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U.S. Can Prosecute MARPOL Violations on Foreign-Flagged Ships

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By Robyn Hagan Cain on June 20, 2012 4:30 PM

Does the United States has jurisdiction to prosecute a nominated surveyor — i.e., a person who conducts a MARPOL survey on behalf of a foreign nation — for a knowing MARPOL violation while aboard a foreign-flagged ship docked in the United States?

According to Defendant Hugo Pena, it is the responsibility of the Flag State to conduct surveys and issue certificates, and therefore only the Flag State has jurisdiction to prosecute a surveyor for failure to conduct a proper MARPOL survey. The Eleventh Circuit Court of Appeals disagrees.

In a case of first impression for the court, (and quite possibly the country) the Eleventh Circuit ruled on Wednesday that the United States has jurisdiction to prosecute a surveyor for a MARPOL violation committed in a U.S. ports.

MARPOL is a multilateral maritime treaty which aims to prevent marine pollution. Each "Flag State" or party agrees to "give effect" to MARPOL, (a.k.a. the International Convention for the Prevention of Pollution) by establishing rules for ships that fly its flag, certifying that ships follow the treaty rules, and sanctioning those ships that don't.

On May 4, 2010, the Island Express I was in the process of changing its flag from St. Kitts and Nevis to Panama near Fort Lauderdale. The U.S. Coast Guard conducted an unannounced inspection of the vessel and reviewed its April 15, 2010 International Oil Pollution Prevention (IOPP) Certificate. Hugo Pena, the "attending surveyor" who conducted the survey and signed the IOPP Certificate, had indicated on the document that he had inspected the ship, and all of its pollution-fighting mechanisms were in order. According to the Coast Guard, the boat had multiple pump and tank problems.

When questioned by the Coast Guard examiners, Pena admitted that the IOPP Certificate wasn't so accurate. He was indicted and convicted for knowingly violating MARPOL by failing to conduct a complete survey of the boat, and knowingly and willfully making a materially false, fictitious, and fraudulent statement, by certifying that the structure, equipment, systems, fittings, arrangements, and material of the vessel and its condition were in compliance with Annex I of MARPOL.

Pena appealed to the Eleventh Circuit Court of Appeals, claiming that the feds lacked jurisdiction to prosecute him for failure to conduct a MARPOL survey of a Panamanian-flagged vessel.

The Eleventh Circuit Court of Appeals noted that, under MARPOL, the U.S. shares concurrent jurisdiction with the Flag State over MARPOL violations occurring on foreign-flagged ships in U.S. ports. Furthermore, district courts have jurisdiction over violations of MARPOL committed on foreign-flagged ships in U.S. ports. (Congress has never surrendered complete jurisdiction to the Flag State.) Thus, the U.S. had jurisdiction to prosecute Pena for a knowing MARPOL violation committed on a foreign-flagged ship at a U.S. port.

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