In the last 2 months there have been 2 cases related to MARPOL Annex I violations in US where the Chief Engineers have argued that they cannot be prosecuted by a foreign port state for illegal discharge of oily wastewater on high seas - The Evridiki [2021] and The Joanna [2022]. Technically they are not wrong. What did the US Courts have to say about this?
On both vessels USCG discovered a concealed modification for the Oil Content Meter that prevented the sensor from analysing a true sample of overboard discharges. It didn’t take long to figure out that oil was discharged in greater concentrations than permitted by MARPOL. No entries were made in ORB for these discharges. C/E of both vessels, being in charge for such operations were charged for failure to maintain an accurate ORB, i.e. falsifying the ORB, but not for illegal discharge of oil on high seas as that was beyond America’s jurisdiction.
As per the court, whilst MARPOL vests power in flag states to prosecute high-seas misconduct wherever the violation occurs, it also grants concurrent jurisdiction to foreign port states over conduct in their waters. The regulations required every ship to maintain an ORB. The word 'maintain' equates to keeping accurate records. Although the duty to maintain the ORB rests with the Master, Chief Engineers can be prosecuted for aiding, abetting and causing the [Master’s] failure to maintain an accurate ORB.
To be noted that the lower court had barred the C/E of Evridiki from entering US. Court of Appeal was of the view that imposing banishment is an abuse of discretion in such cases. It said that a seafarer’s career depends on travel in international waters, including U.S. waters, and the condition of banishment impinges upon freedom of movement that could interfere with his livelihood.
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