Ocean pollution from shipping activities – both intentional and accidental – is widespread. According to a 2010 report from the Congressional Research Service, the Government Accountability Office found “2,400 illegal discharge cases by foreign-flag ships (including tankers, cargo ships and other commercial vessels, as well as cruise ships) confirmed” in just a six-year time span. The true number was likely even higher.
This pollution threatens marine life around the globe, which is already in a precarious position. According to the IUCN Red List, over 2,200 species of marine life are vulnerable, endangered, or critically endangered at present. Ocean pollution from ships magnifies this issue as it kills wildlife, damages ecosystems, fouls water, and can make seafood unsafe for consumption.
However, ships that ignore and bypass environmental regulations do so far away from official oversight and in international waters, making it difficult to discover and prosecute wrongdoing. That’s why whistleblowers are a crucial component for detecting and preventing illegal pollution under the Act to Prevent Pollution from Ships (APPS).
APPS is a U.S. federal law enacted to implement the 1973 provisions of the International Convention for the Prevention of the Pollution from Ships treaty, otherwise known as MARPOL, and is one of the most important and effective tools to uncover and prevent marine pollution. APPS includes a key whistleblower provision which permits federal courts to grant rewards of up to 50% of the total fines to whistleblowers whose disclosures regarding pollution on the high seas result in a successful prosecution. Crucially, APPS and other wildlife protection laws cover violations of international conventions, like MARPOL, that occur outside the United States.
In order to safeguard our oceans from shipping pollution, the National Whistleblower Center (NWC) educates whistleblowers about their rights and protections under APPS and other U.S. laws in order to empower them to come forward with evidence of ocean pollution. NWC also analyzes the effectiveness of whistleblowing in this arena, advocates before Congress and agencies in order to strengthen protections and rewards for whistleblowers, and assists whistleblowers in reporting this type of crime through our Legal Assistance Program.
Know Your Rights Under APPS
The U.S. Department of Justice (“DOJ”) has repeatedly emphasized both the importance of vigorously prosecuting marine polluters and the importance of whistleblowers in obtaining evidence of marine pollution. The DOJ is committed to continuing to ensure that oceans are protected by enforcing APPS, with those in charge of prosecuting these crimes asserting that, “neither the government nor the public will tolerate the flagrant disregard of U.S. laws. Those who violate the law and pollute our waters will be vigorously prosecuted.”
Violations of APPS include discharges above the permitted level of oil and oily water; noxious liquid substances; garbage; and emissions of certain air pollutants. Additional protections includes a ban on the disposal of certain pollutants in “special areas” or within a certain distance from land, and a strict prohibition on the disposal of any plastics into the ocean.
APPS applies to all U.S. flagged ships across the globe and foreign flagged vessels who are operating in U.S. waters or while at a port under U.S. jurisdiction. It also requires crews to maintain accurate Oil Record Books and comply with requests to investigate whether the ship discharged a harmful substance in violation of MARPOL.
Those who come forward with violations of APPS or MARPOL may be compensated with up to 50% of the monetary penalties that the United States Government receives from the guilty parties. The average reward granted to whistleblowers as a result of successful APPS prosecutions was 28.8% of the total amount of funds collected by the government. From 1993 to 2017, the U.S. courts have awarded 205 whistleblowers a sum of approximately $33 million in 100 prosecutions under APPS.
The largest reward ever paid for an individual whistleblower was $2,100,000 (USA v. Omi Corporation), while $5,250,000 is the largest amount ever paid to a group of APPS whistleblowers from the Philippines (USA v. Overseas Shipping). A separate survey of 75 recent cases found that the average reward paid per whistleblower was $163,575.
Critically, whistleblowers under APPS do not have to be U.S. citizens – in fact, most are not. Leading expert Stephen M. Kohn, the Board Chairman of the National Whistleblower Center, notes: “The ocean pollution cases prove that whistleblowing can work on an international stage. Our review of the 100 cases reveal that 70% plus of those cases came from international non-U.S. whistleblowers from countries such as the Philippines, Greece, and Venezuela. According to court documents, only 3% were from the U.S. (with the rest of the whistleblowers from Australia, Honduras, and India). ”
The Importance of Whistleblowers in APPS Enforcement
The U.S. is the number one enforcer of MARPOL in the world because of the whistleblower provision in APPS. In an analysis of 100 recent Act to Prevent Pollution from Ships (APPS) prosecutions available on Public Access to Court Electronic Records (PACER), court records reveal that whistleblowers were responsible for 76% of all successful cases from 1993 – 2017.
Since the passage of the APPS, the importance of whistleblowers in detecting illegal pollution and other wildlife regulatory violations has been demonstrated in case after case. U.S. Department of Justice (“DOJ”) attorneys have attested in court that “the APPS whistleblower award provision serves a valuable law enforcement purpose. Deliberate violations of MARPOL and United States law are far too common. Criminal conduct that takes place within the small community of those living and working abroad a vessel is difficult to detect…. The availability of the APPS reward aptly reflects the realities of life at sea and the pollution of the oceans. Because the pollution takes place in the middle of the ocean and usually at night, the only people likely to know about the falsification of ship records used in ports are employees in the engine room.”
In U.S. v. Efploia Shipping Co., S.A. (1:11-CR-00652), DOJ stated “it is beyond dispute,” that the whistleblower “provided substantial information that led to the investigation and conviction of all defendants in this matter.” Quite simply, “the government was otherwise unaware of this crime and unlikely to learn about it…These photographs and documents were essential tools in the interviews of other witnesses and in securing guilty pleas from the defendants.”
The whistleblower protection and reward provision of APPS has yielded clear dividends for the U.S. government. In the analysis of 100 recent Act to Prevent Pollution from Ships (APPS) prosecutions available on Public Access to Court Electronic Records (PACER) conducted by the National Whistleblower Center, the U.S. government obtained over $270 million in sanctions from polluters and recovered a total of $177,593,000 based on whistleblower testimony. Additionally, courts have ordered over $63 million be used for beneficial purposes in fighting ocean pollution.
It’s not only government agencies that demonstrate support for whistleblowers. As an October 2020 poll from the Whistleblower News Network shows, corporate whistleblowers enjoy broad support from the American public. When asked if passing stronger laws that protect employees who report corporate fraud should be a priority for Congress, 82 percent of those surveyed agreed.
Whistleblowers are essential to both alerting authorities of APPS violations and to successful prosecutions of APPS violations. The persons best positioned to uncover violations are crew members: testimony, videotapes, and other evidence provided to law enforcement by whistleblowers is essential to the detection and prosecution of ocean pollution crime.
Read more about APPS/MARPOL and the fight against ocean pollution in NWC’s 2018 report Whistleblowers are Crucial to Combating Ocean Pollution.