Sub-standard ships and poor shipping practices are leading to massive pollution and damage

Act to Prevent Pollution from Ships (APPS) / MARPOL
Key U.S. laws permit non-U.S. citizens to recieve large monetary rewards for blowing the whistle. Report Ocean Pollution Crime
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Act to Prevent Pollution from Ships (APPS)

Whistleblowers are the key to preventing illegal oil and waste pollution in our oceans. Since ships that ignore and bypass environmental regulations do so far away from official oversight and in international waters, whistleblowers are a crucial component for detecting and preventing illegal pollution. This difficult reality is what makes the Act to Prevent Pollution from Ships  (APPS) one of the most important and effective tools we have for fighting and preventing marine pollution.

According to a 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.

What is APPS?

APPS implements MARPOL, an international treaty developed by the International Maritime Organization (IMO). APPS makes it a crime for any person to knowingly violate MARPOL, APPS, or regulations promulgated under APPS.

33 U.S.C. § 1908

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.

In other words, the law permits federal courts to grant rewards to whistleblowers whose disclosures regarding pollution on the high seas result in a successful prosecution.

See a list of ocean pollution cases, including summaries, court documents, judgments, and more, here. In many of these cases brought by the whistleblowers, the fines and penalties generated by their truthful and significant information have been used to serve the public interest.

Crucially, both APPS and other wildlife protection laws cover violations of international conventions, such as MARPOL and CITES, that occur outside the United States.

International Application of APPS:

APPS applies to all U.S.-flagged vessels and to all vessels, including foreign-flagged vessels, at the port under U.S. jurisdiction or operating in the navigable waters of the United States. Violations of APPS include discharges above the permitted level of oil and oily water; dumping noxious liquid substances; improper disposal of garbage; and emissions of certain air pollutants. APPS also requires that crews maintain an accurate Oil Record Book, and to comply with requests to investigate whether the ship discharged a harmful substance in violation of MARPOL. 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.

This law has been incredibly effective since it was signed into law: The U.S. government has awarded 205 whistleblowers a sum of approximately $33 million in the 100 most recent prosecutions under APPS.

The U.S. is the number one enforcer of MARPOL because of whistleblowers. 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 (1993 – 2017). The law has a demonstrated effectiveness over this 24-year span.

Whistleblower rewards provide incentives for those with information to step forward at no cost to taxpayers.

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.”

The Importance of Whistleblowers:

Words of a Mariner Upon Seeing His Ship’s Oil Cast Upon the Oceans He Loves:

“I faced the exact dilemma. Is it a pollution big enough to report? What will be counted as proof, whom to contact, will they protect me, will they act on it, what will happen to my job and life? And there were no easy answers, I just listened to my heart. I knew it was wrong, so I tried to stop and complained. If I knew it would go down this way I may have never dared to come out. That is another reason I don’t tell my story to others because it is still a story with a sad ending. I know it is not over and I will not give up, but before I tell the tale I want to make it a positive story. We will succeed one day.”

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:

“Information of this nature is otherwise difficult, if not virtually impossible to obtain [without help from the whistleblower].” – U.S. v. Consultores De Navegacion S.A.

“Absent crew members with firsthand knowledge of the illegal conduct coming forward, APPS violations are extremely difficult to uncover.”  – U.S. v. Noble Drilling

“Very few other countries have any track record of prosecuting deliberate MARPOL violations, let alone a legal process that would protect witnesses from obstruction of justice such as occurred in the vast majority of vessel pollution prosecutions.”– U.S. v. Efploia

In many of the court filings, the U.S. Department of Justice praises the usefulness of whistleblowers. For instance, in U.S. v. Aksay Denizcilik Ve Ticaret A.S. (8:10-CR-00116), the DOJ informed the court: “Without the information provided by [the whistleblowers], this activity likely would not have been discovered.” Likewise, 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.”

Additionally, in U.S. v. Sea World Management & Trading, Inc., two vessel operators were convicted for violating APPS. This could not have occurred without the assistance of six whistleblowers in the case, as confirmed in the DOJ’s motion for whistleblower rewards: “The information and testimony they provided as well as their continued availability here in the United States as witnesses helped to secure the guilty plea of the Defendant corporation, as well as one individual defendant…they provided the impetus for the criminal investigation, helped the Government to secure relevant evidence, and encouraged other witnesses to cooperate.”

The U.S. Department of Justice (“DOJ”) understand the importance of whistleblowers in obtaining evidence of marine pollution. In fact, their 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.

Employees in this case, like those in other similar prosecution, have indicated that they fear retaliation not just by their employees, but by manning agencies and other companies. They have a palpable fear of being blacklisted from future employment in the maritime industry. A substantial monetary award will reward crew members for taking a risk and leading to the prosecution of criminal actors. For those reasons, significant whistleblower awards have been awarded in prior cases…. [and] based on the foregoing, the government respectfully requests that the amounts specified above be awarded to the three named witnesses.”

Rewards Work! How Incentivizing Whistleblowers to Come Forward Results in Effective Law Enforcement:

Those who are brave enough to draw attention to violations of APPS or MARPOL – whether U.S. citizens or foreign nationals – may be compensated with up to 50% of the monetary penalties that the United States Government receives from the guilty parties.

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.

Additionally, in the last 100 APPS cases, rewards have been paid to whistleblowers in 76% of cases, with rewards not paid in only 21% of cases (with 3% unknown). Clearly, whistleblower protections and rewards are crucial for fighting ocean pollution!

The largest reward ever paid for an individual whistleblower was $2,100,000 (USA v. Omi Corporation). $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.

Average Whistleblower Reward Percentage (1993-2017)

The cases analysis revealed that 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. This amount was consistent between cases which occurred under Democratic and Republication presidents: under Democratic presidents, whistleblowers were granted rewards which averages 29.3% of the total funds, while under Republican presidents whistleblowers were granted rewards which averaged 28.1% of the total funds collected by the government. The National Whistleblower Center’s report about the partisanship of APPS prosecutions can be found here.

Whistleblowers are essential to both alerting authorities of APPS violations and to successful prosecutions of APPS violations. The possibility of collecting up to half the fine is a strong incentive for whistleblowers to come forward with information, and has proved a boon in keeping U.S. waters free of oil and other pollution. 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.

Why Rewards Work: A Cycle of Accountability

Detection is the first step in preventing environmental crime such as illegal pollution from ships begins with detection. The process from discovering a potential crime to prosecuting the offenders are all part of a cycle of accountability.

In this cycle, assets from the wrongdoer sponsor the enforcement of rewards for whistleblowers. No general revenues are needed once the cycle is set in motion, although initial support is necessary in order to catalyze this cycle. The National Whistleblower Center believes that effective law enforcement and community empowerment can both be furthered by a marketplace in which attorneys are incentivized to take such whistleblower cases, and those with information are incentivized to become whistleblowers.

Interested in reading more about NWC’s analysis of the effectiveness of whistleblowing in this arena? Read more about APPS / MARPOL and the fight against ocean pollution in NWC’s report, titled Whistleblowers are Crucial to Combating Ocean Pollution.

The International Nature of APPS is Key to its Success:

Leading experts on whistleblower law recognize the global importance of APPS; Stephen M. Kohn, Executive Director of the National Whistleblower Center, and Partner at Kohn, Kohn & Colapinto noted:

“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). ”

Who Benefits From the Success of APPS?

One of the most important features of APPS is its mandate that a portion of the rewards from successful prosecutions must be used for beneficial purposes, including to marine conservation organizations. Below is a full list of organizations that obtained restitution payments under APPS in the 100 most recent cases analyzed by the NWC.

  • Alaskan Arctic Fund
  • Arctic Research Consortium of the U.S.
  • Channel Islands National Park
  • Channel Islands Natural Resources Protection Fund
  • Columbia River Estuarine Coastal Fund
  • Dauphin Island Sea Lab Foundation
  • Florida Environmental Task Force Trust Fund
  • Florida Keys National Marine Sanctuary
  • Flower Garden and Stetson Banks National Marine Sanctuary
  • Gray’s Reef National Marine Sanctuary Foundation
  • International Arctic Research Center
  • Minnesota Environmental Fund
  • National Fish and Wildlife Foundation
  • National Fish and Wildlife Fund
  • National Marine Fisheries Service
  • National Marine Sanctuary Foundation
  • National Marine Sanctuary of American Samoa
  • National Park Foundation
  • North American Wetlands Conservation Act Fund
  • Norther Coastal California Restoration Fund
  • Oregon Governor’s Fund for the Environment
  • Puget Sound Marine Conservation Fund
  • Smithsonian Environmental Research Center
  • South Florida National Parks Trust
  • Tijuana River National Estuarine Research Reserve
  • Vessel Source Pollution Prevention and Compliance Fund

Please note that this review of cases was compiled in August 2018 and thus the above list may have since changed.

Additional resources:

  • Here are some cases in which whistleblowers have been rewarded for their courage and their aid in preventing ocean pollution. In many of these cases, the fines and penalties disclosed were used to serve the public interest by funding environmental groups and organizations (log-in required).
  • Here is additional information on other important laws that protect the environment.
  • Here are some Frequently Asked Questions about APPS as well as other whistleblower laws.

Below are two items from the Global Wildlife Whistleblower Program’s partnership toolkit, on the role of whistleblowers in marine law enforcement (with a focus on illegal fishing), and other applicable laws for those who want to make a difference and protecting our oceans. Share with your organization and the communities you work with.

 

What can we learn from the successful fight against ocean pollution?

Looking forward, we know that the whistleblower reward provisions of APPS will continue to be a crucial component of the fight to stop ocean pollution worldwide.

Whistleblower reward provisions in the APPS law serves citizens worldwide by functioning as an effective crime detection tool. Whistleblower reward programs incentivize informants to come forward to report crime and stop criminals. It’s no surprise that this snapshot of 100 recent cases tells a success story for whistleblowers.

The APPS whistleblower provision allows for international application – foreign whistleblowers and international companies can be under US jurisdiction. These rewards, at no cost to taxpayers, incentivize whistleblowers to report criminal activity, which aids the US government in detecting and prosecuting crimes related to wildlife and environmental laws and regulations. The whistleblower program effectively addresses issues of corruption at-home and abroad.

While APPS has only been enforced for a limited span of time, it is clear that whistleblower awards under APPS are on the rise. Moreover, partisanship does not appear to halt the use of such programs. Over time, this trend suggests that we can expect to see the numbers continue to rise regardless of election cycles. From 1993 to 2017, APPS enabled over $33 million in rewards to be given to whistleblowers for speaking out against pollution and corruption on the high seas. Imagine how effective APPS will be as awareness continues to grow during its third decade and into its fourth. APPS serves as proof of reward programs’ effectiveness and as a model for other programs moving forward.

Marine pollution threatens the health of our oceans and our ability to protect fish and wildlife. If you have information related to marine pollution, please submit a report using our secure, confidential intake form.

Please visit the Act To Prevent Pollution From Ships FAQ for more information including key cases and resources for the Whistleblower Handbook.

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