33 USC Section 1908(a) and Regulation 16(3) of MARPOL Protocol. 
3   18 USC  Section 1001(a)(1).
4   33 USC Section 1232(b)(1) and 33 CFR Section 160.215.
5   16 USC Section 4711(g)(2); 33 CFR Section 151.2045(a).