Should you be concerned about U.S. justice in a case of oil pollution?

This post was published in the March 30th 2009 issue of Canadian Sailings.

March 9, 2009, U.S. Department of Justice: “Chief Engineer Pleads Guilty to Concealing Vessel Pollution.”

March 10, 2009, U.S. Department of Justice: “Shipping Line Pays $1.4 Million for Environmental Crimes.”

Both headlines cover oil pollution from ships, committed outside U.S. waters, based on false oil record book entries.

The criminal charges laid by the U.S. Department of Justice in a case of oil pollution are not directly based on the pollution incident but on the fraudulent statements made, or oil record book (ORB) entries made, to hide the incident. A criminal act is committed when the ship’s ORB containing the fraudulent entries is presented to the U.S. Coast Guard (USCG) port state control officer.

The USCG has laid out the directives for its port state control officers for the inspection of oil pollution prevention equipment aboard ships. He is to go on board, check the documentation, verify the emergency response procedures and equipment, then proceed with the engine room inspection. He is encouraged to form an opinion on whether bilge filtering equipment is likely to perform as required on his impression of the ship’s engine room condition; i.e. based on oil leaks, disassembled equipment, etc. He is instructed to have the crew operate the equipment, which usually requires 15-20 minutes. He is to check that the influent is not diluted and visually verify the condition of the effluent.

If he suspects cheating or that the equipment cannot perform, he is directed to look for tell-tale signs of tampering, such as oil on discharge line shut-off valve stems, for loose bolts on discharge line connections, chipped paint on flanges, and other signs of recently reconnected bilge water processing lines.

Minor violations are considered errors on the notation in the international oil pollution prevention certificate – signatures missing on ORB entries. Most of these errors can be corrected either on the spot or in concert with the flag state.

Major violations are the inability of the crew to operate the bilge filtering system, or disassembled equipment. These major violations result in a detention until the deficiency is corrected. The potential criminal charges by the Department of Justice arise from fraudulent ORB entries, “magic hoses” for bypassing the bilge filtering equipment, false statements to the port state control officer, and such.

Under U.S. law, the fraudulent entries in the official record (the oil record book) represent false statements when it is presented to a port state control officer. It is this fraudulent statement that then becomes the basis for the criminal prosecution of the crew and the company.

The criminal prosecution of oil pollution incidents has frightened crews into not operating their oily water separators, worrying that operating the equipment is an auto­matic ticket for criminal prosecution. That is not quite the case, and the USCG actually provides some guidance on how a company can safeguard against criminal prosecution.

In its winter 2008-09 issue of Proceedings, the USCG outlines measures to improve MARPOL Annex I compliance for commercial vessel owners. It recommends creating an environmental compliance program (ECP), which includes a comprehensive system to verify MARPOL Annex I compliance. It suggests that the typical environmental management system (EMS) document incorporates policies and procedures, establishes third-party verification of performance and incorporates also non-regulatory practices.

In the same issue of Proceedings, two partners of Blank Rome LLP, a major Washington, D.C., law firm, talk the same language. They list the following elements for an effective ECP:

• High level management oversight;
• Defined shipboard responsibility;
• Auditing process;
• Technical requirements;
• Budget;
• Procedures to determine reasons for nonconformity.

They state that from a law enforcement perspective, the existence and adequacy of an ECP is viewed as a potentially mitigating factor in the exercise of ­prosecutorial discretion concerning the decision whether to file criminal charges against an organization.

Another Washington law firm, Holland & Knight, in its Alert of Feb. 10, states that although an effective ECP “could be useful in defeating a criminal charge at trial, and, under the U.S. Sentencing Guidelines for Organizations, such a program can help to substantially reduce the fine imposed after a conviction, the primary benefit of an effective program is its use in persuading Department of Justice prosecutors not to bring criminal charges in the first place.”

The lawyers state that numerous ECP models have been developed. They continue: “What is key, however, is tailoring the plan to a particular company’s operations and getting buy-in from all levels of the company, management and employees.”

The USCG “strongly encourages” owners to ensure that their vessels are in compliance with MARPOL Annex I prior to entering the waters of the United States, and states that its port state control officer will hold the vessel personnel accountable for infractions and will ensure that discrepancies are corrected.

So to the question posed in the column title: yes, you should be concerned about the U.S. Department of Justice’s approach in oil pollution matters. The fact is that if an ORB with fraudulent entries is presented to the USCG inspector and the fraud is discovered, the U.S. will proceed with criminal charges for defrauding the country, regardless of where the pollution occurred. Only the existence of an adequate ECP can shield management and the company from such criminal prosecution; but the intent of an ECP is to guide employees in compliant operation of oil pollution prevention equipment.