Annex IV (sewage from ships)

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  In force since 27 September 2003-1 0-29
  

The discharge regulations in Annex IV MARPOL have been implemented

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  for the Baltic Sea area under German jurisdiction by the 1st Amendment to the Ordinance for the Protection of the Baltic Sea
  

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  and for the North Sea area under German jurisdiction by the Ordinance of the Prevention of Pollution of the North Sea by Sewage from Ships.
  

1. Discharge regulations

The IMO adopted a comprehensive program of engine and fuel standards, detailed in amendments to Annex VI to the International Convention for the Prevention of Pollution from Ships (also called MARPOL), that closely matches a proposal submitted by EPA and its Federal partners to the IMO last year.

The new international standards contained in the Annex VI amendments apply to all new marine diesel engines above 130 kW (175 hp) and all marine diesel fuels. For vessels flagged and registered in the United States. EPA’s dean diesel engine and fuel standards (www.epa.gov/otaq/marine.htm#2008final) will apply for all but the very largest new marine diesel engines (those above 30 liters per cylinder displacement). For engines above 30 liters per cylinder and for residual fuels, the new Annex VI standards will apply.

Oceangoing vessels dock at over a hundred ports in the U.S., including some along navigable waterways in the nation’s interior. More than 40 of these ports are in metropolitan areas that do not meet the National Ambient Air Quality Standards (www.epa.gov/air/criteria.html). These vessels also travel along our populated coasts and waterways. Most have, at best, very modest air pollution controls and many have no controls at all, emitting pollutants at levels (measured in grams per horsepower-hour) typical of highway trucks built before the 1980s. Furthermore, these emissions of particulate matter (PM), sulfur oxides (“Sox), hydrocarbons, and NOx can degrade air quality for people living hundreds of miles downwind.

The final ECA standards will achieve reductions from current Tier 1 engine emission levels (www.epa.gov/otaq/oceanvessels.htm=tier1) of 80%, 85%, and 95% for NOx, PM, and SOx, respectively. Considering the large contribution OGVs make to U.S. air quality problems, especially in port cities, the health benefits from these emission reductions will be very substantial. We anticipate many billions of dollars of health and welfare benefits in the U.S. from this program if an BCA designation is made for U.S. coastlines.

In today’s global economy, the number of ships doing business at U.S. ports is increasing at a rapid rate. Very few of these ships are U.S.-flagged, and the fuel they burn when entering U.S. waters has typically been obtained elsewhere, at ports all over the world. This new IMO program directly addresses emissions from these foreign-flagged vessels. It requires them to meet stringent standards whenever they operate in designated ECAs.

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  10,000 ppm starting July 2010.
  
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  1,000 ppm starting January 2015.
  

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  35,000 ppm starting January 2012.
  
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  5,000 ppm starting January 2020 (subject to a review in 2018, but no delay past 2025).
  

The engine emission standards vary with rated engine speed according to a formula. See “Where can I get more information” below for details. Percent reductions from the existing Tier 1 standards are provided below:

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  Tier 3 for new engines: 80% NOx reduction starting January 2016 (based on the use of advanced catalytic after treatment systems).
  

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  Tier 2 for new engines: 20% NOx reduction starting January 2011.
  
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  Tier 1 for existing engines: 15-20% NOx reduction from current uncontrolled levels. Manufactures may begin certifying systems (sets of upgraded replacement parts) starting in 2010. Installation will occur at a vessel’s first “renewal survey” following the Tier 1 certification applicable to the vessel’s engines. A renewal survey is a major inspection and maintenance activity, typically done every 5 years.
  

Dutchman is registered and flies the flag of Liberia. Nation A is a party to the UNCLOS 1982 and MARPOL 73/78.

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   UNCLOS provides for enforcement of international pollution standards by the flag state (Article 217), the port state (Article 218), and the coastal state (Article 220). Problem 7-6 concerns port state enforcement of MARPOL standards. Under UNCLOS Article 218, does Nation A have authority to enforce MARPOL standards under international law? Does Nation A have authority to institute proceeding concerning discharges of oil and other substances in the EEZ or territorial sea of Jamaica or Cuba ? Does Nation A have any obligation to notify authorities in Liberia (the flag state) and other states such as Jamaica and Cuba?
   

2. 
   In the proceedings instituted by Nation A , what are its obligations under international law? Consider UNCLOS Articles 223 and 231.
   

3. 
   May Nation A impose criminal penalties such as imprisonment against the master and crew members of the Flying Dutchman ? See UNCLOS Article 230.
   

4. 
   Can authorities of Nation A detain the Flying Dutchman in port indefinitely? Can the ship be confiscated? Is there an obligation to release the master and crew members upon the posting of a reasonable bond? See UNCLOS Article 226.
   

5. 
   Suppose the flag state, Liberia, institutes proceedings against the Flying Dutchman in Monrovia, Liberia. What are the obligations of Nation A? See UNCLOS Article 228.
   

MARPOL is the common name for the International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, as modified by the Protocol of 1978, opened for signature Feb. 17, 1978. 1340 U.N.T.S. 62 [hereinafter MARPOL]. This multilateral maritime treaty aims “to achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances.” Id. at 184. MARPOL is not a self-executing treaty; instead, each party agrees to “give effect” to it by establishing rules for ships that fly its flag, certifying that such ships comply with the treaty rules, and sanctioning those ships that violate the treaty. MARPOL arts. 1(1), 4(1), 5(1); see United States v. Ionia Mgmt. S.A., 555 F.3d 303, 307 (2d Cir. 2009). As relevant to this case, both the United States and the Republic of Panama are signatories to the treaty. The Act to Prevent Pollution from Ships (“APPS”), 33 U.S.C. § 1901 et seq., implements MARPOL and authorizes the U.S. Coast Guard to issue regulations implementing the requirements of the treaty. See 33 U.S.C. § 1903(c)(1); 33 C.F.R. § 151.01 et seq.

legal duty to conduct a MARPOL survey; (4) that the district court’s jury instructions pertaining to Count 27 amounted to plain error; (5) that the district court should have granted Pena’s motion for judgment of acquittal on Count 27; and (6) that the district court should have granted his motion for judgment of acquittal on Count 28.

Pena argues that under MARPOL it is the responsibility of the Flag State to conduct surveys and to issue IOPP Certificates, and therefore only the Flag State has jurisdiction to prosecute a surveyor for failure to conduct a proper MARPOL survey. According to Pena’s argument, Panama had sole jurisdiction to prosecute Pena because the Island Express was a Panamanian-flagged vessel, and therefore, the United States had no jurisdiction to prosecute Pena for failing to conduct a complete MARPOL survey of the Island Express. We disagree.

felony.” 33 U.S.C. § 1908(a). Thus, the district court had jurisdiction to adjudicate the offense unless there was a separate limit on subject matter jurisdiction.

jurisdiction.” Wilson v. Girard, 354 U.S. 525, 529, 77 S. Ct. 1409, 1412 (1957) (per curiam).

Secretary shall cause the matter to be investigated. . . . Upon completion of the investigation, the Secretary shall take the action required by the MARPOL Protocol . . . and whatever further action he considers appropriate under the circumstances.” Id. § 1907(b). We find nothing in Article 4 or the APPS that provides express or implied consent to surrender the United States’ concurrent jurisdiction over

violations of the APPS occurring on foreign ships while docked at U.S. ports. See Wilson, 354 U.S. at 529, 77 S. Ct. at 1412.
Pursuant to Article 4 of MARPOL, the United States shares concurrent jurisdiction with the Flag State over MARPOL violations occurring on foreignflagged ships in U.S. ports. Furthermore, 18 U.S.C. § 3231 and 33 U.S.C. §§ 1907 and 1908 give U.S. district courts jurisdiction over violations of MARPOL committed on foreign-flagged ships in U.S. ports, and Congress has neither explicitly nor implicitly surrendered complete jurisdiction to the Flag State. Thus, we conclude that the United States had jurisdiction to prosecute Pena, a surveyor of a foreign-flagged ship, for a knowing violation of MARPOL committed on a foreign-flagged ship at a U.S. port.
B. Sufficiency of the Indictment
We review de novo the sufficiency of an indictment. United States v. Wayerski, 624 F.3d 1342, 1349 (11th Cir. 2010). Substantively, for an indictment to be sufficient, it must: (1) present the essential elements of the charged offense; (2) provide the accused notice of the charge he must defend against; and (3) enable the accused to rely upon any judgment under the indictment for double jeopardy

purposes. United States v. Woodruff, 296 F.3d 1041, 1046 (11th Cir. 2002). “In determining whether an indictment is sufficient, we read it as a whole and give it a common sense construction.” United States v. Jordan, 582 F.3d 1239, 1245 (11^th Cir. 2009) (per curiam) (quotations omitted). “A criminal conviction will not be upheld if the indictment upon which it is based does not set forth the essential elements of the offense.” United States v. Fern, 155 F.3d 1318, 1324-25 (11th Cir. 1998). “If an indictment specifically refers to the statute on which the charge was based, the reference to the statutory language adequately informs the defendant of the charge.” Id. at 1325.

requirements of this Annex.” Id. regs. 6.1.1, 6.1.2. Therefore, prior to issuing an IOPP Certificate to a re-flagged vessel, a surveyor must conduct a survey that is “such as to ensure that the structure, equipment, systems, fittings, arrangements and material fully comply with the applicable requirements” of Annex I of MARPOL. Id. This, of course, is the precise language of Count 27 (which tracked the language of Regulations 6.1.1 and 6.1.2). Thus, Pena’s argument that Count 27 is defective is wholly without merit.

28 are omitted]