BY DANIELLE T. GAUER – Oil pollution resulting from maritime disasters continues to spark concern for coastal states as the damage from oil that is discharged into waters is threatening all facets of the marine environment. This is despite the fact that it wasn’t until the 1970s when practice changed from using the world’s oceans to dump harmful pollutants to states enforcing strict regulations on both the domestic and international level.[1] In addition, the Deepwater Horizon incident in the Gulf of Mexico in 2010 is just one of many incidents that has led the United States to respond with increased controls and enhanced regulation.[2]
As ships continue to be used to transport the world’s goods, more and more effort is being made by states to prosecute those who pollute the oceans and coastlines by dumping sewage, garbage and oil. Having a tremendous stake in keeping its waters clean, the United States has gone to great lengths to protect this resource.
The United States, through its domestic laws and international law, regulates ship pollution. Under both domestic and international law, the United States has an obligation to its citizens and the international community at large to prevent and enforce violations of environmental and regulatory statutes. The International Convention for the Prevention of Pollution from Ships (MARPOL) was adopted in response to a number of tanker accidents in 1976-77 and is the main convention dealing with prevention of pollution of the marine environment by ships from operational or accidental causes.[3]
Since MARPOL is not a self-executing treaty, each party to the treaty, including the United States, agrees to set up its own rules for ships that fly that state’s flag. Congress implemented MARPOL through the United States law, the Act to Prevent Pollution from Ships (“APPS”).[4] Any action taken with respect to the United States law must be in accordance with international law.[5] Further, “Congress made §1908(a)’s criminalization of MARPOL violations only applicable to U.S. ships, wherever located, and foreign ships in three specific circumstances”.[6]
Environmental crimes include the intentional dumping of oil and plastic from ships, and the falsification of ship records, including the failure to maintain an accurate “record book” (both oil and garbage records). There has also been a crackdown on the dumping of oil contaminated bilge waste via the infamous “magic pipe”.[7]
A “magic pipe” consists of a “rubber hose and metal flanges welded together onboard to bypass required pollution prevention equipment.”[8] This essentially enables the vessel to discharge the oily waste directly into the ocean.”[9] In January 2015, a chief U.S. District Judge ordered Hachiuma Steamship, a Japanese company and subsidiary company controlled by NYK to pay $1.8 million for violating APPS.[10] It was reported via a whistleblower that the Selene Leader, a vessel operated by Hachiuma Steamship that transported vehicles to and from ports in the United States, was transferring oily wastes between oil tanks using rubber hoses and illegally bypassing pollution control equipment to discharge the oily wastes into the ocean.[11]
MARPOL specifies the proper conditions and procedures that must be followed before any discharge into the sea of oil or oily mixtures.[12] In addition to the steep fine, Hachiuma Steamship was placed on probation for three years, during which it is to develop an environmental compliance program that will arguably be monitored by third party auditors.[13] Of the $1.8 million, $250,000 went to the whistleblower for exposing the violations, $450,000 went to the National Fish and Wildlife Foundation to fund projects for Chesapeake Bay, while the remainder will go to a federal fund used by the United States for marine pollution cleanup.[14]
It is evident from the recent case involving Selene Leader that the United States Coast Guard is taking a tough stand on environmental non-compliance and sending a message to the maritime industry that violators will be punished. The consequence for violating APPS (and MARPOL) is not a laughing matter. Violations of APPS can result in civil and/or criminal penalties pursuant to §1908 of the Act.[15] The United States Justice Department along with the international community continues to work together to prosecute these serious crimes that threaten the world’s ocean resource.
[1] Marine Pollution: Ocean Dumping, NOAA Office of General Counsel, http://www.gc.noaa.gov/gcil_mp_ocean_dumping.html (last visited Feb.14, 2015).
[2] Deepwater Horizon Oil Spill of 2010, Encyclopedia Britannica, http://www.britannica.com/EBchecked/topic/1698988/Deepwater-Horizon-oil-spill-of-2010 (last updated Sept.9, 2014).
[3] International Maritime Organisations and their Contribution towards a Sustainable Marine Development (Peter Ehlers & Rainer Lagoni eds., 2006), https://books.google.com/books?id=Vvd333cOCzAC&pg=PA7&lpg=PA7&dq=international+maritime+organisaztions+peter+ehlers&source=bl&ots=lmokypRJ0u&sig=Jli5Vzl6vgV90RH0VprNHLOmRZo&hl=en&sa=X&ei=1ZvfVLulJPLhsATsyoKQAQ&ved=0CCAQ6AEwAA#v=onepage&q=international%20maritime%20organisaztions%20peter%20ehlers&f=false, (last visited Feb.14, 2015).
[4] Act to Prevent Pollution from Ships, 33 U.S.C §§1901-1915 (1980).
[5] Id.
[6] U.S. v. Abrogar, 459 F.3d 430 (3d Cir. 2006) at 434-35. “(1) while the ship is within the navigable waters of the United States; (2) while in the exclusive economic zone of the United States; and (3) when at a port or terminal in the United States.”
[7] Steven P. Solow & Anne M. Carpenter, The State of Environmental Crime Enforcement: A Survey of Developments in 2012, American Law Institute Continuing Legal Education, ALI-CLE Course Materials June 12-14, 2013,
[8] Press Release, The United States Department of Justice, Two Shipping Corporations Plead Guilty and Are Sentenced in Maryland for Obstruction of Justice and Environmental Crimes, http://www.justice.gov/opa/pr/two-shipping-corporations-plead-guilty-and-are-sentenced-maryland-obstruction-justice-and (Jan.25, 2012).
[9] Solow & Carpenter, supra note 7.
[10] Dale Wainwright, NYK Gets “Magic Pipe” Fine, TradeWinds (Feb.2, 2015, 00:14 GMT), http://www.tradewindsnews.com/casualties/353521/NYK-gets-magic-pipe-fine.
[11] MarEx, Magic Pipe Whistleblower gets $250,000, The Maritime Executive (Feb.2, 2015, 17:38), http://www.maritime-executive.com/article/magic-pipe-whistleblower-gets-250000.
[12]1973 International Convention for the Prevention of Pollution from Ships, Nov.2, 1973, 1340 U.N.T.S. 184 & Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, Feb.17, 1978, 1340 U.N.T.S. 61 (hereinafter collectively “MARPOL”), Regulation 9, Control of Discharge of Oil.
[13] Wainwright, supra note 10.
[14] Kurt Niland, Whistleblower Receives $250,000 in Maritime Pollution Case After Exposing Illegal Wastewater Dumping, Righting Injustice (Feb.9, 2015), http://www.rightinginjustice.com/news/2015/02/09/whistleblower-receives-250000-in-maritime-pollution-case-after-exposing-illegal-wastewater-dumping/
[15] Act to Prevent Pollution from Ships, 33 U.S.C §1908 ss.(a)&(b).
The article was very interesting and complete, the links were also very helpful. Incredible how the whistleblower got $250.000! I guess this will work as an n effective deterrence for future cases.
Excellent discussion of this important maritime, environmental, and international law issue. Well-written and articulated!
The author has drawn attention to, and concisely described, complex issues relating to law, government, public policy, international relations, environment, conservation, science, and industry to benefit the public interest.