U.S. v. Royal Caribbean Cruises, Ltd., 98-0103-CR.

Decision Date12 May 1998
Docket NumberNo. 98-0103-CR.,98-0103-CR.
Citation11 F.Supp.2d 1358
CourtU.S. District Court — Southern District of Florida
PartiesUNITED STATES of America v. ROYAL CARIBBEAN CRUISES LTD., a/k/a "Royal Caribbean International," Defendant.

Thomas Watts-Fitzgerald, Asst. U.S. Atty., Chief, Environmental Crimes Section, Miami, FL, Richard Udell, Mark Kappelhoff, Environmental Crimes Section, U.S. Department of Justice, Washington, DC, for U.S.

Norman Moscowitz, Bilzin, Sumberg, Dunn & Axelrod, LLP, Miami, FL, Benjamin Civiletti, Judson Staw, Joseph Block, Kenneth Bass III, Verable, Baetjer, Howard & Civiletti LLP, Washington, DC, for RCCL.

ORDER ON MOTION TO DISMISS

MIDDLEBROOKS, District Judge.

This Cause comes before the Court on Defendant's Motion to Dismiss, filed on March 25, 1998. The Court has reviewed the pertinent portions of the record and is otherwise fully advised in the premises. Defendant requested oral argument in this matter so that testimony from international law experts regarding the issues in this case could be fully developed on the record. We granted Defendant's request, and heard oral argument in this matter on April 22, 1998, and April 23, 1998.

Introduction

The Defendant, Royal Caribbean Cruises, Ltd., is accused in this case with the knowing use or presentation of a false writing, specifically an Oil Record Book for the cruise ship the Nordic Empress, during a United States Coast Guard inspection on February 1, 1993. This conduct is alleged to be in violation of Title 18 of the United States Code, section 1001, also known as the "False Statements Act." For the purposes of the Motion to Dismiss, we consider the facts as alleged in the Indictment.

On February 1, 1993, at approximately 3:00 a.m., a Coast Guard aircraft on patrol observed, via Forward Looking Infra-red Radar, the Nordic Empress discharging oil from the vessel. This discharge occurred in Bahamian waters, en route to the United States and the destination port of Miami, Florida. Upon its arrival into Miami, the Coast Guard conducted a document and safety inspection. During its review of the Oil Record Book, the Coast Guard observed that there was no entry indicating an overboard discharge of oil on February 1, 1993. Based upon the suspicion that an alleged discharge violation had occurred, the United States referred this matter to a representative of the government of Liberia via the Department of State. The referral letter addressed an "alleged discharge violation" but referred the Coast Guard Report in its entirety, including the reference to potential violations of the Oil Record Book, to Liberia. On February 10, 1994, Liberia filed its Determination that there was reasonable doubt that the Nordic Empress was in contravention of MARPOL and that it was "difficult" to respond to the allegations of "improperly recorded" Oil Record Book entries under the facts as presented, and recommended expunging the allegation. There was no appeal for reconsideration or review made to the International Maritime Organization pursuant to the protocol set forth in MARPOL.

The indictment in this case was returned on February 19, 1998. The Indictment charges a violation of 18 U.S.C. § 1001. In pertinent part, it charges that:

On or about February 1, 1993, in the port of Miami, within the Southern District of Florida, the defendant Royal Caribbean Cruises Ltd knowingly and wilfully used a false writing, in a matter within the jurisdiction of the United States Coast Guard, knowing the same to contain materially false, fictitious and fraudulent entries, to wit, an Oil Record Book for the Nordic Empress, that falsely represented that all overboard discharges of oil contaminated bilge waste occurred only after treatment of the bilge waste through 15 parts per million equipment, that is, the Oil Water Separator, and which failed to record the overboard discharge of oil contaminated bilge waste without the use of the Oil Water Separator. (Indictment, ¶ 8).

The instant Motion to Dismiss by RCCL was filed on March 25, 1998, based on both domestic and international law principles.

RCCL contends that prosecution of this matter is barred under domestic law for three reasons. First, Defendant argues that there cannot be a § 1001 False Statement Act prosecution for alleged omission of a record of a discharge occurring beyond the navigable waters of the United States. RCCL argues that the alleged false statement attending the oil discharge, made in Bahamian waters, was not within the jurisdiction of the Coast Guard; as a result, the necessary predicate for a § 1001 claim, a false statement over which there is jurisdiction, cannot be established. Second, Defendant contends that the penalty provisions of the Act to Prevent Pollution from Ships ("APPS"), codified at 33 U.S.C. § 1901 et seq, and the implementing regulations thereof, see 33 C.F.R. §§ 151.09(a)(5), 151.25, preclude prosecution under § 1001. Third, the Defendant contends that the principles of lenity, under which any ambiguities in the scope of penal provisions are resolved against the government, as well as fundamental concepts of due process and notice, should be applied to preclude this prosecution.

RCCL's Motion to Dismiss based upon international law is based upon the contention that prosecution is precluded by binding provisions of international law under both MARPOL (the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973) and UNCLOS (the Law of the Sea Convention of 1982). Defendant first argues that the relevant provisions of MARPOL require dismissal of this case, as domestic prosecution of the alleged fabrication of the Oil Record Book is properly addressed via an international regime mandating referral to the flag state, Liberia. Second, Defendant argues that this action violates UNCLOS. Defendant contends that UNCLOS applies to this action, either as a matter of collateral estoppel or customary international law, and that at least three provisions of UNCLOS are implicated by this prosecution: the international equivalent of a prohibition on double jeopardy contained within Article 228.1; the Article 228.2 three-year statute of limitations on proceedings to impose penalties on foreign vessels; and Article 218.2, which prohibits institution of proceedings with respect to a "discharge violation" unless requested by the flag state or a state damaged or threatened by the discharge. Finally, Defendant states that as a matter of policy, this prosecution is inconsistent with the principles of the Law of the Sea Convention, particularly with respect to the carefully negotiated allocation of jurisdiction, and allowing this case to proceed to trial would upset the international balance of the Convention. We will address each of these arguments in turn.

Analysis
I. Domestic Law and Applicability of 18 U.S.C. § 1001

Defendant's first contention is that the alleged false statement cannot be prosecuted under 18 U.S.C. § 1001 as there is no jurisdiction. A conviction for a violation of § 1001 requires, inter alia, that the statement is "within the jurisdiction of an agency of the United States." U.S. v. Calhoon, 97 F.3d 518, 523 (11th Cir.1996), citing U.S. v. Lawson, 809 F.2d 1514, 1517 (11th Cir.1987). In this case, the relevant agency is the Coast Guard. Defendant argues that because there is no U.S. authority to regulate the conduct at issue here, namely discharges occurring outside the navigable waters of the United States, the Oil Record Book and its entries — or lack thereof — are not within the jurisdiction of the United States, much less the Coast Guard.

Defendant also asserts that the absence of a legal duty to make entries in the Oil Record Book mandates dismissal as there can be no prosecution under § 1001 for false statement by omission or concealment when no such disclosure is required. RCCL points out that the only domestic statute requiring entries in Oil Record Book relating to discharges of oil is found in APPS. Under MARPOL, codified in U.S. law as APPS, RCCL argues that the duty to make entries regarding discharges of oil occurs at the time of the discharge, and the discharge in this case occurred more than 3 miles offshore. See 33 U.S.C. § 1907(a); MARPOL Annex 1, Regulation 20(2). APPS allows the United States to regulate foreign-flagged vessels only while in the navigable waters of the United States. 33 U.S.C. § 1902(a)(1). As a result, RCCL contends that the United States has no authority to regulate either the alleged February 1, 1993, unauthorized discharge from the Nordic Empress or any attendant Oil Record Book violations. Because the United States can impose no duty on RCCL to make any entry in the Nordic Empress' Oil Record Book with respect to the February 1, 1993, alleged discharge, it cannot prosecute RCCL for failure to comply with the putative duty in this case, the duty to make accurate Oil Record Book entries.

The government contends that the alleged violation is not discharging oil while at sea and failing to record the discharge at that time, it is the presentation of the materially false Oil Record Book to the United States Coast Guard while in port of Miami, Florida, which satisfies the § 1001 requirement that the act be "within the jurisdiction" of an agency of the government. The criminal conduct at issue in this case, according to the government, encompasses failing to record the alleged oil discharge, affirmatively recording false information about pollution discharge, and presenting the falsely recorded Oil Book Record while in port. Accordingly, the government contends that jurisdiction exists under § 1001, and that as the Coast Guard is authorized to enforce any violation of United States law, including § 1001 and APPS pursuant to the provisions of 14 U.S.C. § 89(a), this prosecution is appropriate.

We first start with the premise that jurisdiction based upon §...

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