NOTES AND QUESTIONS 1. MARPOL enforcement. MARPOL and APPS standards apply to US-flag ships anywhere in the world, but enforcement against foreign-flag ships is based on coast-state and port-state enforcement for substantial violations of MARPOL that occur in US ports or waters. In cases of discharges in violation of MARPOL by foreign-flag vessels, it may be difficult to prove exactly where the discharge took place and if it occurred in an area subject to US jurisdiction. See generally, United States v. Abrogar, 459 F. 3d 430, 435 (3d Cir. 2006). In order to clear this hurdle, MARPOL offenses by foreign-flag vessels are typically prosecuted as record-keeping violations. If such discharges occurred and they were not properly logged in the ship's Oil Record Book (ORB), criminal liability may attach pursuant to 33 USC sec. 1908(a). A foreign-flag ship's ORB must not be knowingly inaccurate upon entering the ports or navigable waters of the United States . See United States v. Ionia Management, S.A., 555 F.3d 303 (2d Cir. 2009). In the
Pena Case, criminal liability attached to the surveyor employed by the foreign-flag vessel. Is this good policy, or should liability be based only upon finding a direct violation of a MARPOL effluent standard?
2. Enforcement against foreign shipowners. In cases involving foreign-flag ships, the shipowners are typically located outside the US. Is it fair to arrest and prosecute the master or members of the crew, who may be poorly educated and have meager financial means, while the foreign shipowner cannot be brought before the court? In fact, the APPS also permits civil penalties to be levied against the vessel and shipowner, and the vessel in question may be arrested and kept in port pending payment of the fines levied. Moreover, the Coast Guard may arrest the ship and the crewmembers and require them to stay in port indefinitely pending investigation of the incident. This will be quite costly to the foreign shipowners. In Giuseppe Bottigliere Shipping Co. S.P.A. v. United States, 843 F.Supp. 2d (S.D. Ala. 2012), the Coast Guard discovered a "magic pipe" aboard an Italian-owned cargo vessel arrived at the port of Mobile, Alabama, and arrested the ship and the crew, pending its ongoing investigation of illegal activity. The Coast Guard delivered a letter to the vessel stating that "there is reasonable cause to believe that the vessel, its owner, operator, person in charge, or crew members may be subject to a fine or criminal penalty" and further stated that "when [our] investigation is com plete, we will request that CBP [US Customs and Border Protection] grant departure clearance for the vessel." (I bid. at 1244).
This detention of the vessel cost the owners $15,000 per day in lost hire as well as the wages and expenses of the idle crewmembers during the time for investigation. What can the shipowner do to regain its ship? Under APPS section 1908(e), clearance may be granted for the vessel under investigation upon the filing of a bond or other surety. In the Bottigliere Case, the Coast Guard not only required a bond in the amount of $700,000, but also required the shipowner to guarantee payment of the wages and hotel expenses of the crew members during the ongoing investigation of the matter. The shipowner regarded these terms to be unreasonable, but they were upheld by the court, which outlined the shipowner's options as follows: (1) "accede to the demands of the Coast Guard, even though it thinks them unreasonable"; (2) "request reconsideration and/or appeal the surety agreement terms"; or (3) "provide the Coast Guard and Attorney General with the 60-day noted for judicial review under
33 USC sec 1910(b)(1) and initiate judicial review proceedings under the APPS, with a view to seeking relief ... and/or recovering damages under section 1904(h) for what it perceives as the unreasonable detention or delay of the vessel." (Ibid. at 1253 ). How realistic are these options?
3 . Discharge of sewage from vessels. Although the United· States is not a party to MARPOL Annex IV, the United States regulates the discharge of sewage from vessels under section 312 of the US Clean Water Act, 33 USC sec. 1322. The regulations for marine sanitation devices (MSDs) are contained in 33 CFR Part 159. Under these provisions different marine sanitation devices are specified for different categories of vessels. Both commercial and recreational vessels with installed toilets must comply with specified standards for MSDs that are designed either to hold sewage for shore-based disposal or to treat sewage prior to discharge. In addition, the Coast Guard enforces MARPOL Annex IV standards against foreign vessels in US ports or waters. USflagged ships that call in ports abroad should have a certificate demonstrating compliance with Annex IV to avoid possible port state detention while abroad. See US Coast Guard Navigation and Vessel Inspection Circular (NVIC) No. 1-091, on-US voluntary compliance with the revised MARPOL Annex IV effluent and performance standards that entered into force January 1, 2010.
4. Garbage and plastics. MARPOL Annex V requires every vessel of 12 meters or more to display instructions to inform the ship's crew and passengers regarding garbage disposal requirements. Garbage on ships in classified into six categories: plastics; floating dunnage, lining and packing material ; ground-down paper products, rags, glass, metal bottles, and crockery; food waste; incinerator ash; and normal paper products, rags, oily rags and metal scrap. Annex IV prohibits disposal of plastic anywhere at sea. No form of garbage may be disposed in coastal areas or designated special areas. Special areas include the Mediterranean Sea, the Baltic Sea, the Black Sea, the Gulf Areas, the Antarctic Area, the Red Sea Area, the North Sea Area, and the Wider Caribbean Region. Annex V requires governments to provide facilities at ports and terminals for the reception of garbage. The requirements of MARPOL Annex V that came into effect on January 1, 2013, are summarized in the following table:
SUMMARY OF RESTRICTIONS TO THE DISCHARGE OF GARBAGE INTO THE SEA UNDER REGULATIONS 4, 5 AND 6 OF MARPOL ANNEX V (extract from resolution MEPC 219(63))
All ships except platforms4
Offshore platforms located more than 12 nm from nearest land and ships when alongside or within 500 metres of such platform4 regulations5
Outside special areas Regulation4 (Distances are from the nearest land)
Within special areas Regulation6 (Distances are from nearest land or nearest ice-shelf)
> 12 nm, en route and as far as practicable (subject to conditions in regulation 6.1.2)
Cleaning agents and additives6 contained in cargo hold washwater
> 12 nm, en route and as far as practicable (subject to conditions in regulation 6.1.2)
Cleaning agents and additives6 in deck and external surfaces washwater
Animal Carcasses (should be split or otherwise treated to ensure the carcasses will sink immediately)
Must be en route and as far from the nearest land as possible. Should be > 100 nm and maximum water depth
All other garbage including plastics, synthetic ropes, fishing gear, plastic garbage bags, incinerator ashes, clinkers, cooking oil, floating dunnage, lining and packing materials, paper, rags, glass, metal, bottles, crockery and similar refuse
1 When garbage is mixed with or contaminated by other harmful substances prohibited from discharge or having different discharge requirements, the more stringent requirements shall apply.
2 Comminuted or ground food wastes must be able to pass through a screen with mesh no larger than 25 mm.
3 The discharge of introduced avian products in the Antarctic area is not permitted unless incinerated, autoclaved or otherwise treated to be made sterile.
4 Offshore platforms located 12 nm from nearest land and associated ships include all fixed or floating platforms engaged in exploration or exploitation or associated processing of seabed mineral resources, and all ships alongside or within 500 m of such platforms.
5 Cargo residues means only those cargo residues that cannot be recovered using commonly available methods for unloading.
6 These substances must not be harmful to the marine environment
The revised MARPOL Annex V requires among others, the following new/revised requirements for garbage management plan and garbage record book:
1 The Garbage Management Plan is now required for every ship of 100 gt and above (previously 400gt and above), every ship which is certified to carry 15 or more persons and fixed or floating platforms which are engaged in the exploration, exploitation or associated offshore processing of sea-bed mineral resource.
The Garbage Management Plan shall be based on the 2012 guidelines - see the below attached resolution MEPC.220(63) - adopted by the Marine Environment Protection Committee of the Organization. This will revoke the Guidelines for the Development of Garbage Management Plans (resolution MEPC.71 (38)), upon the entry into force of the revised MAR POL Annex V (i.e. 1 January 2013).
2 The garbage record book and the record of garbage discharges have been revised. The Garbage Record Book, whether as a part of the ship's official log-book or otherwise, shall be in the form specified in the appendix to the revised Annex V as per resolution MEPC 201(62).
5. Air pollution from ships. Updated IMO air pollution from ships regulations are set out in the foregoing
US EPA notice of October 2008. In the United States these regulations are enforced by the US EPA and the Coast Guard, and violators may be liable for criminal and civil penalties. Note how the standards for air emissions and fuel requirements become progressively more stringent. The regulations governing ship emissions may be found in 40 CFR Part 1043 and Part 80, subpart I . The US Clean Air Act authorizes federal regulation, and explicitly preempts state regulation of air pollution emissions from "new motor vehicles and new motor vehicle engines." 42 USC sees. 7521(a) (1), 7543(a). One state is exempted from this preemption---California. (See 42 USC sec. 7543 (b)(1). However, 1990 amendments to the Clean Air
Act require California to seek authorization from the EPA to enforce its separate state regulations relating to "non-road vehicles or engines." 42 USC sec. 7543(e)(2). Other states can adopt regulations identical to California's approved by the EPA. In 2007, the California Air Resources Board (CARB) began enforcing new state marine vessel rules regarding the emissions of particulate matter, nitrogen oxide and sulfur oxide from ocean-going vessels on all waters within twenty-four nautical miles of the California coast. Cal. Code Regs. (CCR) Tit. 13, sec. 2299. In Pacific Merchant Shipping Association v. Goldstene, 517 F.3d 1108 (9th Cir. 2008), the court ruled that these California standards were emission standards relating to non-road engines requiring advance EPA approval, and, since California had neither sought nor obtained approval by the EPA for these emission standards, they were preempted by the Clean Air Act. In 2009, CARB promulgated new Vessel Fuel Rules (13 CCR sec. 2299.2 and 19 CCR
sec. 93 118) that vessel operators in California waters must meet in order to reduce particulate matter, nitrogen oxide and sulfur oxide emissions by about 90 %, essentially accomplishing the same purposes as the repudiated emissions rules. In Pacific Merchant Shipping Association v. Goldstene, 659 F. 3d 1154 (9th Cir. 2011), since the Vessel Fuel Rules did not require advance approval by the EPA, the court considered whether the rules were preempted through (1) statutory preemption by the US Submerged
Lands Act; (2) admiralty preemption; or (3) implied field preemption . The court also considered whether the Vessel Fuel Rules were inconsistent with the Dormant Commerce Clause doctrine. The court rejected all these challenges and upheld the Vessel Fuel Rules. Although the twenty-four mile enforcement area under California law is broader than the three-mile grant to the state under the
Submerged Lands Act, the court ruled that the Vessel Fuel Rules do not make any territorial claim, and that prior Supreme Court cases recognize the right of states to legislate extraterritorially under their historic police powers. The court also rejected admiralty preemption on the ground that the Vessel Fuel
Rules contain a sunset clause that will lead them to expire when MARPOL Annex VI is fully phased in.
The court also rejected the Dormant Commerce Clause challenge on the ground that the federal interest in uniformity is "rather attenuated" in the field of air pollution and environmental degradation.
6. Regulation of ships' ballast water, bilge water and graywater. Discharges of waters from ships were long exempt from the permitting requirements of the US Clean Water Act. 40 CFR sec. 122.3(a) excluded from permitting discharges incidental to the normal operation of a vessel. This exemption regulation was challenged and overturned in Northwest Environmental Advocates v. Environmental Protection Agency, 537 F.3d 1006 (9th Cir. 2008), which ruled that all vessel discharges---ballast water, bilge water, graywater, and deck runoff water---are subject to EPA permitting under the Clean Water Act. [ballast water is water that is taken on or released by cargo vessels to compensate for changes in the vessels' weights as cargo is taken on or discharged; bilge water is the water that collects in ships' bilges, their lowest parts; graywater is wastewater from showers, sinks and kitchens]. Ballast water is a particular problem because it may contain aquatic invasive species that cause millions of dollars in damages to fisheries, recreation, and public infrastructure. Ballast water discharges are now subject to meeting the requirements under a General Permit under the Clean Water Act NPDES Program and the Non-Indigenous Aquatic Nuisance Prevention and Control Act, 16 USC sees. 4701 et seq. The new regulations, contained in 33 CFR Part 151 and 46 CFR 162, require flushing and exchange of ballast water by vessels in Pacific-near-shore voyages and salt water flushing of ballast water tanks that are empty or contain only un-pumpable residual ballast water. The EPA is also investigating the feasibility of ballast water treatment systems for future possible application. Some states, notably Alaska, prohibit the discharge of ballast water in their territorial waters. See Chevron USA, Inc. v Hammond, 726 F. 2d 483 (9th Cir. 1984).
SECTION VI. Ocean Dumping Until the early 1970s, the oceans of the world were treated as convenient receptacles for the worst types of waste materials: toxic chemicals, radioactive waste, hazardous waste, garbage and other unwanted items of every kind. In 1972, a multilatural convention, the London Convention on the
Prevention of Marine Pollution by Dumping of Wastes and Other Matter, finally limited intentional dumping of wastes at sea. The mechanism employed by the 1972 London Convention was to prohibit the dumping of certain listed materials, and to allow dumping for non-listed materials through national permitting programs.
The United States is a party to the 1972 London Dumping Convention, and has implemented the Convention by enacting the Ocean Dumping Act, 33 USC sees. 1401 et seq. This Act prohibits persons and US flag vessels from transporting any materials from the United States for the purpose of dumping into ocean waters. Furthermore, no person from outside the United States may dump any material into the United States territorial sea or contiguous zone without a permit. Permits for dumping are issued by the US Environmental Protection Agency, except the US Army Corps of Engineers has authority to issue permits for the dumping of dredged materials. In determining whether to grant a permit, the EPA and the Corps are required to evaluate the following criteria: the need for the proposed dumping; the effect of the dumping on human health and welfare; the impact of the dumping on fisheries and resources; the effect on marine ecosystems; the persistence and permanence of the dumped materials; the effect of particular volumes and concentrations of the materials; the appropriateness of the location; whether recycling or other methods of disposal are available; and the effect of the dumping on alternative uses of the oceans. 33 USC .sec. 1412.
In 1996, because of widespread concern that the 1972 Dumping Convention was not strict enough, a Protocol was agreed that essentially replaces the earlier treaty. The 1996 Protocol to the London Convention on Prevention of Marine Pollution by Dumping of Wastes and Other Matter was agreed on November 7, 1996, and entered into force for 49 parties on March 24, 2006. The United States has signed but not ratified this Protocol, so US law still reflects the earlier Convention. The distinctive .feature of the 1996 Protocol, which is partially reproduced below, is the "reverse list" approach : rather than prohibiting the dumping of specifically listed substances, the 1996 Protocol prohibits dumping of any substance other than those specifically listed in Annex I.
1996 PROTOCOL TO THE CONVENTION ON THE PREVENTION OF MARINE POLLUTION BY
DUMPING OF WASTES AND OTHER MATIER, 1972 The Contracting Parties to this Protocol,
Have agreed as follows:
ARTICLE 3 GENERAL OBLIGATIONS
In implementing this Protocol, Contracting Parties shall apply a precautionary approach to environmental protection from dumping of wastes or other matter whereby appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects.
Taking into account the approach that the polluter should, in principle, bear the cost of pollution, each Contracting Party shall endeavour to promote practices whereby those it has authorized to engage in dumping or incineration at sea bear the cost of meeting the pollution prevention and control requirements for the authorized activities, having due regard to the public interest.
In implementing the provisions of this Protocol, Contracting Parties shall act so as not to transfer, directly or indirectly, damage or likelihood of damage from one part of the environment to another or transform one type of pollution into another.
No provision of this Protocol shall be interpreted as preventing Contracting Parties from taking, individually or jointly, more stringent measures in accordance with international law with respect to the prevention, reduction and where practicable elimination of pollution .
ARTICLE 4 DUMPING OF WASTES OR OTHER MATTER 1. 1. Contracting Parties shall prohibit the dumping of any wastes or other matter with the exception of those listed in Annex l.
2. The dumping of wastes or other matter listed in Annex 1 shall require a permit. Contracting Parties shall adopt administrative or legislative measures to ensure that issuance of permits and permit conditions comply with provisions of Annex 2. Particular attention shall be paid to opportunities to avoid dumping in favour of environmentally preferable alternatives.
2. No provision of this Protocol shall be interpreted as preventing a Contracting Party from prohibiting, insofar as that Contracting Party is concerned, the dumping o f wastes or other matter mentioned in Annex 1. That Contracting Party shall notify the Organization of such measures.
ARTICLE 5 INCINERATION AT SEA Contracting Parties shall prohibit incineration at sea of wastes or other matter.
ARTICLE 6 EXPORT OF WASTES OR OTHER MATTER Contracting Parties shall not allow the export of wastes or other matter to other countries for dumping or incineration at sea.
ARTICLE 8 EXCEPTIONS The provisions of articles 4. 1 and 5 shall not apply when it is necessary to secure the safety of human life or of vessels, aircraft, platforms or other man-made structures at sea in cases of force majeure caused by stress of weather, or in any case which constitutes a danger to human life or a real threat to vessels, aircraft, platforms or other man-made structures at sea, if dumping or incineration at sea appears to be the only way of averting the threat and if there is every probability that the damage consequent upon such dumping or incineration at sea will be less than would otherwise occur. Such dumping or incineration at sea shall be conducted so as to minimize the likelihood of damage to human or marine life and shall be reported forthwith to the Organization.
2 A Contracting Party may issue a permit as an exception to articles 4. 1 and 5, in emergencies posing an unacceptable threat to human health, safety, or the marine environment and admitting of no other feasible solution. Betore doing so the Contracting Party shall consult any other country or countries that are likely to be affected and the Organization which, after consulting other Contracting Parties, and competent international organizations as appropriate, shall, in accordance with article 18.1.6 promptly recommend to the Contracting Party the most appropriate procedures to adopt. The Contracting Party shall follow these recommendations to the maximum extent feasible consistent with the time within which action must be taken and with the general obligation to avoid damage to the marine environment and shall inform the Organization of the action it takes. The Contracting Parties pledge themselves to assist one another in such situations.
3 Any Contracting Party may waive its rights under paragraph 2 at the time of, or subsequent to ratification of, or accession to this Protocol.