Podcast: A deep dive into US prosecutions of oil dumping at sea

This is Green Seas, the podcast by TradeWinds about sustainability and the business of the ocean. I’m Eric Priante Martin, and today, we’re taking a deep dive into the US government’s prosecution of oil dumping by ships at sea.

We’re taking a tour of US Penitentiary Lompoc, a federal prison with minimum security and medium security areas.

I didn’t make it out to sunny southern California for this story, so we’re visiting the facility with the help of a YouTube show called Federal Prison Insider.

Why are we here? Because this is where Denys Korotkiy is being held.

Korotkiy was the chief engineer on a Liberian-flag multipurpose ship called the Donald. He was convicted of federal crimes after prosecutors accused him of ordering crew members of the vessel to dump oily bilge water — that’s the waste water that accumulates on ships — overboard on the high seas.

And his case is the latest in a long-running debate over the long arm of the US law when it comes to cracking down on pollution that happens in international waters. And if it succeeds, it raises questions over whether the US could lose a tool in its fight against pollution.

As is common in these cases, the US didn’t charge Korotkiy with illegal oil dumping; that happened outside of US waters. Instead, he was charged with a related crime: failing to accurately document the discharge in the ship’s oil record book.

His lawyer, Edward MacColl, has argued in a federal appeals court in San Francisco that the US has no jurisdiction to prosecute foreign seafarers for the crime, which is rooted in an international treaty: the International Convention for the Prevention of Pollution from Ships, also known as Marpol. That jurisdiction belongs to the ship’s flag state — the African nation of Liberia in the case of the Donald.

Here’s MacColl, speaking to me from the offices of his Maine law firm Thompson, MacColl & Bass:

“I think the first thing to understand is that the US is wrongfully violating the requirement in the Marpol treaty that requires flag state enforcement for high seas events. MacColl and others who have long criticised America’s efforts to prosecute pollution by foreign-flagged ships in international waters hope that a decision in the US Supreme Court will open the door for Korotkiy’s appeal to succeed.”

Though others think the appeal is a long shot.

The Marpol convention was adopted in the 1970s and became law in the US with the 1980 passage of the Act to Prevent Pollution from Ships, also known as APPS, and the US Coast Guard adopted regulations with the details of Marpol’s various provisions.

To understand how the US started going after companies and crews over oil dumped in international waters, let’s travel back to 1989.

NBC News coverage shows the Exxon Valdez spill, which touched off criminal prosecution against oil company Exxon and the ship’s captain, Joseph Hazelwood.

For Gregory Linsin, a lawyer who worked in the Department of Justice at the time, this was his first shipping case.

But there would soon be more in the 1990s.

“The very first criminal vessel prosecutions for the Marpol-type violations resulted from what were identified as mystery sheens — very, very long sheens of oil in the vessel traffic lanes off the eastern coast of Florida. And these were chronic, repeated operational discharges of oil. And the Coast Guard was aware of them. They were not able to identify the vessels they had come from. And so we began to develop some investigative techniques to identify where these things were coming, which vessels they were coming from. And we successfully prosecuted several of those cases, some of them involving commercial vessels, some of them involving cruise ships.”

The initial focus of these cases where vessels that were discharging oil in US territorial waters.

But the prosecutions evolved.

US regulations that implemented the Act to Prevent Pollution from Ships, and through that the Marpol treaty, required ships to maintain oil record books. And, Linsin told me, they had to maintain them accurately.

So the criminal prosecutions began focusing on those oil record books, and whether what was logged in those books was accurate when they were presented to authorities at a US port.

Now think about that for a second. The US can’t directly prosecute illegal discharges at sea by a foreign flag vessel, but then when that ship arrives at an American port, if that illegal discharge is not reflected in an oil record book in a vessel inspection, then that’s the crime.

And it has worked, for years.

Linsin now works on the defence side of these cases, as a maritime attorney at law firm Blank Rome.

“That theory of prosecution for the inaccurate record book has been tested multiple times in district courts and various appellate courts over the years and has been consistently upheld.”

But this theory of prosecution has been criticised by other maritime lawyers for years.

Michael Chalos represented Hazelwood when he faced criminal charges in Alaska for the Exxon Valdez spill and has defended shipping companies that were prosecuted for these oil record book cases.

His son, George Chalos, began working with his father on the cases in the 1990s and now leads the law firm Chalos & Co.

George told me about US Coast Guard collaborations with the Justice Department to target substandard shipping and particularly failing to follow Marpol’s rules requiring the use of an oily water separator. This device takes bilge water or sludge and separates oil from the water so the water can be dumped at sea and the oil can be properly disposed of.

But ship crews were accused of bypassing these devices to cut corners, some using what’s known as a magic pipe to dump the contaminated water directly at sea.

“I think it’s fair to say it was a problem. I think it’s fair to say that it was a fairly standard practice for generations that have gone by. But the approach by the government was really heavy-handed. They were using a sledgehammer when a flyswatter would probably have done the trick.”

For MacColl, this case is about the rights of his client Korotkiy and other seafarers.

He complains that in addition to practices that force shipping companies to effectively pay for their own prosecution by signing deals that allow their ships to sail during prosecution, those deals also lead to the seafarers who work on those ships being detained just for being witnesses.

And he argues that enforcement would be better if the countries that flag these ships were the ones prosecuting.

“It should be easy for me to get judges to see that we’re violating the treaty. We’re violating basic human rights. And we should stop, and the international enforcement mechanism would be better.”

In a world where we rarely see major oil spills like the Exxon Valdez, discharges from ships are the front line of the fight against pollution.

The nonprofit monitoring group SkyTruth uses satellite data to find oil sheets that emanate from commercial vessels, and if you look at its Cerulean platform on its website, you can see that they are a day-to-day occurrence.

This is John Amos, SkyTruth’s chief executive, who said there are an estimated 1.87m barrels of oil discharged at sea from ships every year:

“There are hotspots in the world of chronic oil pollution from shipping, where vessels are repeatedly discharging oily waste. And that cumulative repeated pollution can have longer-term impacts on lives and livelihoods that depend on a clean ocean, and on the creatures and the marine ecosystems in those places. So Eastern Mediterranean is a hotspot Persian Gulf, not a big surprise. South East Asia, where you have this major confluence of international transoceanic shipping zones. And these places are bearing the brunt of this global pollution problem.”

But one of the things that the Cerulean data shows is that the waters around the United States are not one of those hotspots.

Now, to be clear, cases like the Korotkiy suit involve dumping oil in international waters, not US waters.

But Amos said Washington’s enforcement of pollution laws is one of the reasons behind the fact that its waters are freer of these oil spill.

“I think it has a huge impact. You know, not only do we have a navy. We have a coastguard. I don’t think the coastguard is adequately funded, for all the stuff we expect them to do. But nevertheless, compared to many other countries around the world, that’s a huge maritime control asset that we have that many other countries can only dream of. The other thing, we have is probably arguably the world’s strongest body of anti-pollution law, with decades of legal precedent, and legal challenges, running all the way up to the Supreme Court to establish authorities jurisdiction and uphold criminal sanctions for breaking these laws.”

I have asked the Justice Department to comment on this story, and its press office declined.

Richard Udell, a senior trial attorney at the Justice Department’s environmental crimes division, is one of the most aggressive prosecutors of these cases. And he’s a star of the Marine Defenders YouTube channel, whose videos were funded by the government-chartered US National Fish and Wildlife Foundation

Here’s one video from five years ago.

Korotkiy’s legal problems began in May 2022, when a fellow crew member contacted US authorities days before the Donald arrived at the port of San Diego.

The whistleblower had reported that Korotkiy repeatedly ordered crew members to dump oily bilge water into the ocean without first passing it through equipment designed to take out the pollutants, according to legal documents.

And here’s one of the problems for critics of these prosecutions: rewards that encourage seafarers to report pollution to US authorities, not to their captain or employer.

“It’s just a completely backwards system that encourages people to continue polluting until they get here. Nobody would design an enforcement system. With that mechanism — hey, you get a big award, but you only get a reward if you report it here first. And in order for that to happen, the system has to continue until you get here. Instead, any logical enforcement system would say, ‘Hey, if something is going wrong on your vessel, the first person to tell is the captain. The second person to tell is management at the company.’ And if they don’t jump on it, then tell it to officials. That’s the right reporting system for any misconduct at any company. We don’t want that system, because it’s not headlines for federal prosecutors. And it’s not money for the US Treasury.”

But for US prosecutors, these rewards play an important role in finding instances of intentional oil pollution that would otherwise go unseen.

Here’s Udell again, from a Marine Defenders YouTube video.

Korotkiy is a resident of the Crimean Peninsula who holds passports from Russia and Ukraine. He was among crew members who were detained as witnesses while US officials investigated the allegations of oil dumping from the Donald.

In December 2022, he was indicted by a grand jury. The ship’s manager eventually pleaded guilty, and though Korotkiy maintained his innocence, he was convicted of three counts in June of last year.

The engineer, who identifies as Russian and is a father of two, could be released from his 12-month prison sentence next month, with credit for good behaviour.

But MacColl says the federal government is threatening to continue to hold him until he can be deported back to Crimea, which Russia annexed from Ukraine in 2014.

He is challenging part of his conviction of oil record book violations before the Ninth Circuit Court of Appeals. Before that court, MacColl has argued that failing to maintain an oil record book is no crime at all, at least not in the US when it involves a foreign-flagged ship on the high seas.

Lawyers representing seafarers, shipowners and vessel managers have made that argument before, and they have been rejected by three federal appeals courts. But lawyers told TradeWinds that what makes MacColl’s argument different is his deep dive into the history of US law and the Marpol convention.

George Chalos said that history makes it clear that the US was well aware that its jurisdiction was limited.

“And they were well aware that if they discovered some misconduct occurring on a foreign-flag vessel at sea, they were supposed to refer the flag state, and the give back is for any American flag, they would retain jurisdiction as the flag state of misconduct occurring onboard the ship anywhere in the world.”

In the Korotkiy appeal, MacColl said that coastguard regulations that implemented the Marpol convention contained what he described as a “subtle change” from the treaty’s wording: the requirement that an oil record book be maintained.

He said the language is clear that it was only meant to apply to foreign ships while they are in the US. On the high seas, it’s up to the ship’s flag state — Liberia in the case of the Donald.

The lawyer said the history of both the treaty and the law enacting it in the US makes it clear that it was never the intention to make it a crime to fail to maintain an accurate oil record book when a ship arrived at a US port.

In court papers, he said the coastguard relied on a “strained interpretation” of the regulations to get to this crime.

For The Justice Department, the duty to keep an oil record book accurate is an essential means of detecting violations of the Marpol Treaty.

Here’s Udell again, from those Marine Defenders videos.

But for MacColl, Marpol intended another way for port states to take action when they suspect a ship has violated Marpol in international waters.

He argued they should report the suspected violation to the flag state, and if officials are not satisfied with the action taken, they can file for arbitration at the IMO.

“If there are flag states out there that aren’t willing to impose sufficient fines to make sure that shipping companies insist on playing by the rules, take them to the International Maritime Organization — that’s what Marpol says — and sanction them until they impose hefty fines. They’ll impose hefty fines, and the system will work. We have a system that encourages pollution.”

Instead, MacColl wrote in court papers that at a time when the US Coast Guard and Justice Department were transitioning towards using oil record book violations to go after foreign-flagged ships, a 2000 report by the US government watchdog agency found that referrals to flag states had plummeted.

But why challenge these prosecutions now, after so many years?

On the one hand, MacColl is hoping that the Ninth Circuit will come to a different conclusion from other appeals courts that have upheld convictions in these cases, although I spoke to one expert on such prosecutions who was doubtful because Ninth Circuit judges tend to be friendly to environmental regulation.

But then, there is the US Supreme Court.

The nation’s highest court has heard arguments in a case involving federal authority in the fishing industry that is a key test of the Chevron doctrine.

This 40-year-old precedent gives deference to a federal agency’s interpretation of a statute.

The Supreme Court is dominated by conservatives who are sceptical of broad federal powers. It is expected to significantly alter the rule, if not overturn it.

“And I think the current Supreme Court is going to go at least some degree back to saying the agencies can’t change the rules that Congress adopted, unless Congress at least gives them some clear indication that they may do so. So that’s one reason why I’m hopeful that we will prevail. “

Not everyone agrees that overturning the Chevron doctrine would hand MacColl a victory in the Korotkiy case. One lawyer told me that the doctrine only applies in the case of an ambiguous statute, and there is not agreement that the oil record book requirement at issue is unclear.

But even some who are not challenging US jurisdiction in these cases are not happy with the way cases are prosecuted today.

Linsin, the former prosecutor now at law firm Blank Rome on the defence side of environmental cases, noted that despite a long history of oil record book prosecutions, the cases have not dwindled. He said that is a reflection of the programme’s failure to evolve.

“In every other federal and state environmental enforcement programme, there is a graduated process of enforcement by the regulatory and prosecuting entities ranging from administrative to civil to criminal. And with all of these programmes, the typical development has been that when there are violations with a new programme, they’re handled administratively. If they are more serious or they continue, they’re handled civilly.”

Criminal prosecution is reserved for the most egregious cases. But in these oil dumping prosecutions, criminal prosecution is the starting point, even as the shipping industry has stepped up its compliance with environmental rules.

“And I think that has significantly distorted our picture of these cases. Candidly, I think the Department of Justice has lost sight of some developments that have occurred within the industry over this 25-30 year period.”

Read more about sustainability and the business of the ocean at tradewindsnews.com/sustainability.

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Music for this episode is by Coma Studio from Pixabay.