U.S. v. Royal Caribbean Cruises, Ltd.

• Citation: 24 F.Supp.2d 155
• Decision Date: 19 September 1997
• Docket Number: Criminal No. 96-0333(PG).
• Parties: UNITED STATES of America, Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., Henry Ericksen and Svenn Rikard Roeymo, Defendants.
• Court: United States District Courts. 1st Circuit. District of Puerto Rico

24 F.Supp.2d 155

UNITED STATES of America, Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., Henry Ericksen and Svenn Rikard Roeymo, Defendants.

Criminal No. 96-0333(PG).

United States District Court, D. Puerto Rico.

September 19, 1997.

COPYRIGHT MATERIAL OMITTED

Jorge E. Vega-Pacheco, Asst. U.S. Attorney, Hato Rey, PR, for Plaintiff.

Judson M. Starr, Washington, DC, Joaquin Monserrate-Penagaric, San Juan, PR, Joseph G. Block, Washington, DC, Jeffrey B. Crockett, Aragon, Burlington, Weil & Crockett, Miami, FL, Jose R. Aguayo, Hato Rey, PR, for Defendant.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

This matter is before the court on six motions to dismiss one or more of the ten counts of the indictment against defendants Royal Caribbean Cruises, Ltd. (hereinafter RCCL), Henry Ericksen and Svenn Rikard Roeymo. Defendant RCCL moves for the dismissal of counts one through six for lack of jurisdiction pursuant to Rule 12(b)(1), Federal Rules of Criminal Procedure. (Docket No. 42.) RCCL further moves for the dismissal of count two of the indictment as a violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. (Docket No. 49.) In three separate motions, RCCL seeks the dismissal of counts three (Docket No. 43), counts four through six (Docket No. 44), and count ten (Docket No. 46) for failures to allege an offense. RCCL seeks the dismissal of counts five and six based upon the "exculpatory no" exception to the false statements statute. (Docket No. 48.) RCCL further moves the court to compel the government to elect between the prosecution of either count eight or count nine of the indictment on the grounds that these counts are duplicitous. (Docket No. 47.) Finally, defendant RCCL seeks vindication of its Fourth Amendment rights under Rule 12(b)(3), Federal Rules of Criminal Procedure, in the form of exclusion of evidence allegedly obtained through illegal searches and seizures. (Docket No. 45.) The court must also consider two motions by defendant Ericksen: one for leave to appear specially to move to dismiss counts six through eight (Docket No. 59) and one to join defendant RCCL's motion to dismiss counts one through six for lack of jurisdiction. (Docket Nos. and 42.) Co-defendant Ericksen also moves for leave to file a reply memorandum. (Docket No. 71.) See Local Rules 311(7), 406(1). The request is denied. Fed .R.Crim.P. 43(a).

Motions in criminal actions shall be filed within 15 days following arraignment. See Local Rule 406(2). There are three exceptions to this mandate in the local rule, one of which might arguably apply in this case. The court, for good cause shown, may vary the terms of the filing of the motions. Good cause has not been shown by the attorneys attempting to represent Henry Ericksen. The argument tendered to the court by counsel is one of convenience, lacking not only substance but merit. An arrest warrant is outstanding for Henry Ericksen. Such a warrant is the vehicle with which criminal defendants not willing to present themselves physically in court are brought to court. Counsel cannot require the court to perform futile acts, such as to rule upon matters which are academic and which depend completely upon the volition of a wilfully absent defendant. I need not add another hue unto the rainbow. William Shakespeare, King John act 4, sc. 2. Henry Ericksen, defendant, will have his motions considered after he is arraigned. The motion to appear specially is denied.

I. FACTUAL BACKGROUND

According to what the United States intends to prove, on October 25, 1994 the cruise ship Sovereign of the Seas was observed by United States Coast Guard personnel discharging pollutants, later determined to be part of about 30 gallons of oil, into the territorial sea of the United States off the coast of San Juan, Puerto Rico. In port at San Juan, United States Coast Guard personnel conducted a pollution investigation in which oil samples were extracted from the Sovereign of the Seas engine room. These samples later provided a "fingerprint match" to samples removed from the site of the October 25, 1994 spill. During the course of the in port pollution investigation the United States Coast Guard interviewed crew members of the ship and examined the ship's Oil Record Book.

Defendant RCCL is a Miami-headquartered corporation although it is incorporated in Liberia. RCCL operates and controls a fleet of cruise ships, among them the Sovereign of the Seas. All of the ships in the RCCL fleet are owned by separate, whollyowned subsidiaries of RCCL, the parent corporation. Miami, Florida is the home port of the Sovereign of the Seas which routinely stops at the ports of San Juan, Puerto Rico and St. Thomas, Virgin Islands. All ships in the RCCL fleet are subject to regular inspections by the United States Coast Guard. The Sovereign of the Seas flies the flag of Norway.

Defendant Henry Ericksen was Chief Engineer aboard the Sovereign of the Seas on October 25, 1994. As Chief Engineer he was responsible for the operations of the engine department. Defendant Svenn Rikard Roeymo served as First Engineer aboard the Sovereign of the Seas on October 25, 1994. As First Engineer he was responsible for overseeing daily engine room operations and for the immediate supervision of the engine room crew.

The indictment against the defendants consists of ten counts. (Docket No. I.) Count One charges defendants RCCL and Roeymo with conspiracy to discharge harmful quantities of oil into the navigable waters of the United States in violation of 33 U.S.C. § 1319(c) and § 1321(b)(3). Count One also charges defendants RCCL and Roeymo with conspiracy to use false writings in violation of 18 U.S.C. § 1001. Count Two charges defendant RCCL with knowingly discharging a harmful quantity of oil into the navigable waters of the United States in violation of 33 U.S.C. § 1319(c)(2)(A) and § 1321(b)(3). Count Three charges defendant RCCL with a failure to report harmful discharges to the appropriate United States agency in violation of 33 U.S.C. § 1321(b)(5). Count Four charges defendant RCCL with knowingly and wilfully using a false writing to make a false statement to the United States Coast Guard in the form of a falsified Oil Record Book representing that no discharges of contaminated bilge waste were made without the use of the Oil Water Separator in violation of 18 U.S.C. § 1001. Count Five charges defendants RCCL and Roeymo with knowingly and willfully making false statements to a United States Coast Guard official in violation of 18 U.S.C. § 1001, by claiming that waste oil found under the Oil Water Separator on the Sovereign of the Seas came from a blown seal on a fuel oil purifier, when the defendants knew this statement was false. Count Six charges defendants RCCL and Ericksen with knowingly and wilfully making false statements to a United States Coast Guard Official in violation of 18 U.S.C § 1001, by stating that the Oil Water Separator on board the Sovereign of the Seas was working properly when the defendants knew in fact that it was not. Counts Seven and Eight charge defendants RCCL and Ericksen with witness tampering in violation of 18 U.S.C. § 1512(b)(3) and § 1512(b)(1). Count Nine charges defendants RCCL and Roeymo with witness tampering in violation of 18 U.S.C. § 1512(b)(1). Finally, Count Ten charges defendants RCCL and Roeymo with obstruction of justice in violation of 18 U.S.C. § 1512(b)(2)(B).

II. DEFENDANT RCCL'S MOTION TO DISMISS COUNTS ONE THROUGH SIX FOR LACK OF JURISDICTION

RCCL contends that jurisdiction over the charges properly rests with Norway and not the United States pursuant to the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships (hereinafter MARPOL) and the United Nations Law of the Sea Convention of 1982 (hereinafter UNCLOS). RCCL maintains, and the court agrees, that counts one through six, for purposes of determining jurisdiction, rely on a single discharge of oil from the Sovereign of the Seas cruise ship on October 25, 1994. RCCL further maintains, and the court agrees, that under applicable treaties and binding customary international law, the United States is limited to the imposition of monetary penalties for violations of its pollution control laws involving non-serious discharges of pollutants within the territorial sea of the United States. RCCL maintains that, as the United States, through the Coast Guard, has imposed a $4,000 administrative penalty for the October 25 incident, which was promptly paid by RCCL, the imposition of further penalties contravenes international law. This final contention is not persuasive.

The Water Pollution Prevention and Control Act, 33 U.S.C. § 1251 et. seq., provides for the imposition of criminal penalties in the form of a fine not to exceed $10,000 or by imprisonment for not more than six months, for keeping false records of a ship's pollution activity or for tampering with a ship's oil water separator. 33 U.S.C. § 1319(c)(2). The Water Pollution and Control Act further provides a penalty not to exceed an additional $10,000 or imprisonment of not more than a year for failure to notify the appropriate government agency of any spills or discharges of oil within the navigable waters of the United States. 33 U.S.C. § 1321(b)(5). The charge of conspiracy carries with it a fine and/or five years imprisonment. 18 U.S.C. § 371. Fraud has a maximum fine of $10,000 and/or five years imprisonment. 18 U.S.C. § 1001. The tampering charge carries a fine and/or ten years imprisonment. 18 U.S.C. § 1512(b).

Matters of pollution by foreign vessels within the territorial sea of the United States are governed by UNCLOS. Although the treaty arising from the convention is currently pending ratification before the Senate, it nevertheless carries the weight of law from the date of its submission by the President to the Senate. See Article 19 of the Vienna Convention on the Law...