What is the Act to Prevent Pollution from Ships?
On the morning of March 18, 1967, the supertanker Torrey Canyon, en route from Kuwait to Wales, became the world’s first major oil tanker disaster, spilling nearly 120,000 tons of crude oil into the sea. This spill led to oil slicks over 20 miles long, contaminated 120 miles of the Cornish coast and 50 miles of the coast of Normandy, and killed over 15,000 birds. The consequences of the shipwreck led to the emergence of the first international regime on liability and compensation for oil pollution: the International Convention for the Prevention of Pollution from Ships (MARPOL).
MARPOL was developed through a United Nations agency known as the International Maritime Organization (IMO). The IMO deals with maritime safety and security, as well as the prevention of marine pollution at sea. Under MARPOL, ships must conform to specific standards regarding the stowing, handling, shipping, and transferring of pollutant cargoes, as well as standards for the discharge of ship-generated operational wastes. MARPOL consists of six separate Annexes which set out regulations covering the various sources of ship-generated pollution. Annex I and II are mandatory for all signatory nations to MARPOL; Annexes III – VI are optional.
In order to implement the provisions of MARPOL, the U.S. passed the Act to Prevent Pollution from Ships (APPS) in 1980. APPS applies to U.S. commercial vessels, as well as non-U.S. commercial vessels operating in U.S. waters or ports of U.S. jurisdiction. APPS makes it a crime to knowingly violate certain provisions of MARPOL and other oil pollution laws. The United States Coast Guard and the U.S Environmental Protection Agency are the main enforcers of MARPOL and APPS within the U.S. Additionally, APPS includes whistleblower provisions to help combat illegal pollution and empower and incentivize workers to expose any known information about pollution from ships.
What whistleblower provisions exist under APPS?
The U.S. is the number one enforcer of MARPOL in the world because of the whistleblower provision included in APPS. Activities like dumping illegal discharge into the ocean often happen away from observers; as such, the best persons to uncover violations of APPS and MARPOL are crew members aboard these ships. Whistleblowers are essential to alerting authorities of APPS violations and providing information that leads to successful prosecutions of APPS violations.
The introduction of whistleblower reward provisions to APPS can be found under 33 U.S. Code § 1908 which states, “a person who knowingly violates the MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regulations issued thereunder commits a class D felony. In the discretion of the Court, an amount equal to not more than ½ of such fine may be paid to the person giving information leading to conviction.” Those who come forward with violations of APPS or MARPOL may therefore be compensated up to 50% of the monetary penalties that the U.S. Government receives from the guilty parties.
In an analysis of 100 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. 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. Between 1993 – 2017, the U.S. courts awarded 205 whistleblowers a sum of approximately $33 million in 100 prosecutions under APPS.
The largest amount ever paid to 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).
Whistleblowers do not need to be U.S. citizens to receive a reward. In fact, of the 100 prosecutions reviewed, 70% of cases came from international countries such as the Philippines, Greece, and Venezuela. APPS applies to U.S. commercial vessels, as well as non-U.S. commercial vessels operating in U.S. waters or ports of U.S. jurisdiction.
What are the six MARPOL annexes?
The various Annexes (described by the IMO) covered under MARPOL, APPS, and other U.S. laws are as follows:
Annex I, Regulations for the Prevention of Pollution by Oil: Covers prevention of pollution by oil from operational measures as well as from accidental discharges. Annex I makes it mandatory for new oil tankers to have double hulls and brought in a phase-in schedule for existing tankers to fit double hulls.
Annex II, Regulations for the Control of Pollution by Noxious Liquid Substances (NLS) in bulk: Details the discharge criteria and measures for the control of pollution by noxious liquid substances carried in bulk. The discharge of certain residues are only allowed in reception facilities until certain conditions are met and complied with. In any case, no discharge of residues containing noxious substances are permitted within 12 miles of the nearest land.
Annex III, Regulations for the Prevention of Pollution by Harmful Substances in Packaged Form: Contains general requirements for the issuing of detailed standards on packing, marking, labelling, documentation, stowage, quantity limitations, exceptions, and notifications. Harmful substances are identified as marine pollutants in the International Maritime Dangerous Goods Code or meet the criteria in the Appendix of Annex III.
Annex IV, Regulations for the Prevention of Pollution by Sewage from Ships: Contains requirements to control pollution of the sea by sewage. The discharge of sewage into the sea is prohibited, except when the ship has in operation an approved sewage treatment plant or when the ship is discharging comminuted and disinfected sewage using an approved system at a distance of more than three nautical miles from the nearest land.
Annex V, Regulations for the Prevention of Pollution by Garbage from Ships: Specifies the type of garbage, distance from land, and manner in which it may be disposed of. The most important feature of this annex is the complete ban on disposing all forms of plastics at sea.
Annex VI, Regulations for the Prevention of Air Pollution from Ships: Sets limits on Sulphur oxide and nitrogen oxide emissions from ship exhausts and prohibits deliberate emissions of ozone depleting substances.
The United States is currently signatory to Annexes I, II, III, V, and VI of MARPOL, of which Annexes I, II, V, and VI were incorporated into law by APPS. The U.S. incorporates Annex III by the Hazardous Materials Transportation Act implemented within additional U.S. codes and has equivalent regulations to Annex IV which regulates the treatment and discharge standards of shipboard waste. This regulation can be seen in the Federal Water Pollution Control Act, as amended by the Clean Water Act.
What constitutes a violation under APPS?
The dumping of ship waste, oil-based pollutants, and other noxious liquids identified in the various MARPOL Annexes are one of the primary violations of APPS. Other violations also include:
- Ship discharges above the permitted level of oily and oily water,
- Unauthorized alteration to the piping arrangements in the engine room,
- Dumping of garbage and all plastics,
- Emissions of certain air pollutants
- The disposal of certain pollutants in “special areas” or within a certain distance from land
- Disabling or interfering with monitoring systems intended to keep track of excess oily concentrations such as “magic pipes” used to bypass oily bilge water monitoring devices
- Keeping a false “oil record book” or logbook of all relevant discharges and/or failing to record illegal discharges that have taken place, and
- Concealing, falsifying, or lying about known ship pollution.
Who enforces APPS?
The United States Coast Guard and the U.S Environmental Protection Agency are the primary enforcers of MARPOL and APPS within the U.S. They are often the ones to inspect and investigate actions if a violation is detected.
The civil penalties for noncompliance under APPS are significant. A vessel owner or operator can be liable up to $25,000 for each violation and civil penalties for making false or fraudulent statements can reach $5,000 for each statement made. On average, civil penalties and fines range from $100,000 to $500,000, but have gone much higher for some cases.
In 2017, Princess Cruise Lines Ltd. was sentenced to pay a $40 million penalty for illegally dumping contaminated waste overboard and falsifying official logbooks to hide the discharges. In 2013, Columbia Shipmanagement (Deutschland) GmbH (CSM-D), a German corporation, and Columbia Shipmanagement Ltd. (CSM-CY), a Cypriot company, were sentenced to pay $10.4 million in penalties for deliberate concealment of vessel pollution from four ships that visited ports in New Jersey, Delaware, and North California. In addition to the penalties, the companies were placed on four years of probation where they were subject to terms of environmental compliance which requires outside audits by an independent company and oversight by a court appointed monitor.
Often times, when violators of APPS are required to pay fines, the courts also order a portion of the money to be used for beneficial purposes in fighting ocean pollution. Organizations that have received restitution include the National Fish and Wildlife Foundation, the Smithsonian Environmental Research Center, National Park Foundation, and the Arctic Research Consortium of the U.S.