A Practical Approach to Reduce MARPOL Enforcement Risks in the United States

Kierstan L. Carlson and Jeanne M. Grasso

Readers of Mainbrace know well that the United States has been aggressively enforcing compliance with MARPOL for decades. Often referred to as “magic pipe” cases, the U.S. Department of Justice (“DOJ”) has brought criminal MARPOL prosecutions against owners and operators of ships running the gamut from fishing vessels to bulkers, tankers, container ships, and cruise ships. These prosecutions have involved underlying violations of MARPOL Annex I (oil), but also Annex V (garbage) and more recently Annex VI (air emissions).

Criminal MARPOL cases are extraordinarily costly and disruptive to vessel owners/operators. Not only are significant fines levied against violators, but companies convicted of MARPOL violations suffer attendant reputational damage that can impact charter hire prospects and incur significant costs for paying wages, housing, and per diem to the crew members whom the government requires to remain in the United States for the duration of the criminal case. On top of that are the costs associated with a comprehensive Environmental Compliance Plan for the fleet, along with costs associated with a Third-Party Auditor and a Court-Appointed Monitor.

Unlike other areas of U.S. criminal enforcement, MARPOL prosecutions have continued at a steady pace, across administrations led by different political parties. This is due, in part, to the fact that the Act to Prevent Pollution from Ships (“APPS”), the U.S. statute that implemented MARPOL, is enforced by the U.S. Coast Guard (“USCG”), which is typically less affected by political change than other executive agencies responsible for criminal enforcement. Perhaps more importantly, APPS includes a whistleblower provision pursuant to which anyone who provides information to the USCG that leads to a conviction may be awarded up to 50 percent of the criminal penalty imposed under APPS. Potential awards incentivize seafarers to report misconduct to the USCG instead of to the company, even in cases where there is an open-reporting program. It also gives the USCG and DOJ a significant advantage, as they often receive photos and videos of the alleged improper conduct before their investigation even begins.

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Marine Casualty Investigations: Legal Standards

Zachary J. Wyatte

Without a doubt, shipping industry stakeholders should always strive to have zero days lost due to accidents. But, equally, the industry should also always be prepared to immediately respond to and investigate unfortunate events when they occur. In this regard, it is critical to understand the investigative process that sets in motion after a significant marine casualty occurs.

Our experience investigating and providing legal representation for clients following a marine casualty has shown that, despite decades of implementing international safety protocols, advancements in ship design, and an industry-wide focus and dedication to improved safety, marine casualties will continue to occur; maybe not as often, but they will happen. Simply put, following all the safety protocols put in place may not be enough to avoid a casualty. Indeed, vessels of all sizes, large and small, transiting the world’s oceans, subject themselves to influences beyond their control that create the inherent risk of a casualty occurring.

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Criminal Enforcement under the Biden Administration

Kierstan L. Carlson

We are nearly six months into the Biden administration and its civil and criminal enforcement policies are taking shape. Under the Trump administration, the government’s enforcement focus shifted away from white collar crimes and violations towards immigration, violent crimes, opioids, and the like. Environmental enforcement in particular dipped dramatically. Although the Biden administration has not formally announced enforcement priorities, it is expected to shift back and renew the government’s focus on corporations and certain white collar crimes. This likely will be true for the Department of Justice (“DOJ”) as well as at the agency level, as agency heads are expected to be given a high degree of independence and agencies to be empowered to pursue enforcement actions and refer serious cases to the DOJ. 

The Biden administration also has made some major policy changes with respect to environmental enforcement. Earlier this year, the Deputy Assistant Attorney General sent a memorandum to the heads of each section in the DOJ’s Environmental and Natural Resources Division, which includes the sections that bring civil and criminal maritime environmental cases referred to the DOJ by the U.S. Coast Guard (“USCG”) and the Environmental Protection Agency (“EPA”). The memorandum revoked nine policy directives that had been in place under the Trump administration. It also stated that the Biden administration will be focusing on climate change and environmental justice.

What does all of this mean for the maritime industry? There are a few key takeaways: 1) enforcement of MARPOL Annex I cases will continue and we may see an increased focus on MARPOL Annex VI and EPA emissions standards, as well as on ballast water; and 2) we also expect a continued focus on non-environmental enforcement areas that have long posed significant risks to the industry: sanctions, anti-corruption, anti-money laundering, and antitrust. This is not a complete list of the risks facing our very heavily regulated industry, but it captures the enforcement trends and what are, in our view, the most critical risks. 

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Seaman’s Manslaughter: An Arcane Statute Turned Present-Day Enforcement Risk

Jeanne M. Grasso and Kierstan L. Carlson

Owners and operators of ships calling on the United States know well that criminal prosecutions are now a regular occurrence in the maritime industry. Most relate to environmental violations and post-incident conduct like false statements and obstruction of justice. Recently, however, prosecutors also have used the Seaman’s Manslaughter Statute as an enforcement tool.

The statute allows for federal charges against vessel officers and corporate executives of the vessel owner or charterer if a death results from negligence aboard a vessel. Several high-profile casualties have clearly placed the statute back on the government’s radar and it is now an enforcement risk for passenger and cargo vessels alike.

The Statute

The Seaman’s Manslaughter Statute criminalizes negligence and inattention to duties by a captain, engineer, pilot, or other person employed on a vessel. Violations can result in up to 10 years’ imprisonment, a fine, or both. The statute stems from 19th century laws aimed at preventing deaths from fires on steamboats, which were designed to punish ship’s officers for negligent conduct. A similar focus exists today. Under the statute, vessel officers and shoreside employees may be liable for manslaughter if their negligent conduct causes a fatality. This is a “simple negligence” standard, meaning that the government need not prove the conduct was willful, knowing, or reckless.

However, a heightened, “gross negligence” standard applies for cases against executives of corporate vessel owners or charterers. There, the government must prove that the individual corporate executive: 1) had “control and management of the operation, equipment, or navigation” of the vessel; and 2) “knowingly or willfully caused or allowed” the negligent conduct that resulted in a death. 

Prosecutions through the 2000s

Few Seaman’s Manslaughter cases were brought before the 2000s. The most notable was the General Slocum disaster in 1904, where over 1,000 people died in a vessel fire in New York. The captain, corporate executives, and the vessel inspector were indicted when the investigation revealed serious violations of safety standards and false records covering up the deficiencies. This incident lead to major regulatory change and reform of the predecessor agency to the U.S. Coast Guard.

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Mainbrace Live: U.S. Maritime Litigation Trends

Blank Rome’s internationally recognized Maritime & International Trade practice group presents a new series of informative webinars covering hot topics in the shipping industry and key insights into 2021 and beyond. Sessions will cover:

    • Sanctions and international trade
    • Offshore wind developments
    • Shipping litigation
    • Maritime regulation
    • Ship finance
    • And more!

For the third webinar in our Mainbrace Live series, Blank Rome LLP attorneys William R. Bennett, IIILauren B. Wilgus, Jeremy A. Herschaft, Zachary J. Wyatte, and Noe S. Hamra presented “U.S. Maritime Litigation Trends” on Tuesday, May 18, 2021.

Bill, Lauren, Jeremy, Zach, and Noe discussed:

    • 1782: Purpose and criteria 
    • Judgment enforcement: Arrest, attachment, and more 
    • Timeline of a federal case: From complaint to trial, discovery, etc. 
    • Spill investigations: Practical “boots on the ground” information



    • Lauren B. Wilgus, Partner, Maritime Practice Group
    • Jeremy A. Herschaft, Partner, Maritime Practice Group
    • Zachary J. Wyatte, Associate, Maritime Practice Group
    • Noe S. Hamra, Associate, Maritime Practice Group

To watch a recording of this webinar, please go to the webinar on-demand registration page here.

Electronic Recordkeeping—The Maritime Industry, Including in the United States, Sails Forward

Jeanne M. Grasso and Dana S. Merkel


Long-awaited amendments to the International Convention for the Prevention of Pollution from Ships (“MARPOL”) entered into force on October 1, 2020, which expressly permit the use of electronic record books for certain MARPOL required logs. Although the United States reserved its decision regarding adoption of the amendments when they were approved by the International Maritime Organization (“IMO”) in May 2019, the United States ultimately accepted their adoption in accordance with the tacit acceptance procedure. Nonetheless, it is yet unclear how the amendments will be implemented in the United States or what additional security safeguards the United States may require. Bottom line, this is a significant and welcomed development.


Electronic record books have been the subject of much debate and consideration at the IMO and within the United States for a number of years. During MEPC 74 in May 2019, amendments were approved, revising MARPOL Annexes I, II, V, and VI to allow the use of electronic record books approved by the vessels’ Administration for the Oil Record Book (“ORB”), Cargo Record Book, Garbage Record Book, and Annex VI air pollution prevention recordkeeping requirements. In adopting the amendments, the IMO stated the use of electronic record books “should be encouraged as it may have many benefits for the retention of records by companies, crew, and officers.” These amendments entered into force on October 1, 2020, although a number of flag States believed the previous MARPOL language provided them with the discretion to allow the use of electronic record books and had already approved their use on vessels for some years. Even so, the permissibility of using electronic record books to meet MARPOL requirements is now clear.

Please click here for the full client alert.

The Maritime Industry: The DOJ FCPA Unit’s Next Port of Call

Carlos F. Ortiz, Mayling C. Blanco, and Alexandra Clark

The maritime industry, by its nature, involves the movement of goods and vessels across international borders, and requires routine interaction with government officials. Historically, many in the industry viewed bribery of these officials in many parts of the world as a “cost of doing business.” Increased cooperation between the U.S. government and foreign governments has led to intensive efforts to investigate and fight corruption across the globe. Recent actions by the U.S. Department of Justice (“DOJ”) and the U.S. Securities and Exchange Commission (“SEC”) in the maritime-related oil and gas industry make it clear that Foreign Corrupt Practices Act (“FCPA”) enforcement may soon take a closer look at the maritime industry.

As a preliminary matter, for over a decade, the oil and gas industry has been the focus of investigation and has seen more FCPA enforcement actions than any other industry.1 Continue reading “The Maritime Industry: The DOJ FCPA Unit’s Next Port of Call”

DOJ Urges U.S. Companies Acquiring or Merging with Foreign Companies to Self-Disclose FCPA Misconduct Identified during Due Diligence

Carlos F. Ortiz, Shawn M. Wright, Mayling C. Blanco, and Alexandra Clark

In a keynote address at the Ninth Global Forum on AntiCorruption Compliance in High Risk Markets, Matthew S. Miner, Deputy Assistant Attorney General of the Department of Justice’s (“DOJ”) Criminal Division, urged U.S. companies merging with or acquiring foreign targets to voluntarily disclose potential misconduct to the DOJ pursuant to the revised Foreign Corrupt Practices Act (“FCPA”) Corporate Enforcement Policy (the “Policy”).

As previously reported by Blank Rome, the Policy incentivizes companies to voluntarily self-disclose potential FCPA-related misconduct, fully cooperate with the government’s investigation, and remediate the alleged misconduct through a robust compliance program. Companies satisfying these three criteria are entitled to a presumption that the DOJ will resolve the case through a declination. Continue reading “DOJ Urges U.S. Companies Acquiring or Merging with Foreign Companies to Self-Disclose FCPA Misconduct Identified during Due Diligence”

FCPA under the New Administration

Mainbrace | October 2017 (No.4)

Mayling C. Blanco, Carlos F. Ortiz, Shawn M. Wright, and Ariel S. Glasner




The single most frequently asked question by our international clients over the past several months is whether there will be changes in white collar prosecution priorities under the new administration, specifically with respect to the Foreign Corrupt Practices Act (“FCPA”). The FCPA, which criminalizes the payment of bribes to foreign officials around the world, has been subject to enforcement trends and scrutiny during its 40-year history.

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The Global Anti-Corruption Corner: A Primer to the Foreign Corrupt Practices Act

Mainbrace | June 2017 (No. 3)

Shawn M. Wright, Carlos F. Ortiz, Mayling C. Blanco, and Ariel S. Glasner




Any company doing business abroad is subject to the long reach of the Foreign Corrupt Practices Act (“FCPA”). Small or privately held companies, just like large or public companies, are subject to the criminal specter of the FCPA. The operative inquiry is whether the company is operating and/or transacting any type of business abroad with the government, government-owned entities, or involving foreign officials—either directly, through joint ventures, or indirectly, through agents. A foreign official also includes employees of entities owned by the government.

Although the FCPA was first enacted in 1977, it was not widely enforced until the turn of this century; since then, the law has resulted in a steady flow of significant corporate settlements. Indeed, in approximately the last two decades, enforcement of the FCPA has increased exponentially, with the second-largest number of enforcement actions having been brought in 2016 (2008 had the greatest number). Before the FCPA, no country considered bribing a foreign official for business purposes to be illegal—it was simply considered a cost of doing business abroad. The United States was the first country to outlaw the practice and recently published a comprehensive resource guide to compliance with the act.

Continue reading “The Global Anti-Corruption Corner: A Primer to the Foreign Corrupt Practices Act”

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