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Federal courts have jurisdiction over a MARPOL violation on a ship found in a U.S. port flying a foreign flag

In U.S. v Pena the defendant was charged with a federal crime of conspiracy to knowingly fail to maintain an accurate oil record book on board the vessel, in violation of 33 U.S.C. §1908; for failing to conduct a complete survey of the vessel Island Express in violation of 33 U.S.C. 1908; and for making a materially false statement to the Coast Guard, in violation of 18 U.S.C. 1001. Under an multinational maritime treaty called MARPOL, these federal criminal statutes were enacted to prohibit ships from dumping bilge water into the ocean unless the oil content has been reduced to less than 15 parts per million. The law required a ships over 400 tons to have a functional oily water separator to filter bilge water before discharging it. If the water is not filtered through a separator, then it must me collected and retained in tanks and discharged at a proper facility on shore.

The Coast Guard conducted an inspection of the Island Express, docked in Ft. Lauderdale, Florida, and examined the certificate of compliance which showed that the ship was properly outfitted with a functioning oily water separator to filter bilge water and reduce its oily content before discharging it into the ocean. A surveyor is the person who is qualified to inspect and issue the certificate of compliance. Hugo Pena was the surveyor who issued a Certificate for the Island Express stating that he inspected the vessel and that it was in compliance with the statute. The Coast Guard discovered that the oily water separator did not operate, and the ship did not had a bilge holding tank for storing bilge water for later discharge.

Pena challenged the Miami federal court’s jurisdiction over a MARPOL violation on a ship flying a foreign flag. The Island Express was registered in Panama. The 11th Circuit held that relevant statutes do give the federal courts jurisdiction over violations of MARPOL committed on foreign flagged ships in U.S ports and Congress has not surrendered jurisdiction to the flagged ship.

Sufficiency of the indictment
Pena challenged the sufficiency of the indictment. Under the statute, the indictment properly charged Pena with failing to conduct a survey such as to ensure that the structure, equipment systems arrangements and material of the ship fully complied with MARPOL. Applying the lenient standard of review, the indictment was sufficient.

Sufficiency of the evidence
The 11th Circuit found the evidence sufficient to support a conviction for violating MARPOL by failing to conduct a complete survey as required in the Regulations. He admitted to not testing the oily water because he knew the separator was not functional. There was evidence he issued two different certificates which were contradicting- one said the oil filtering was operating; the other certificate to the Flag State showing the oily water separator was not operational. The jury could reasonably conclude that Pena never inspected the oily separator. There was also evidence that the ship was leaking excessive amounts of seawater into the bilges of the engine room, creating large amounts of bilge water that needed to be managed. Furthermore there was an elaborate system of makeshift pumps and tubing designed to pump water out and up to the main deck where is flows overboard into the ocean. Yet Pena’s certificate made no mention of this tugging. A reasonable jury could decide beyond a reasonable doubt that Pena knowingly failed to conduct the required survey of the Island Express to ensure the ship was compliant with MARPOL

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