Proceedings Of The Marine

SPR 2013

Proceedings magazine is a communication tool for the Coast Guard's Marine Safety & Security Council. Each quarterly magazine focuses on a specific theme of interest to the marine industry.

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argued that even if their vessels held inaccurate oil record books, if the inaccurate entries were made outside of U.S. jurisdiction then there could be no failure to "maintain" within the navigable waters of the United States. The courts disagreed. The resulting decisions established the principle that the criminal violation of 33 U.S.C. 1908(a) and 33 C.F.R. Part 151.25 is the knowing failure to maintain an accurate oil record book within the navigable waters of the United States. It does not matter where the vessel was located when the false entry was made in the oil record book or when a required entry was omitted from the book.13 The requirement for vessels to maintain an oil record book is one part of a broad international and national regulatory regime to combat vessel-source pollution. The specific regulation, promulgated through the notice-and-comment rulemaking process, helps the Coast Guard enforce federal maritime pollution laws through the solidifying doctrines of port state control and port state jurisdiction. SigniÀcantly, the federal courts have "Àlled in" the meaning of the word "maintain" in this regulation in such a way as to give effect to the Coast Guard's maritime stewardship mission. About the author: LCDR Brian McNamara has served in the Coast Guard for more than 12 years as a deck watch ofÀcer, law enforcement instructor, and attorney. He holds a Master of Laws in Admiralty and is a judge advocate. Endnotes: 1. Michael G. Chalos & Wayne A. Parker, The Criminalization of Maritime Accidents and MARPOL Violations in the United States, 23 U.S.F. Mar. L.J. 206 (2010-2011) and Bruce PasÀeld & Elise RindÁeisch, Finding the Magic Pipe: Do Seamen have Constitutional Rights When a U.S. Coast Guard Boarding Turns Criminal? 22 U.S.F. Mar. L.J. 23 (2009-2010). 2. Giuseppe Bottiglieri Shipping Co. S.P.A. v. U.S., 843 F.Supp.2d 1241 (S.D. Al. 2012). (Federal trial court denying shipping company's emergency petition for review of the Coast Guard's administration of the Act to Prevent Pollution from Ships.) 24 Proceedings Winter 2012 | Spring 2013 3. U.S. v. Coalition for Buzzards Bay, 644 F.3d 26 (1st Cir. 2011) (holding that the Coast Guard committed procedural error in the rulemaking process for a regulation governing navigation in Buzzards Bay). 4. International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 1983 U.N.T.S. 184 (entered into force Oct. 2, 1983); Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, Feb. 17, 1978, 1983 U.N.T.S. 62 (entered into force Oct. 2, 1983). 5. Ho-Sam, Port State Jurisdiction and Article 218 of the U.N. Convention on the Law of the Sea, 40 J. Mar. L. & Com. 291, 293-95 (2009) (describing MARPOL's role in the development of port state control and port state jurisdiction as international legal norms). 6. 33 U.S.C. § 1902(a) (2006). 7. 33 U.S.C. §1903(c)(1) (2006). 8. See generally 33 C.F.R. Part 151 Subpart A. 9. Pollution Prevention; Implementation of Outstanding MARPOL 73/78 Provisions, 48 Fed. Reg. 45704, 45708 (Oct. 6, 1983). 10. 14 U.S.C. §89(a) (2006). 11. See U.S. Coast Guard Marine Safety Manual, Volume V: Investigations and Enforcement, Part C, Chapter 1.D for a discussion of these factors. 12. U.S. v. Ionia Management S.A., 498 F.Supp.2d 477 (D.Conn. 2007), is one example of such a case. 13. The Fifth Circuit Court of Appeals summarized its interpretation of the APPS and the regulations by stating: [a]ccurate oil record books are necessary to carry out the goals of MARPOL and the APPS. If the record books did not have to be "maintained" while in the ports or navigable waters of the United States, then a foreign-Áagged vessel could avoid application of the record book requirements simply by falsifying all of its record book information just before entry into a port or navigable waters. If the oil record book requirements could be avoided in this manner, the Coast Guard's ability to conduct investigations against foreign-Áagged vessels would be severely hindered, and the regulation would allow polluters (and likely future polluters) to avoid detection. We refuse to conclude that by imposing limitations on the APPS's application to foreign-Áagged vessels Congress intended so obviously to frustrate the government's ability to enforce MARPOL's requirements. Instead, we read the requirement that an oil record book be "maintained" as imposing a duty upon a foreign-Áagged 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. U.S. v. Jho, 534 F.3d 398 (5th Cir. 2008). The Second Circuit relied on this principle in U.S. v. Ionia Management, 555 F.3d 303 (2nd Cir. 2009). The Third Circuit held that while the criminal offense is the failure to maintain the oil record book in U.S. waters, any improper discharge of oily water related to the improper log entries could not be considered a related offense for the purpose of enhancing the criminal conviction under the Federal Sentencing Guidelines. U.S. v. Abrogar, 459 F.3d 430, 437 (3rd Cir. 2006).

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