A Practical Approach to Reduce MARPOL Enforcement Risks in the United States
BY KIERSTAN L . CARLSON AND JEANNE M . GRASSO
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
A Detailed SMS Is Not Enough to Combat the Risk Posed by Whistleblowers Many vessel owners and operators may believe that maintaining a thorough Safety Management System (“ SMS ”) and having detailed policies and procedures will insulate them from the risk of a MARPOL prosecution . While these efforts to ensure regulatory compliance are required and are certainly worthwhile , a proliferation of forms and checklists alone will not prevent a MARPOL violation . Rather , a company ’ s compliance system must go beyond a detailed SMS to counter the serious risk of a whistleblower claim .
Enhancements to MARPOL compliance practices are imperative , as the conduct giving rise to MARPOL prosecutions is becoming increasingly more sophisticated and difficult for companies to detect . There are fewer and fewer true “ magic pipe ” cases where a pipe or hose is used to bypass the oilwater separator (“ OWS ”) and discharge untreated bilge water overboard . Instead , we are aware of several cases over the past few years where seafarers discharged bilge water or oily water , sometimes directly from the bilge wells , overboard through the ship ’ s sewage holding tank . This includes scenarios where the discharged bilge or oily water had never even entered the bilge system , and thus was not traceable through a review of the oil-record book (“ ORB ”). We also are aware of cases where seafarers have manipulated emergency cross-connect valves and used the ship ’ s eductor to discharge bilge water , thus bypassing the OWS . The location and nature of the equipment used in these discharges was difficult to access and not necessarily subject to extensive shoreside oversight . Critically , these types of violations
A company ’ s senior management must fully buy in and commit to regulatory compliance , but also create an environment where seafarers feel comfortable reporting internally
— or are even incentivized to do so .
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