Proceedings Of The Marine

SPR 2014

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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10 Proceedings Spring 2014 www.uscg.mil/proceedings issued an administrative order revoking the vessel's cer- tifcate of compliance and preventing entrance into the port of Corpus Christi, Texas. This was the frst time the Coast Guard asserted its authority granted under the Ports and Tanker Safety Act, an amendment to the Ports and Water- ways Safety Act (PWSA), against a tank vessel in violation of U.S. environmental statutes. 1 In addition to revoking the vessel's certifcate of compliance, the COTP required the owner and operating company to submit to an environmental compliance plan for a period of one year, as a condition of the vessel's re-entry. The vessel owner could seek port state control inspection for a certif- cate of compliance after three years, or after implementing a Coast Guard-approved environmental compliance plan with satisfactory audits for at least one year. If the company did not demonstrate compliance, the vessel would be barred for a period of three years. The Company Files Suit In response to these actions, the shipping company appealed the administrative order to the captain of the port, the dis- trict commander of the Eight Coast Guard District, and the commander of the Coast Guard Atlantic Area, in accordance with the agency's appeal regulations. Not satisfed with the responses, the company subsequently fled suit against the Department of Homeland Security, challenging the Coast Guard's authority under the Administrative Procedure Act to issue the administrative order barring entry and the con- ditions set for re-entry. The suit claimed that the Coast Guard's actions were arbitrary and capricious, and revoking the certificate of On May 4, 2010, U.S. Coast Guard port state control off- cers examined the Norwegian-fagged crude oil tank vessel Wilmina and then issued the vessel a certifcate of compli- ance (COC), based on review of the vessel's certifcates and limited tests of the pollution prevention equipment. The COC confrmed that the vessel had the necessary interna- tional certifcates required to operate in U.S. waters. However, at one point in the inspection process, offcers were handed a hard drive that contained video evidence showing the vessel's crew had bypassed the oily water sepa- rator by means of a bypass hose attached to an overboard discharge pipe. Upon a second, expanded vessel examina- tion, offcers found several inconsistencies corroborating the video evidence. APPS in Action One of a nation's fundamental border security responsi- bilities include foreign-fagged vessel inspection or exami- nation and prohibiting port entry to any vessels found in violation of domestic laws — a practice long established by customary and international law. Discharging unprocessed oily water violates the Interna- tional Convention to Prevent Pollution for Ships (MARPOL), an international treaty to which United States is a signatory. The Act to Prevent Pollution from Ships (APPS) implements MARPOL in U.S. federal law, making violations illegal. The captain of the port (COTP) determined that the actions violated APPS and asserted his authority in the Ports and Waterways Safety Act to bar the tank vessel, based on vio- lations of U.S. laws, regulations, or treaties. On May 21, he Not in My Port U.S. District Court upholds captain of the port authority. by LCDR MiMi Moon Deputy, Environmental Law Division U.S. Coast Guard Staff Judge Advocate Mr. BenjAMin DrisColl University of Pennsylvania law student Legal Issues Spring2014_FINAL.indd 10 3/21/14 11:13 AM

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