Wilmina Shipping As v. U.S. Dep't of Homeland Sec.

• Decision Date: 27 March 2013
• Docket Number: Civil Action No. 11–2184 (ABJ).
• Citation: 934 F.Supp.2d 1
• Parties: WILMINA SHIPPING AS, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

934 F.Supp.2d 1

WILMINA SHIPPING AS, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Civil Action No. 11–2184 (ABJ).

United States District Court, District of Columbia.

March 27, 2013.

William Bruce Pasfield, Alston & Bird LLP, Washington, DC, Brian T. McCarthy, Michael G. Chalos, Chalos, O'Connor LLP, Port Washington, NY, for Plaintiffs.

Michael Anthony Dilauro, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

This case concerns the scope of the U.S. Coast Guard's authority to ban a foreign ship from U.S. waters when it finds that the ship has violated provisions of federal environmental laws and international environmental treaties. Plaintiffs Wilmina Shipping AS and Wilhelmsen Marine Services AS own and operate the M/T Wilmina, a Norwegian-flagged oceangoing tank vessel. In May 2010, the Coast Guard conducted an investigation of the Wilmina while it was docked at the Port of Corpus Christi and found certain of the ship's pollution control devices to be inoperable or disarmed in violation of U.S. laws and international treaties. As a result, on May 21, 2010, the Coast Guard revoked the ship's certificate of compliance, which a foreign tanker vessel must have to operate in U.S. waters. The Coast Guard further ordered that after the Wilmina left the Port of Corpus Christi, it could not enter any U.S. port or U.S. waters again for three years or until after the ship had developed and implemented an Environmental Compliance Plan (“ECP”) acceptable to the Coast Guard, and it had experienced a year of satisfactory audits.

Plaintiffs challenge the order, alleging that the Coast Guard lacked the statutory authority to issue it and that the Coast Guard failed to provide due process of law before revoking the certificate of compliance. They also challenge the agency's findings on the merits, arguing that the decision was arbitrary and capricious and improperly based upon information provided by an unreliable whistleblower. The Court deferred consideration of those issuesuntil after the question of the scope of the agency's authority had been resolved.

Defendants filed a motion for summary judgment, and plaintiffs filed a cross-motion for summary judgment. Plaintiffs ask the Court to vacate the order, enjoin the Coast Guard from excluding the Wilmina from U.S. waters, and enjoin it from withholding the certificate of compliance.

The Court holds that the Coast Guard has the authority to set forth conditions for the restatement of a certificate of compliance, including the sorts of conditions it ordered for the Wilmina. Under the terms of the statute that governs these vessels, the Coast Guard is required to inform vessel owners of the steps they must take to bring their ships into compliance. But the Coast Guard does not have the statutory authority to exclude a ship from U.S. waters for a term of years as an alternative to specifying conditions for reinstatement of the certificate. The Court also finds that the Coast Guard did not violate plaintiffs' due process rights when it revoked the ship's certificate without a pre-deprivation hearing. Accordingly, the Court grants the defendants' motion for summary judgment in part and denies it in part, and it grants plaintiffs' cross-motion for summary judgment in part and denies it in part.

BACKGROUND

The M/T Wilmina is a Norwegian-flagged oceangoing tank vessel. Defs.' Mot. for Summ. J. [Dkt. # 13] (“Defs.' Mot.”) at 1; Pls.' Opp. to Defs.' Mot. for Summ. J. and Cross–Mot. for Summ. J. [Dkt. # 20] (“Pls.' Mot.”) at 3. On May 3, 2010, the day before the Wilmina was scheduled to dock at the Port of Corpus Christi, a former member of the ship's engine department, Robert Pabillar, contacted the Coast Guard and reported that the ship's crew had bypassed its pollution control equipment and discharged oily bilge waste directly overboard. ¹ Pls.' Mot. at 3. When the Wilmina arrived the next day, the Coast Guard boarded the vessel and conducted a Port State Control Inspection. Id. at 3–4, citing Port State Control Report of Inspection (“First Rep. of Inspection”) at Administrative Record (“AR”) 3.² The Coast Guard identified three deficiencies unrelated to the Wilmina's pollution control devices, and it issued a certificate of compliance. First Rep. of Inspection, AR 3–4; Certificate of Compliance, AR 5–6.

The certificate states that “the ship has been examined and found to be in compliance with all applicable U.S. and international marine safety and environmental protection standards.” Certificate of Compliance, AR 5. The second page of the certificate includes a “Notice to Mariners” that warns:

For tank ships only: For this Certificate of Compliance to remain in effect, the vessel shall be maintained to the safety and construction standards as examined for compliance with applicable marine safety and environmental protection laws and international conventions.

Id. at AR 6. It further provides that “[e]ntries shall be made on this certification in accordance with current instructions for the following types of foreign vessel examinations: ... Other compliance examinations (i.e.—MARPOL, Ballast Water, etc.) or Deficiency checks.” Id.

Later that same evening, the Coast Guard re-boarded the vessel to conduct an investigation of Pabillar's allegations. Pls.' Mot. at 4. This time, it identified a number of deficiencies with the ship's pollution control equipment that violated the International Convention to Prevent Pollution from Ships (“MARPOL”). Port State Control Report of Inspection (“Second Rep. of Inspection”), AR 7–9. The deficiencies cited in the report included the facts that: the ship's oily water separator, a device used to remove oil from the ship's bilge water, was inoperable; a discharge pipe, which was supposed to run between the oily water separator and through the ship's hull, had been removed; and parts of the oily water separator were found in a chemical locker. Id. The Coast Guard also found that the ship failed to maintain engine room alarms, which were supposed to sound if the pollution control equipment detected a certain level of oil in the water to be discharged. Id. Finally, it found that the ship failed to maintain proper records in its oil record book. Id.

On May 21, 2010, the Coast Guard issued the Captain of the Port Order No. 093–10 (the “Order”), AR 1–2, that prompted this litigation. The Order listed deficiencies with the ship's pollution control equipment and record keeping, specifically, “inconsistencies in the ship's oil record book, inoperable oily water separating equipment, oily sludge in the overboard discharging piping (where there should be none), and an oily water bypass hose with flanges and oil inside of it.” Order at 1, AR 1. It also found that “that the Master and Chief Engineer were unfamiliar with and failed to comply with the Safety Management System (SMS) for the vessel with regard to reporting critical equipment casualties and maintaining records and engine room alarms, including oily water separator alarm printouts.” Id. The Order further indicates that based upon crewmember interviews and other information gathered during the inspection, the Coast Guard found that the ship had “discharged oily contaminated bilge waste and/or sludge in contravention of MARPOL on several occasions and entered the United States port of Corpus Christi, Texas with an oil record book with false entries.” Id.

Based upon all of these findings, the Captain of the Port made the following determination:

[T]he willful noncompliance with MARPOL and APPS [the Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1901 et seq.] that occurred on board your vessel creates a threat to the marine environment.... Therefore, I am revoking your vessel's Certificate of Compliance in accordance with 46 U.S.C. § 3711(c).

Id., AR 2. He went on to state that he was imposing conditions “under the authority of 33 U.S.C. § 1228:”

Once your vessel departs port it may not enter the Sector Corpus Christi Marine Inspection Zone and Captain of the Port Zone, as defined in 46 C.F.R. 3.404–35, for a period of three (3) years, or until the vessel has developed and successfully implemented an Environmental Compliance Plan (ECP) to the satisfaction of the U.S. Coast Guard.... Successful implementation of an agreed upon ECP must include a period of satisfactory audits for at least a one (1) year period, after which I will consider allowing it to enter the Sector Corpus Christi Marine Inspection Zone and Captain of the Port Zone.

Id. (bold in original).

On May 27, 2010, the Coast Guard sent plaintiff Wilmina Shipping AS, the ship's owner, a letter stating that the Order would apply to all U.S. ports and navigable waters. Letter of May 27, 2010 to Wilmina Shipping AS from Captain E. Christensen, Chief, Office of Vessel Activities (“Letter 16711”), AR 557–60.

Plaintiffs took multiple steps to appeal the orders within the Coast Guard.

• On August 25, 2010, plaintiffs appealed to the Captain of the Port or Sector Commander. Aug. 25, 2010 Letter, AR 191–225.

On November 19, 2010, the Captain of the Port reaffirmed the original determination that the Wilmina was not in compliance with MARPOL. Nov. 19, 2010 Letter, AR 188–90.

• On December 9, 2010, plaintiffs appealed to the District Commander of the Eighth Coast Guard District. Dec. 9, 2012 Letter, AR 436–44.

On February 11, 2011, the Commander of the Eighth Coast Guard District denied the appeal. Feb. 11, 2011 Letter, AR 432–35.

• On March 1, 2011, plaintiffs appealed the District Commander's decision to the Commander of the Coast Guard Atlantic Area. Mar. 1, 2011 Letter, AR 488–95.

On April 8, 2011, the Commander affirmed the Eighth Coast Guard District denial. Apr. 8, 2011 Letter, AR 487.

• On April 27, 2011, plaintiffs appealed to the Vice Admiral of the Atlantic Area. Apr. 27, 2011 Letter, AR 509–518.

On November 1, 2011,...