880 F. Supp. 2d 9
D.D.C.2012Background
- Defendants Sanford Ltd. and James Pogue face five counts alleging violations of the APPS and related MARPOL-based regulations concerning Oil Record Book (ORB) entries.
- Superseding Indictment charges two types of ORB violations: affirmative false entries and omissions to record certain discharges or transfers of oily bilge water.
- San Nikunau, a New Zealand-flag purse-seine vessel, operated in the South Pacific, with cargoes offloading in U.S. ports including American Samoa.
- Americans’ substantive regulatory framework is MARPOL, implemented domestically as APPS, and enforced by Coast Guard regulations under 33 C.F.R. Part 151.
- The central dispute is whether U.S. law applies to omissions on the high seas or only to conduct within U.S. jurisdiction; the Court ultimately holds U.S. law applies to the charged omissions when the vessel enters U.S. ports.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether APPS can reach omissions on the high seas | Gov’t argues APPS applies when entries are required by U.S. law, even if omissions occurred off U.S. shores | Defs. claim extraterritorial application is improper and relies on flag-state MARPOL | U.S. law may apply to omissions when vessel enters U.S. ports or navigable waters |
| Source of duty to record on high seas | Maintaining an accurate ORB is a U.S. duty upon entry into U.S. ports | New Zealand law governs offshore conduct; duty is not U.S.-centric | Duty to maintain an accurate ORB can be enforced under U.S. law when ship enters U.S. jurisdiction |
| Conflict between U.S. and New Zealand MARPOL rules | New Zealand MARPOL interpretations align with U.S. requirements; no conflict | Possible material differences could render U.S. enforcement unfair | Likely no material conflict; New Zealand and U.S. regimes are compatible; U.S. law applies |
| Meaning of 'maintain' and 'inaccurate' in APPS | Maintaining means keeping ORB accurate, even if entries are made abroad | Definitions should be limited to entries made within U.S. jurisdiction | ‘Maintain’ means keep up-to-date and accurate ORB, including in-ports verifications; omissions actionable |
Key Cases Cited
- Cunard S.S. Co. v. Mellon, 262 U.S. 100 (1923) (law-of-the-flag framing and ship jurisdiction concepts noted)
- Patterson v. Eudora, 190 U.S. 169 (1903) (implied consent to enter ports conditional on compliance with port laws)
- Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993) (treaties and extraterritoriality considerations in foreign commerce)
- Sabhnani v. United States, 599 F.3d 215 (2d Cir. 2010) (principles governing criminal omissions and duties to act)
- Ionia Management S.A. v. United States, 555 F.3d 303 (2d Cir. 2009) (interpretation of APPS duties and extraterritorial scope in record-keeping)
- United States v. Jho, 534 F.3d 398 (5th Cir. 2008) (omissions and false statements in ORBs under U.S. law)
- United States v. Delgado-Garcia, 374 F.3d 1337 (D.C. Cir. 2004) (foreign conduct and domestic law interaction in criminal liability)