United States v. Empire Bulkers Ltd.
| Decision Date | 03 February 2022 |
| Docket Number | CRIMINAL ACTION NO: 21-126 |
| Citation | 583 F.Supp.3d 746 |
| Parties | UNITED STATES of America v. EMPIRE BULKERS LTD., Joanna Maritime Limited, and Warlito Tan |
| Court | U.S. District Court — Eastern District of Louisiana |
Kenneth E. Nelson, Assistant U.S. Attorney, Environmental Crimes Section, Richard Allen Udell, Assistant U.S. Attorney, US DOJ Environment Division, Washington, DC, Dall Kammer, Assistant U.S. Attorney, U.S. Attorney's Office, New Orleans, LA, for United States of America.
IT IS HEREBY ORDERED that the Motion to Dismiss Count 1 (Rec. Doc. 43) filed by Warlito Tan is DENIED ;
IT IS FURTHER ORDERED that the Motion to Dismiss Count 4 (Rec. Doc. 44) filed by Warlito Tan is DENIED ;
IT IS FURTHER ORDERED that the Motion to Strike Surplusage from the Indictment (Rec. Doc. 45) filed by Empire Bulkers, Ltd., and Joanna Maritime Limited ("organizational defendants") is DENIED ;
IT IS FURTHER ORDERED that the Motion to Dismiss Indictment Due to Constitutional and Statutory Violations (Rec. Doc. 66) filed by Warlito Tan is DENIED .
This case stems from the United States Coast Guard's ("Coast Guard's") findings in an inspection of the MV JOANNA ("JOANNA"), a 23,494 gross-ton bulk cargo carrier registered in the Marshall Islands. On March 6, 2021, the JOANNA arrived at the Port of New Orleans, Louisiana. The Coast Guard conducted a Port State Control inspection of the ship on March 11, 2021. During the inspection, the Coast Guard discovered a concealed modification to a valve handle for the Oil Content Meter (hereinafter, sometimes "OCM") which had been made prior to the vessel's arrival in New Orleans. The modification prevented the sensor from analyzing a true sample of overboard discharges, so that the discharged effluent would appear to have a lower concentration of oil, making it permissible to discharge it under applicable regulations.
The Oil Content Meter electronically records data of past operations and stores it on a data card. The Coast Guard seized the Oil Content Meter and data card and had it analyzed by the OCM vendor and a government expert. The recorded data was consistent with the use of the unauthorized modification of the Oil Content Meter valve handle and inconsistent with proper operation. The modification to the Oil Content Meter made the actual concentration of oil discharged overboard impossible to determine. However, it is the government's position that the copious amounts of oil that were found inside the Oily Water Separator (hereinafter, sometimes "OWS") and overboard piping, strongly suggest that oil was discharged in greater concentrations than permitted by applicable law.
The vessel's Oil Record Book (hereinafter, sometimes "ORB") contains no entries indicating that discharges were made without the proper use of the Oil Content Meter. The entries indicate that overboard discharges occurred on November 10, 2020, January 16, 2021, and February 23, 2021, using a properly functioning Oil Content Meter. The Third Engineer has testified that Chief Engineer, defendant Warlito Tan, made all of the entries and directed him to countersign them.
During the inspection of the vessel, the Coast Guard inspectors also noted items that they considered hazardous conditions that could affect the vessel's safety, related to the pre-heaters that heat the marine bunker oil burned on the high seas, which require pressure relief valves because they use steam. The specific problems noted were: the discharge line downstream from the fuel-oil pre-heaters and pressure relief valves was disconnected and crimped closed, disabling the pressure relief valves and rendering them inoperable; a pressure relief valve on a fuel oil pre-heater was not working properly; and there was an active fuel oil leak from the fuel oil pre-heaters and pressure relief valves. At the time of the inspection, because it was in port, the JOANNA was utilizing diesel fuel which does not require pre-heating. The fuel was running through the pre-heaters, but was not receiving steam or being heated. At the time of the Coast Guard's discovery of the leak, a temporary repair had recently been made by the crew.
The indictment alleges that Warlito Tan, and vicariously, Joanna Maritime and Empire Bulkers Ltd. ("Empire"), committed four crimes: failure to maintain an accurate Oil Record Book for the JOANNA while in the Port of New Orleans, obstruction of agency proceeding, obstruction of justice, and failure to immediately notify the U.S. Coast Guard Sector of an alleged hazardous condition experienced aboard the JOANNA when the vessel was in the United States.
In the instant motion, the defendants have moved to dismiss Counts One and Four of the indictment, moved to dismiss the indictment in its entirety, and moved to strike surplusage in the indictment.
An indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." FED. R. CRIM. P. 7(c)(1). An indictment is sufficient if it: "first ... contains the elements of the offenses charged and fairly informs a defendant of the charge against which he must defend, and, second ... enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Resendiz–Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007) (quotations omitted). Generally, an indictment that tracks the statutory language of the charged offense is constitutionally sufficient, as long as the statutory language unambiguously sets out all of the necessary elements of the offense. See e.g., U.S. v. Hagmann, 950 F.2d 175, 183 (5th Cir. 1991) ; U.S. v. Gordon, 780 F.2d 1165, 1169 (5th Cir. 1986). Dismissal of an indictment is limited to "extraordinary situations". United States v. McFadden, 59 F.3d 1243, n. 4 (5th Cir. 1995). When considering a motion to dismiss an indictment, the court must accept the allegations in the indictment as true. Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952).
The United States is a signatory to the 1973 International Convention for the Prevention of Pollution from Ships, as amended in 1978. 1340 U.N.T.S. 184; 1340 U.N.T.S. 61. These treaties are collectively called "MARPOL," an abbreviation for maritime pollution, and their purpose is to "achieve the complete elimination of international pollution of the marine environment by oil and other harmful substances." 1340 U.N.T.S. at 128.
To implement MARPOL, Congress enacted the Act to Prevent Pollution from Ships ("APPS"), 33 U.S.C. § 1901 et seq. "The APPS prohibits violations of MARPOL, the APPS, and the regulations promulgated pursuant to [ 33 U.S.C.] § 1903(b)." United States v. Jho, 534 F.3d 398, 401 (5th Cir. 2008). The APPS authorizes the United States Coast Guard to "prescribe any necessary or desired regulations to carry out the provisions of ... MARPOL." 33 U.S.C. § 1903(c)(1) ; see also 33 C.F.R. § 151.01 et seq.
MARPOL and federal law both require all oceangoing ships exceeding 400 gross tons to maintain an Oil Record Book, kept "readily available for inspection at all reasonable times." 33 C.F.R. §§ 151.25(a), (I). "Disposal of oil residue" or "[d]ischarge overboard or disposal otherwise of bilge water that has accumulated in machinery spaces" are required to be recorded in the Oil Record Book. 33 C.F.R. §§ 151.25(d)(3)-(4). "The master or other person having charge of a ship required to keep an Oil Record Book shall be responsible for the maintenance of such record." 33 C.F.R. § 151.25(j). The APPS and its regulations apply to foreign-flagged vessels only when they are "in the navigable waters of the United States, or while at a port or terminal under the jurisdiction of the United States." 33 C.F.R. § 151.09(a)(5) ; see also 33 U.S.C. § 1902(a)(2).
The Ports and Waterways Safety Act of 1972 ("PWSA"), 46 U.S.C. § 70001 et seq., was originally enacted in response to a 1967 oil spill off the coast of England. United States v. Locke, 529 U.S. 89, 101, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000). Its main purposes were reducing the possibility of vessel or cargo loss, protecting the marine environment, preventing damage to structures on or adjacent to navigable waters, and ensuring that vessels complied with applicable standards for safety and operation. 33 U.S.C. § 1221(c) (repealed 2018).1 It provides for criminal penalties for violations of the PWSA. 46 U.S.C. § 70036(b).
Count One charges defendants with a knowing violation of the APPS while in U.S. waters. The indictment charges:
On or about March 11, 2021, at the Port of New Orleans, and within the Eastern District of Louisiana, and elsewhere [the Defendants] did knowingly fail and cause the failure to maintain an accurate ORB for the MV JOANNA, in which quantities of oil residue, oily mixtures, and machinery space bilge water, and the discharge and disposal of these substances, were fully and accurately recorded, as required. Specifically, during the period of on or about October 25, 2020, through on or about March 11, 2021, the Defendants [(1)] falsely recorded and caused to be falsely recorded that discharges of oily bilge water had been made through a properly functioning OWS and OCM when they had not, and (2) failed to record exceptional discharges of oily bilge water made without the use of a properly functioning OWS and OCM, in violation of Title 33, United States Code, Section 1908(a), Title 18, United States Code, Section 2(b), and Title 33, Code of Federal Regulations, Section 151.25.
Chief Engineer Tan has moved to dismiss Count One arguing that chief engineers on foreign-flagged vessels in U.S. waters cannot be prosecuted for having previously failed to maintain an oil record book, because pursuant to 33 C.F.R. § 151.25(j) that duty is statutorily assigned exclusively to the ...
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