TABLE OF CONTENTS I. Introduction 382 II. Applicable Internation and Domestic Law 384 A. MARPOL 384 B. APPS 385 C. Vessel Requirements 387 1. Oil Record Book 387 2. Oily Water Separator 387 3. IOPP Certificate 388 III. Coast Guard Inspections 389 IV. Relevant Cases 391 A. United States v. Royal Caribbean Cruises, Ltd 391 B. United States v. Jho 393 C. United States v. Ionia Management SA 394 V. Maintaining the Oil Record Book 397 A. United States v. Fafalios 397 B. Post Fafalios 402 VI. Discussion 403 A. Alternative Enforcement 404 VII. Conclusion 406 I. INTRODUCTION
Envision being employed as the Chief Engineer on a four-hundred-ton cargo vessel. The chief engineer's responsibilities include supervising other engineers and crewmembers in the engine room as well as making entries into the vessel's oil record book. The oil record book is essentially a log book where any movement or disposal of oil or oily waste onboard the vessel is recorded. The vessel is traveling to the United States and is several weeks from arriving at its port of destination. Currently the vessel is in international waters on the high seas, hundreds of miles from the United States. During the nightly rounds and inspections, the bilge water (1) level appears to be nearing a dangerously high level. A decision must be made: Is there enough time to filter the oily water properly through the filtration equipment before discharging it? Taking the time to filter the oil out of the bilge water could take several hours. The bilge water could possibly damage the vessel's machinery and equipment beyond repair if it is not disposed of in a timely manner. The only option is to simply discharge the unfiltered oily bilge water directly overboard before any damage can occur. Fearing there is insufficient time to process the bilge water through the oily water filtering system, as the chief engineer, you order the lower level engineers to pump the water directly overboard. This discharge is an act of oil pollution in violation of several international conventions. (2) The next decision that must be made is perhaps the most crucial one. Should you, as the chief engineer, record the illegal discharge in the vessel's oil record book and risk potential fines and penalties or try to conceal the illegal action and not record it in the vessel's oil record book?
This scenario is similar to the situation that arose in December 2013, when Matthaios Fafalios (a Greek citizen who has worked on merchant vessels for over forty years) was employed as the chief engineer onboard a merchant cargo vessel, the M/V TRIDENT NAVIGATOR, registered under the flag of the Marshall Islands. (3) One day, Fafalios noticed the bilge tank was almost full, feared the bilge water would damage the engine before it could be processed through the oily water separator, and discharged the oily bilge water directly into the ocean while the vessel was in international waters. (4) He decided not to record the illegal oily discharge in the oil record book. When the vessel arrived at port in New Orleans the United States Coast Guard was notified of the discharge by a "whistleblower," a crewmember on board the vessel. (5) After the Coast Guard conducted an inspection, it was determined that Fafalios violated international pollution conventions as well as several domestic laws. (6)
This comment will explore the history of antipollution legislation for the shipping industry, specifically the utilization of the oil record book in oil pollution detection and enforcement. This comment will also analyze the decision in United States v. Fafalios, concerning the ultimate responsibility of maintaining the oil record book and discuss alternative methods of enforcement for oil pollution violations.
APPLICABLE INTERNATION AND DOMESTIC LAW
In order to address the serious issue of marine pollution, an international conference was held in 1973, which resulted in the creation of the International Convention for the Prevention of Pollution from Ships (universally known as MARPOL). (7) MARPOL's ultimate goal is "to achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances" as well as to minimize accidental discharges. (8) The original MARPOL Convention is said to be "the first ever comprehensive antipollution convention" with the main focus on preventing oil pollution. (9) The convention was later amended by the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships. (10) At the time the Protocol was established, the 1973 MARPOL Convention did not have sufficient signatories for its ratification and therefore had not yet taken effect. (11) The Protocol of 1978 incorporated into it the regulations from the 1973 MARPOL Convention. (12) Together the two treaties are collectively known as MARPOL 73/78. (13)
MARPOL consists of six annexes, which address the regulations for preventing pollution from oil, noxious liquid substances, harmful substances in package form, sewage, garbage, and air. (14) Annex I: Regulations for the Prevention of Pollution by Oil and Annex II: Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk were put into effect along with the 1978 Protocol and are considered mandatory annexes while Annexes III to VI are voluntary. (15)
The United States Senate ratified MARPOL under President Jimmy Carter in 1980. (16) MARPOL is a non-self-executing treaty and therefore not enforceable without each participating nation first enacting appropriate enforcement legislation. (17) Each party to MARPOL agrees to "give effect" to it by implementing sanctions for violations of its provisions. (18) Congress codified MARPOL by enacting the Act to Prevent Pollution from Ships in 1980. (19)
The Act to Prevent Pollution from Ships ("APPS") is applicable to all vessels within the territorial sea of the United States including all United States flagged vessels. (20) APPS authorizes the U.S. Coast Guard to promulgate necessary or desired regulations to ensure compliance with MARPOL. (21) The Coast Guard's implementing regulations contain requirements that are practically identical to those contained in MARPOL.
APPS grants the Coast Guard authority to board any vessel located in the navigable waters of the United States or its exclusive economic zone in order to enforce the provisions of MARPOL Annex I. (22) The navigable waters of the United States include the countries' internal waters as well as the territorial sea, which extends twelve nautical miles off the coast; and the exclusive economic zone, (also called the EEZ) extends two hundred nautical miles from the territorial sea. (23) Therefore, the authority to board vessels essentially extends 212 nautical miles from the coast of the United States. The Coast Guard regulations also authorize the Coast Guard to conduct inspections on any vessel while that vessel is at a United States port. (24) These inspections are to ensure compliance with MARPOL/APPS and to determine if a vessel has been illegally discharging oil. (25)
APPS provides that a knowing violation of MARPOL is considered a Class D felony and violators, including the corporate owner, can face both criminal penalties and civil liability. (26) Liability extends to corporate vessel owners through vicarious liability, under the theory of respondeat superior, as long as the crew is found to have acted within the scope of their employment. (27) Although the doctrine of respondeat superior began in tort law, it is now commonly used to hold corporations liable in other areas of law as well, including holding corporations criminally liable for crimes committed by their employees within the scope of employment. (28) Further sanctions provided by APPS for non-compliance include detaining the vessel in port by refusing or revoking a vessel's clearance through U.S. Customs and Border Protection. (29) A vessel's clearance may be granted or reinstated by the vessel owner posting a bond or entering into a surety agreement that is satisfactory to the Coast Guard. (30) Bond and surety agreements typically range from $500,000 to $1.5 million. (31)
Oil Record Book
MARPOL Annex I specifies the requirements of an Oil Record Book ("ORB") by vessels of 400 gross tons and above, in which any accidental or operational discharges of oil must be recorded without delay. (32) Accidental or exceptional discharges can include those "resulting from damage to a ship or its equipment." (33) Operational discharges occur from ballasting or the cleaning of oil fuel tanks, as well as oily bilge water which has accumulated in machinery spaces. (34) Ballasting is when seawater is added to the vessel's cargo tank to add stability and weight to the vessel after discharging its cargo. (30) The added seawater mixes with oil residue from the cargo tank's walls and must be properly disposed of through a port waste reception facility. (36) Annex I further requires that the oil record book "shall be signed by the officer or officers in charge of the operations concerned and each completed page shall be signed by the master of the ship." (37) In every oil record book on the bottom of each log page is a signature line for the "master signature." The oil record books are to be readily available for inspection and required to be kept for a period of three years. (38) Appendix III of Annex I provides a sample format of an oil record book. (39)
Oily Water Separator
Vessels are also required to have an oily water separator, which is a piece of equipment that processes and filters dirty bilge water to remove the oil. (40) Additionally, an oil discharge monitoring and control system, otherwise known as an Oil Content Meter helps to ensure any discharge does not contain an oil concentration higher than fifteen parts per million. (41) Fifteen parts of oil per million is essentially...