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.
Continue reading “A Practical Approach to Reduce MARPOL Enforcement Risks in the United States”
As the inveterate pundit Pogo once said, “We have met the enemy and he is us.” This could very well be said for our disposable society, which uses and disposes tons of plastic in ways that are not wise and negatively impact the health of our oceans and sea life within. Although many reports focus on larger plastics, microplastics, which go largely unnoticed, are also wreaking havoc on our oceans. Microplastics are small pieces of plastic that come from a variety of sources, both from degradation of larger plastics and from tiny manufactured plastics that are added to many health and beauty products as exfoliants. Recent surveys by Australian scientists estimate that there are at least 14 million tons of microplastics on the ocean floor, with higher concentrations where plastics accumulate at the surface of the water. 