MARPOL, MAGIC PIPES, and WHISTLEBLOWERS: Lessons Learned and the Fight for Due Process for Owners, Operators, and Seafarers

Transcription

1 MARPOL, MAGIC PIPES, and WHISTLEBLOWERS: Lessons Learned and the Fight for Due Process for Owners, Operators, and Seafarers By: George M. Chalos, Esq. CHALOS & CO, P.C. International Law Firm New York Houston Miami Athens Cyprus

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10 WHISTLEBLOWERS RELIABILITY

11 WHISTLEBLOWERS o U.S. Coast Guard tip before or during a PSC Inspection. o Reward Incentive 33 USC 1908(a) In the discretion of the Court, an amount equal to not more than 1/2 of such fine may be paid to the person giving information leading to conviction. o Reliability?

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13 US Coast Guard Interview February 7, 2012 USCG1: Are you aware that uh, if you provide us any information that leads to a conviction, that you could get up to half the amount of penalties assessed. Oiler: Yah USCG 1: Of that reward for providing information USCG 2: What it boils down to Rey is, if you re for instance if you know about the discharge. Say you saw an engineer, this is just uh, you know completely a hypothetical, that you saw an engineer discharge or you were discharging illegally overboard.

14 USCG 2: That...and you didn t tell somebody or you kept that and you lied about it. You could get in a lot, a lot of trouble. Now, what we are explaining to you is that a law enables the United States to offer a reward to you, if you were to give us that information. And understand that getting a reward, versus getting in a lot of trouble, there is a lot to weigh there. Oiler: How can I give information, when we didn t do that. USCG 2: We re not saying that you did, but we re asking...

15 WHISTLEBLOWERS MOTIVE June 19, 2013: from Whistleblower Lawyer to Government and Defense Counsel o...we represent Second Engineer Nathaniel Enicola in connection with his APPS whistleblower claims and also any wage and/or material witness fee claims that he has. o... Second Engineer Enicola has asked us to assist him with representation focusing on the APPS award and also his personal living situation while otherwise held for trial or settlement.

16 WHISTLEBLOWERS MOTIVE United States v. Overseas Shipholding Group, Inc., 06-CR (D. Mass. 2006): Twelve (12) crewmembers each received $437,500 (for a total in whistleblower rewards of $5.25 million dollars) United States v. OMI Corporation, 04-cr (D.N.J. 2004): award of $2 million to one (1) crewmember. United States v. Target Ship Management Pte Ltd., et al., 11-CR-0368 (S.D. Ala. 2012): award of $250,000 awarded to be split between seven (7) crewmembers. United States v. Hiong Guan Navegacion Japan Co., Ltd., 08-CR-494 (M.D. Fla. 2009): award of $253,125 to the vessel s Fourth Engineer and $84,375 to the vessel s Third Engineer.

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21 Vicarious Liability The government must prove beyond a reasonable doubt that each and every element of the alleged offense was committed and that such offense was committed by a person acting: within the course and scope of their employment, and for the benefit of their employer.

22 WHAT NOT TO DO - DO NOT just plead guilty because it is easier. DO NOT bargain with the rights and liberties of the seafarers.

23 WHAT TO DO Make sure employment contracts clearly identify who is the employer and who is the employee. Technical department should conduct routine analysis of bilge and sludge production and discharges to ensure the numbers look right. Daily sounding logs should be maintained onboard and routinely transmitted to the office.

24 What s Next? 33 U.S.C. 1904(h): A ship unreasonably detained or delayed by the Secretary acting under the authority of this chapter is entitled to compensation for any loss or damage suffered thereby. Angelex Ltd. v. United States, 723 F.3d 500, (4th Cir. 2013) ( APPS provides for compensation for loss or damage as a result of unreasonable detention by the Coast Guard This safeguard gives [Owners] a remedy ). Recovery action against U.S. Coast Guard for damages arising from the Vessel s 165-day detention.

25 Angelex Ltd. v. United States 15-cv-56 (D.D.C. August 24, 2015) In denying the government s motion to dismiss Angelex s claim, District Judge Rudolf Contreras held, inter alia, Angelex s claim with respect to the terms of surety demanded by the Coast Guard remains... Second, Angelex s claim concerns more than the reasonableness of the initial withdrawal of the Pappadakis s departure clearance in April 2013 and the terms of surety demanded by the Coast Guard. Rather, Angelex s claim encompasses the Coast Guard s continued detention of the Pappadakis from April to September 2013, which the Complaint alleges was unreasonable in light of the evidence and the circumstances.

26 What s Next? Do the U.S. Courts have personal jurisdiction over a foreign ship manager, i.e. the ship operator? Structure of the Employment Contract - Who is the employer of the crewmembers? Agreement on Security Language The United States and the Owner and Operator agree to take reasonable measures to expedite the investigation of the Alleged Violations, the release of any of the [crewmembers]... and any subsequent proceedings. So what is Expedited?

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