United States v. Pena, 10–15928.

Decision Date20 June 2012
Docket NumberNo. 10–15928.,10–15928.
Citation23 Fla. L. Weekly Fed. C 1171,684 F.3d 1137
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Hugo PENA, Defendant–Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

OPINION TEXT STARTS HERE

Jaime A. Raich, Wifredo A. Ferrer, Laura Thomas Rivero, Kathleen Mary Salyer, Anne Ruth Schultz, U.S. Attys., Miami, FL, Phillip Drew DiRosa, U.S. Atty., Fort Lauderdale, FL, for PlaintiffAppellee.

Ira Norman Loewy, I, Shohat, Loewy & Shohat, Philip Robert Horowitz, Law Office of Philip R. Horowitz, Miami, FL, for DefendantAppellant.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA, Chief Judge, and ANDERSON and KLEINFELD,* Circuit Judges.

ANDERSON, Circuit Judge:

This case presents an issue of first impression in this Circuit and, to the best of our knowledge, in the country. We are asked to determine whether the United States has jurisdiction to prosecute a nominated surveyor—i.e., a person who conducts a MARPOL survey on behalf of a foreign nation—for knowingly violating the MARPOL treaty while aboard a foreign vessel docked in the United States.1 Defendant Hugo Pena argues that under MARPOL it is the responsibility of the Flag State to conduct surveys and issue certificates, and therefore only the Flag State has jurisdiction to prosecute a surveyor for failure to conduct a proper MARPOL survey. We disagree. After thorough review of the relevant treaty and U.S. law, we hold that the United States has jurisdiction to prosecute surveyors for MARPOL violations committed in U.S. ports. Furthermore, under our lenient standards of review for issues raised for the first time on appeal, we find no reversible error in the indictment or jury instructions. Finally, we affirm the district court's denial of judgment of acquittal. Accordingly, we affirm Pena's conviction.

I. BACKGROUND
A. Background Law

MARPOL is the common name for the International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, as modified by the Protocol of 1978, opened for signature Feb. 17, 1978. 1340 U.N.T.S. 62 [hereinafter MARPOL]. This multilateral maritime treaty aims “to achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and the minimization of accidental discharge of such substances.” Id. at 184. MARPOL is not a self-executing treaty; instead, each party agrees to “give effect” to it by establishing rules for ships that fly its flag, certifying that such ships comply with the treaty rules, and sanctioning those ships that violate the treaty. MARPOL arts. 1(1), 4(1), 5(1); see United States v. Ionia Mgmt. S.A., 555 F.3d 303, 307 (2d Cir.2009). As relevant to this case, both the United States and the Republic of Panama are signatories to the treaty. The Act to Prevent Pollution from Ships (“APPS”), 33 U.S.C. § 1901 et seq., implements MARPOL and authorizes the U.S. Coast Guard to issue regulations implementing the requirements of the treaty. See33 U.S.C. § 1903(c)(1); 33 C.F.R. § 151.01 et seq.

Annex I to MARPOL sets forth regulations for the prevention of pollution by oil from ships. Annex I prohibits a ship from dumping its bilge water2 into the ocean unless the oil content of that water has been reduced to less than 15 parts per million (“ppm”). Reg. 15.2, Resolution MEPC.117(52), Amendments to the Annex of the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973, Oct. 15, 2004 (entered into force Jan. 1, 2007) [hereinafter Annex I]. To reduce the oil content to permissible levels, the bilge water must be pumped through a piece of equipment that filters the oil out of the water, commonly called an “oily water separator.” See id. reg. 14.6. Annex I requires all ships of 400 gross tonnage and above to have a functioning oily water separator and to use it to filter the bilge water before it is discharged into the ocean. Id. regs. 14.1, 15.2. If a ship's bilge water is not filtered through an oily water separator to reduce the oil content to permissible levels, then the bilge water must be collected and retained in tanks on the ship and discharged at a proper facility once the ship arrives in port. Id. reg. 15.9.

It is the responsibility of the Flag State to certify that ships sailing under its authority (or “flag”) comply with international laws such as MARPOL. Id. regs. 6.3.1, 6.3.4. With respect to the prevention of oil pollution, the Flag State conducts an inspection, or “survey,” and certifies the ship's compliance by issuing an International Oil Pollution Prevention (“IOPP”) Certificate. Id. regs. 6.1, 6.3.1, 7.

The Flag State may delegate the authority to conduct the survey and to issue the IOPP Certificate to a recognized “classificationsociety,” which is an organization that inspects the vessels and issues the certificates on the Flag State's behalf. Id. reg. 6.3.1. The person employed by the classification society to conduct the survey and issue the certificate on behalf of the Flag State is known as a “surveyor.” Id.

A surveyor nominated by a foreign nation has the following duties under MARPOL.3 First, when conducting an “initial survey” of a ship, he shall conduct a complete survey of the structure and equipment “such as to ensure that the structure, equipment, systems, fittings, arrangements and material fully comply with the applicable requirements” of Annex I. Id. reg. 6.1.1. Similarly, when conducting a “renewal survey,” he shall “ensure that the structure, equipment, systems, fittings, arrangements and material fully comply with the applicable requirements” of Annex I. Id. reg. 6.1.2. After conducting an initial or renewal survey in accordance with the provisions of Regulation 6, the surveyor shall issue or endorse an IOPP Certificate. Id. reg. 7. When the nominated surveyor determines that the condition of the ship does not correspond to the IOPP Certificate or is not fit to go to sea, he shall immediately ensure that corrective action is taken and shall in due course notify the Flag State. Id. reg. 6.3.3. If corrective action is not taken, he shall withdraw the IOPP Certificate and notify the Flag State as well as the authorities of the Port State. Id. Upon receiving, from the master or owner of a ship, a report of an accident or defect, the nominated surveyor shall investigate to determine if a survey is necessary and shall ascertain that the master or owner has also reported to the appropriate authorities of the Port State. Id. reg. 6.4.3.

The IOPP Certificate must be maintained by the ship's master on board the vessel. See MARPOL art. 5(2). If a ship does not have a valid IOPP Certificate on board, it is not permitted to set sail or enter the ports of other signatory nations. See id.

“Port States”—nations visited by commercial ships—may inspect the vessels entering their waters and ports to ensure compliance with MARPOL regulations. Id. arts. 5(2), 6(2). An inspection of a foreign vessel by a Port State is called a “port state control examination.” In the United States, the Coast Guard is charged with conducting port state control examinations to ensure that all commercial vessels entering the United States comply with MARPOL. 33 C.F.R. § 151.23.

B. Factual and Procedural History

On May 4, 2010, the Coast Guard conducted an unannounced port state control examination of the motor vessel Island Express I (“ Island Express”), which was docked at a port just south of Fort Lauderdale, Florida. The ship was in the process of changing its flag from St. Kitts and Nevis to Panama. The Coast Guard inspected the ship's documents, including its IOPP Certificate. The IOPP Certificate, dated April 15, 2010, stated that it was issued in Fort Lauderdale, Florida, by the classification society Universal Shipping Bureau on behalf of the Republic of Panama. Hugo Pena was the “attending surveyor” who conducted the April 15, 2010, survey and signed the IOPP Certificate.

As stated on the top of the Certificate itself, Pena issued the IOPP Certificate “under the provisions of” MARPOL. On the first page of the IOPP Certificate, Pena expressly certified: (1) that the ship had been surveyed in accordance with Regulation 44 of Annex I of MARPOL; and (2) that the survey showed that the structure, equipment, systems, fittings, arrangement, and material of the ship and the condition thereof were in all respects satisfactory and that the ship complied with the applicable requirements of Annex I. Pena further certified that the Island Express was equipped with [o]il filtering (15 ppm) equipment with alarm and automatic stopping device.” Finally, Pena certified that the IOPP Certificate was “correct in all respects.” Pena did not note any conditions or deficiencies on the IOPP Certificate indicating any violations on the Island Express.

Upon further inspection, the Coast Guard examiner discovered that the oily water separator did not operate at all and that the ship did not have a bilge holding tank for storing its bilge water for later disposal at a port facility. Instead, the ship had a makeshift system of pumps and rubber tubes designed to pump oily waste from the ship's bilge directly up to the main deck of the ship, where it could flow overboard into the ocean. Although this system of portable pumps and tubes was not part of the ship's standard equipment or an approved modification, Pena made no mention of the pumps and tubing in the IOPP Certificate that he had issued just nineteen days earlier. Furthermore, Pena had not attached any conditions to the IOPP Certificate requiring the repair of the oily water separator or the proper management of the ship's bilge water.

When questioned by the Coast Guard examiners, Pena admitted that he had not tested the oily water separator when he conducted the April 15 survey because the ship's chief engineer had told him that it did not work. Pena further admitted that he had authorized the chief...

To continue reading

Request your trial
45 cases
  • United States v. DSD Shipping
    • United States
    • U.S. District Court — Southern District of Alabama
    • September 2, 2015
    ...that bilge water so that it does not rise to a level where it endangers the safety of the vessel and its crew." United States v. Pena, 684 F.3d 1137, 1142 (11th Cir. 2012). 3. Port State Control examinations are specifically authorized by 33 C.F.R. § 153.23(a)(3), which allows the Coast Gua......
  • Wilmina Shipping As v. U.S. Dep't of Homeland Sec.
    • United States
    • U.S. District Court — District of Columbia
    • March 27, 2013
    ...environment by oil and other harmful substances and the minimization of accidental discharge of such substances.” U.S. v. Pena, 684 F.3d 1137, 1142 (11th Cir.2012), citing MARPOL, Nov. 2, 1973, modified by the Protocol of 1978, opened for signature Feb. 17, 1978. 1340 U.N.T.S. 62, 184. Both......
  • Watervale Marine Co. v. U.S. Dep't of Homeland Sec.
    • United States
    • U.S. District Court — District of Columbia
    • July 18, 2014
    ...Wilmina Shipping AS v. U.S. Dep't of Homeland Sec. (Wilmina Shipping II ), 934 F.Supp.2d 1, 6 (D.D.C.2013) (quoting United States v. Pena, 684 F.3d 1137, 1142 (11th Cir.2012) ); see also 33 U.S.C. § 1901(a)(4). The treaty, which the United States entered into along with other foreign nation......
  • Angelex Ltd. v. United States
    • United States
    • U.S. District Court — District of Columbia
    • September 28, 2017
    ...Shipping AS v. U.S. Dep't of Homeland Sec . (Wilmina Shipping II ), 934 F.Supp.2d 1, 6 (D.D.C. 2013) (quoting United States v. Pena , 684 F.3d 1137, 1142 (11th Cir. 2012) ); see also 33 U.S.C. § 1901(a)(4). In furtherance of that goal, MARPOL requires that a vessel only discharge oily water......
  • Request a trial to view additional results
2 books & journal articles
  • Admiralty
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 64-4, June 2013
    • Invalid date
    ...Chandris, 515 U.S. at 368). 118. Id. (quoting Chandris, 515 U.S. at 371).119. Id. at 33.120. Id. at 34-35.121. Id.122. Id. at 35.123. 684 F.3d 1137 (11th Cir. 2012).124. International Convention for the Prevention of Pollution from Ships (MARPOL), International Maritime Organization, http:/......
  • OIL POLLUTION VIOLATIONS AND ENFORCEMENT: WHO IS RESPONSIBLE FOR MAINTAINING THE OIL RECORD BOOK?
    • United States
    • Loyola Maritime Law Journal Vol. 17 No. 2, June 2018
    • June 22, 2018
    ...of oil and seawater that has dripped or leaked to the bottom of a ship that must be discharged periodically. United States v. Pena, 684 F.3d 1137, n. 2 (11th Cir. (2) Mainly in violation of the International Convention for the Prevention of Pollution from Ships. (3) United States v. Fafalio......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT