Eleventh Circuit Holds Marine Surveyor Guilty for MARPOL Violations

In a question of first impression, the Eleventh Circuit affirmed the conviction of a marine surveyor for knowingly violating the MARPOL treaty while aboard a foreign vessel in a U.S. port.  The case is United States v. Pena and can be read here.

By way of legal background, MARPOL is the name of the International Convention for the Prevention of Pollution from Ships.  The United States is a signatory to MARPOL and passed the Act to Prevent Pollution from Ships.  33 U.S.C. 1901 authorizes the Coast Guard to implement MARPOL through issuance of regulations.  Among the regulations adopted to address pollution is the requirement that oily bilge water be maintained for discharge at a suitable facility in port or run through an oily-water-separator which removes much of the oil from the water thereby allowing at-sea discharge.  A ship's flag state has the responsibility to certify the ship's compliance with MARPOL by issuing an International Oil Pollution Prevention Certificate.  The flag state may use classification societies who employ surveyors to make the certification.

Facts:  A ship making a port call in Fort Lauderdale was inspected by the U.S. Coast Guard.  A classification society's surveyor signed the IOPP certificate for the ship.  Inspection of the vessel revealed that it did not have the required system to separate oily water and, in fact, had a "makeshift system of pumps and rubber tubes" to pump the oily waste from the bilge directly to the main deck where it could flow into the ocean.  The surveyor admitted that he had not tested the oily water separator and that he did authorize the ship's chief engineer to place the pumps in the bilge for use to pump the bilge water overboard, "but only in an emergency."  The surveyor was convicted. 

Analysis:  The surveyor challenged U.S. jurisdiction over the offense, which the court found was present.  Foreign ships in U.S. harbors face broad jurisdictional reach of U.S. laws.  The surveyor additionally challenged the sufficiency of the indictment and the jury instructions.  The court of appeals found both to be lawful and affirmed the conviction.