A New Orleans court has found chief engineer Warlito Tan not guilty of four felony counts including pollution and obstruction of justice.
It is a rare win for a defendant in a US pollution case, and one in which federal judges rejected some of the prosecutors’ requests for subpoenas of crew members as “unreasonable and oppressive”.
The full acquittal for Tan, formerly of the 33,700-dwt Joanna (built 2010), comes despite a guilty plea by manager Empire Bulkers and registered owner Joanna Maritime on parallel charges. A verdict is awaited in January against those two Stamatis Molaris-controlled entities.
In Tan’s case, the grand jury investigation plus trial took 20 months.
In many similar cases, seafarers like Tan and his fellow crew have been held in the US for months as “material witnesses” waiting to testify before a grand jury, sometimes with no hearing before a court to consider their rights in the matter. Tan spent seven months in the US with material witness status before prosecutors indicted him.
Tan was represented by maritime defence lawyer Edward MacColl. The prosecution was led by Richard Udell of the Department of Justice (DOJ).
Udell is regarded as the mastermind of US pollution enforcement. He declined to comment directly to TradeWinds, referring questions to a government public relations official.
Portland, Maine-based MacColl has defended a number of seafarers on pollution charges and is an outspoken advocate for reform of US prosecutions of seafarers.
He deems the US use of material witness detentions a violation of human rights under the US constitution, and of laws that protect the rights of accused persons.
“The government goes out of its way to avoid judicial oversight in these cases,” he told TradeWinds.
Before Tan’s acquittal, the Eastern District of Louisiana federal court concurred with MacColl in finding fault with the treatment of foreign crew members by the DOJ.
“[For] nearly seven months, the witnesses and Tan were required to stay in a foreign country, during the Covid-19 pandemic, without the ability to be with their families or to engage in productive work, and without any real clarity as to when they would be released,” wrote magistrate judge Janis van Meerveld in one ruling.
‘Significant hardship’
“They presented declarations to the court regarding the toll the experience was taking on their emotional and physical well-being. There is no question that they endured significant hardship.”
Tan was in charge of the engine room of the Joanna — now sold and renamed Bolivar – until March 2021, when the Empire Bulkers handysize called at New Orleans.
At that time, US Coast Guard inspectors boarded the ship and found evidence of severe fuel-oil leakages in the machinery spaces, illegal tampering with the oily water separator and oil content monitor, and falsified logs that concealed earlier pollution from engine room oil waste.
TradeWinds reported in October 2021 on the indictments against Empire, affiliated shipowning entity Joanna Maritime and Tan.
In May 2022, after winning a number of limited victories during months of copiously briefed proceedings, the managing and shipowning entities each agreed to pay $1m each in fines and pleaded guilty to two of four felony counts: failing to maintain an accurate oil record book and failing to notify of a hazardous condition. The DOJ agreed to drop two charges related to obstruction of justice and of administrative proceedings.
But Tan did not plead guilty. He went to a full jury trial on all four counts, and won.
On 16 November, senior district judge Mary Ann Vial Lemmon instructed the jury and after three hours of deliberation received their unanimous not guilty verdict.
“There is no dispute that there was a modification of that equipment on the ship, but Tan did not put it there,” said defence attorney George Chalos, who, with his Chalos & Co colleague Briton Sparkman, represented the vessel interests.
During the long process, Tan spent most of his time as the house guest of his lawyer, MacColl. He left the US twice with court permission and returned voluntarily each time to finish standing trial.
One departure was to attend the funeral of his father, the other was because of trial delays when prosecutor Udell contracted Covid more than a year after the process began.
