MarEx Mailbag: Reader Response to MarEx e-Newsletter Article from Last Week

MarEx reader weighs in on last week’s newsletter, specifically the Winston & Strawn: Briefing Issued on Implications of Oil Record Book Ruling. In that briefing, it was asserted that “…the Court applied what is essentially a strict liability standard that would make a ship owner criminally liable whenever one of its vessels is found to have brought an ORB with false entries into U.S. waters.”

On January 20, 2009, the U.S. Court of Appeals for the Second Circuit upheld the jury conviction of Ionia Management S.A. for failing to “maintain” an oil record book ("ORB") while in U.S. waters. In its decision, the Second Circuit has joined the Fifth Circuit in construing the Act for the Prevention of Pollution from Ships broadly and extending vicarious criminal liability to ship owners and operators. Indeed, the court applied what is essentially a strict liability standard that would make a ship owner criminally liable whenever one of its vessels is found to have brought an ORB with false entries into U.S. waters. Read the Winston & Strawn briefing by clicking HERE. You can also see what one of our readers thought about the article below:

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Joe,

I think that some of the legal eagles are trying to hype the Ionia ruling to an unwarranted degree.

If you read the ruling, it is clear that the practices on the Ionia were company policy. There had even been previous offenses by Ionia with regard to illegal dumping, false records, etc. If you have been following these kinds of cases, that is what is being prosecuted – not rogue employees. I know. I started this whole string of prosecutions with the Royal Caribbean Cruise Line prosecution back in the mid-1990s. In that case it was not an isolated instance or the actions of a rogue employee. It was more.

In so many of these cases it appears that the illegal dumping is company policy, that it is deliberate, systematic and systemic, and that it runs from engine rooms up, if not to the Board Room, then probably very close to it…

The court’s ruling in Ionia did contain an out – the bit about knowingly containing false info – that allows for a good bit of room for reasonable discretion. This is not always a sure bet when it comes to some DOJ prosecutors (and unfortunately a few Coasties as well), but the facts in those cases which have been brought, or at least the ones I have read about, would indicate that the available discretion isn’t being abused.

As to the issue of strict liability being held, I don’t think that is quite true. As I understand it, a truly strict standard would allow no discretion. That discretion is allowed means that the standard may be high but that it is not truly strict. The bottom line is that ship owners and operators have to be making really strong good faith efforts to do these things right. Merely creating the appearance of compliance, as in all of the prosecutions I have read about, won’t hack it. And it does not matter where the lies start.

Regards,

Bob Ross
Captain, USCG (Retired)

MarEx Editor’s Remarks: Captain Ross has written to us before. When he does, it is because he has an important point to make. This time was no different and it goes to show that there can be two reasonable points of view on any subject. Thanks, Bob.