Colbro Ship Mgmt. Co., Ltd. v. U.S., Civil No. 98-1052(SEC).

• Decision Date: 03 February 2000
• Docket Number: Civil No. 98-1052(SEC).
• Citation: 84 F.Supp.2d 253
• Parties: COLBRO SHIP MANAGEMENT COMPANY LTD., Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

84 F.Supp.2d 253

COLBRO SHIP MANAGEMENT COMPANY LTD., Plaintiff, v. UNITED STATES of America, Defendant.

Civil No. 98-1052(SEC).

United States District Court, D. Puerto Rico.

February 3, 2000.

Paul E. Calvesbert-Borgos, San Juan, PR, for plaintiff.

Lisa E. Bhatia-Gautier, U.S. Attorney's Off. District of P.R., Civil Division, San Juan, PR, Richard T. Buckingham, Matthew, J. Glomb, Admiralty Trial Attorneys, U.S. Dept. of Justice, Torsts Br., Civil Division, Washington, DC, for defendant.

OPINION AND ORDER

CASELLAS, District Judge.

This is an action to review a decision by the United States Coast Guard (hereinafter "USCG") assessing a $10,000 penalty against Colbro Ship Management Company Limited (hereinafter "Colbro") under the Clean Water Act, also known as the Federal Water Pollution Control Act, for the discharge of garbage mixed with plastic into the navigable waters of the United States. Pending are the parties' cross-motions for summary judgment. (Dockets # 16 and # 21). Because the Court concludes that the USCG's determination that Colbro is liable for the discharge is supported by substantial evidence in the administrative record, and that the assessment of the civil penalty is not an abuse of discretion, it upholds the USCG's decision. Accordingly, defendant's motion for summary judgment is granted (Docket # 16), and plaintiff's cross-motion (Docket # 21) is denied.

Background

The following facts are not seriously in dispute. Colbro is the operator and managing agent of the M/V Phoenix Spirit (hereinafter the "Phoenix Spirit"). (Docket # 1, at ¶ 1). On May 22, 1995, the USCG Marine Safety Office in Miami, Florida received notification from USCG Station Marathon that a one Michael Schrader, operator of the vessel Tracy Lynn, had witnessed an "all wh[i]t[e]" freighter vessel with a "red waterline" and "no name visible on the stern" dump trash into the United States' Exclusive Economic Zone (hereinafter "EEZ") off the coast of Florida. (Docket # 16, "Chronological Log of Case No. AN034," Enclosure No. 16 in Administrative Record No. MV95007099). The dumped trash consisted of "food, paper and plastic." (Id.). Based upon the offending vessel's general description and reported position, course and speed, the USCG conducted an investigation.

In the immediate vicinity where the alleged dumping occurred, USCG investigators found two vessels that matched the description of the offending vessel: the Tropic Lure and the Phoenix Spirit. There were two significant differences between these vessels. First, the Phoenix Spirit was white-hulled, whereas the Tropic Lure was grey-hulled. Second, the position of the Phoenix Spirit at the time of the alleged dumping was more consistent with the position of the offending vessel, as reported by Mr. Schrader, than the same relative position of the Tropic Lure. USCG investigators initially approached the Tropic Lure following alongside its course for a short while, but eventually let it go because the Phoenix Spirit's appearance and position at the time of the alleged dumping was more consistent with the information provided by Mr. Schrader. (Id., "Statement of USCG SN Adam B. Vernon," Enclosure No. 2; "Statement by USCG BM3 Todd E. Hartfiel," Enclosure 4). USCG investigators then boarded the Phoenix Spirit to inspect it.

The master of the vessel stated that there were seventeen people on board the Phoenix Spirit, and that he did not know of any one dumping garbage overboard. During the inspection, the USCG found an amount of garbage which it determined to be "insufficient," in relation to the size of the crew and the voyage's duration since the last port of call where garbage could have been discharged. (Id., "Details of the Charge"). Moreover, the master did not produce "any receipts for [the] last shoreside discharge nor receipts from any previous shoreside discharges." (Id.). The only documentation that the master of the vessel produced was a log entry for garbage delivered ashore five days earlier. (Id.). Also on board, the USCG found a white plastic bag in the wardroom mess, and various other containers partially filled with garbage mixed with plastic. (Id. Photograph No. 5, Enclosure No. 9). The USCG boarding team photographed all the garbage aboard the Phoenix Spirit, as well as the vessel itself.

Subsequently, Mr. Schrader positively identified the Phoenix Spirit as the transgressing vessel from the photograph taken by the USCG boarding team,¹ and gave a written statement concerning the incident that he had witnessed. In his written account, Mr. Schrader stated that he saw "one man throw a large white garbage bag off" a "a white cargo ship with red bottom paint and a black loading ramp on the stern[;]" that he approached said ship to "to inspect what had been tossed off" and found "a trail of garbage that came from a split open trash bag[;]" and that he recovered a "clear garbage lin[ ]er" containing "an empty alcohol bottle, a piece of banana, [and] a piece of manila envelope ... without any I.D. markings...." (Id., "Statement by Michael L. Schrader," Enclosure No. 1).²

All the aforementioned information was referred in the form of an official report to the USCG hearing officer. On December 11, 1995, the hearing officer notified Colbro³ of the initiation of civil penalty proceedings against it pursuant to 33 C.F.R. § 1.07, for the discharge of garbage mixed with plastic into the navigable waters of the United States. In the notice, Colbro was advised, inter alia, of the maximum ($25,000) and proposed ($10,000) penalties, and of its rights (a) to examine the case file, (b) to request a hearing or submit a written response, including any material or testimony to be considered, and (c) to be represented by counsel. Regarding the availability of a hearing, Colbro was advised of how to request it, and of the requirement to specify the issues to be raised. Finally, in regard to the size of the penalty, the hearing officer informed that his "preliminary review of the case file indicate[d] that a penalty of $10,000.00 [wa]s appropriate...." (Id., Letter from T.P. Talbot, Commander, U.S. Coast Guard, Hearing Officer, to Pitea Shipping Company Ltd. (Dec. 11, 1995)).

Colbro purportedly requested a hearing, although such request never materialized. (Id., Letter from W.J. Coleman, President, Colbro Ship Management Co., Ltd., to R.A. Blais, Commander U.S. Coast Guard (Aug. 15, 1996)).⁴ It also announced that it would formally request an opportunity to interview Mr. Schrader, but it never did. (Id., Letter from William J. Coleman, President, Colbro Ship Management Co., Ltd., to T.P. Talbot, Jr., Commander (Ajs), U.S. Coast Guard Atlantic Area (Feb. 20, 1996)). Also, Colbro never availed itself of the assistance of counsel during the proceedings. Colbro chose instead to correspond back and forth with the hearing officer denying liability and challenging the sufficiency of the evidence.⁵

After reviewing all the evidence in the administrative case file, the hearing officer determined that the Phoenix Spirit was responsible for the discharge of garbage mixed with plastic into the United States EEZ, and assessed a penalty in the amount of $10,000. (Id., Letter from R.A. Blais, Commander, U.S. Coast Guard, Hearing Officer, to Pitea Shipping Company, Ltd. (Aug. 7, 1996)). Colbro appealed the hearing officer's decision to the USCG Commandant, and on October 7, 1997, the USCG Commandant, through his designee, affirmed the decision by the hearing officer and denied Colbro's appeal. The Commandant also stated that his decision affirming the hearing officer's determination constituted the final agency action. (Id., Letter from David J. Kantor, Deputy Chief, by direction of the Commandant, Office of Maritime and International Law, to William J. Coleman, Colbro Ship Management Co., Ltd. (Oct. 7, 1997)). On January 23, 1998, Colbro filed this action seeking judicial review pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 702.

Standard of Review

The USCG found Colbro liable for the discharge of garbage mixed with plastic into the navigable waters of the United States in violation of the regulations for the implementation of the Act to Prevent Pollution from Ships ("APPS"), and Annexes I, II and V of the International Convention for the Prevention of Pollution from Ships of 1973, as modified by the Protocol of 1978 (MARPOL 73/78), 33 C.F.R. § 151.67, and imposed it a penalty of $10,000, as authorized by the APPS. See 33 U.S.C. § 1908. In so doing, the USCG acted pursuant to section 311(B)(6) of the Federal Water Pollution Control Act, commonly known as the Clean Water Act, 33 U.S.C. § 1321(b)(6) and 33 C.F.R. 1.07. The penalty at issue in this case is a class I civil penalty. See id.(B)(i).

Section 311(b)(6) of the Clean Water Act mandates that "[b]efore assessing a [class I] civil penalty ... the Administrator or the Secretary, as the case may be, shall give to the person to be assessed such a penalty written notice of the ... proposal to assess the penalty and the opportunity to request, within 30 days ... a hearing on the proposed penalty." 33 U.S.C. § 1321(b)(6)(B)(i). The statute makes clear, however, that "[s]uch hearing shall not be subject to section 554 or 556 of Title 5, but shall provide a reasonable opportunity to be heard and to present evidence." Id. In first instance, the USCG hearing officer's "decision to assess a penalty is based upon substantial evidence in the record." 33 C.F.R. § 1.07-65. The standard of judicial review under the Clean Water Act after the amendments introduced by the Oil Pollution Act of 1990, 104 Stat. 484, 533 (1990) is clear: "[The] court shall not set aside or remand such order unless there is not substantial evidence in the record, taken as a whole, to support the finding of a violation or unless the assessment of the penalty constitutes an abuse of discretion ..." 33 U.S.C. § 3121(b)(6)(G). Even before the...