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United States v. MST Mineralien Schiffarht Spedition UND Transport GmbH

United States District Court, D. Maine

January 22, 2018



          Nancy Torresen United States Chief District Judge.

         On August 22, 2017, a federal grand jury indicted the Defendants on nine counts. Indictment (ECF No. 1). Counts One through Eight charge the Defendants with violations of the Act to Prevent Pollution from Ships, 33 U.S.C. § 1908(a) and 18 U.S.C. § 2, and Count Nine alleges obstruction of justice under 18 U.S.C. § 1519 and 18 U.S.C. § 2. The Defendants move to dismiss Counts One through Eight for failure to state an offense against the laws of the United States under Federal Rule of Criminal Procedure 12(b)(3)(B). (ECF No. 30.) For the following reasons, the Defendants' motion is DENIED.


         For the purposes of a motion to dismiss, I take the allegations of the Indictment as true. Boyce Motor Lines v. United States, 342 U.S. 337, 343 n. 16 (1952). The M/V Marguerita is a 19, 104 gross ton, ocean-going motor vessel. It is owned by Defendant Reederei MS Marguerita GmbH & Co. Geschlossene Investment-KG (“Reederei Marguerita”) and managed by MST Mineralien Schiffarht Spedition und Transport GmbH (“MST”), both of which are German-domiciled companies. The M/V Marguerita is registered by the Republic of Liberia.

         Large vessels like the M/V Marguerita generate oily wastes called machinery space bilge water when water mixes in the bottom of the vessel with oil that has leaked from the machinery or the lubrication and fuel systems. These oily mixtures are collected, stored, and processed to separate the water from the oil and other wastes using a pollution prevention control device known as an Oil-Water Separator and an oil-sensing device known as an Oil Content Monitor. Machinery space bilge water may only be discharged overboard after this separation process ensures that most of the oil has been removed. Under international and federal pollution laws, all disposals or transfers of machinery space bilge water must be recorded in the vessel's Oil Record Book (“ORB”).

         The M/V Marguerita's chief engineer was responsible for tracking the generation, transfer, and disposal of oily waste from the vessel and making timely entries of these occurrences in the ship's ORB. The M/V Marguerita's senior engineers were responsible for maintaining the ORB on behalf of the master. When the M/V Marguerita entered the Port of Portland on September 14, 2016, October 13, 2016, November 11, 2016, December 8, 2016, January 10, 2017, February 14, 2017, March 16, 2017, and April 11, 2017, the Defendants, acting through their agents and employees, knowingly failed to fully and accurately maintain the ORB.[1] Specifically, the book failed to include “(1) transfers of machinery space bilge water into the Fresh Water Drain Tank; (2) transfers of machinery space bilge water from the Fresh Water Drain Tank into the Grey Water Tank; and (3) discharges overboard of machinery space bilge water and oil residue.” Indictment ¶¶ 8, 10, 12, 14, 16, 18, 20, 22.


         An indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). An indictment is sufficient if it: “first . . . contains the elements of the offenses charged and fairly informs a defendant of the charge against which he must defend, and, second . . . enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). “An indictment that tracks the language of the underlying statute generally suffices to meet this standard; provided, however, that the excerpted statutory language sets out all of the elements of the offense without material uncertainty.” United States v. Troy, 618 F.3d 27, 34 (1st Cir. 2010) (quoting United States v. Serino, 835 F.2d 924, 929 (1st Cir. 1987)). Dismissal of an indictment is “an extraordinary step.” United States v. Stokes, 124 F.3d 39, 44 (1st Cir. 1997). “When a federal court uses its supervisory power to dismiss an indictment it directly encroaches upon the fundamental role of the grand jury. That power is appropriately reserved, therefore, for extremely limited circumstances.” Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1359 (1st Cir. 1995).


         I. Statutory Framework

         Congress passed the Act to Prevent Pollution on Ships (“APPS”) to implement two international environmental treaties: the International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 1340 U.N.T.S. 184, and the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, Feb. 17, 1978, 1340 U.N.T.S. 61. United States v. Ionia Mgmt. S.A. (“Ionia II”), 555 F.3d 303, 306 (2d. Cir. 2009). These treaties are collectively referred to as “MARPOL, ” and their purpose is to “achieve the complete elimination of international pollution of the marine environment by oil and other harmful substances.” 1340 U.N.T.S. at 128. MARPOL Annex 1 addresses the prevention of oil pollution, limits the oil content of discharges, and requires that transfers and discharge be recorded in the vessel's ORB.

         The APPS criminalizes knowing violations of MARPOL and the regulations issued thereunder. 33 U.S.C. § 1908(a); see also United States v. Abrogar, 459 F.3d 430, 434-35 (3d Cir. 2006). The APPS authorizes the United States Coast Guard to “prescribe any necessary or desired regulations to carry out the provisions of . . . MARPOL.” 33 U.S.C. § 1903(c)(1); see also 33 C.F.R. § 151.01 et seq.

         The regulation at issue in this case, 33 C.F.R. § 151.25, is captioned “Oil Record Book.” It provides that a “ship of 400 gross tons and above . . . shall maintain an Oil Record Book” that is kept “readily available for inspection at all reasonable times.” 33 C.F.R. §§ 151.25(a), (i). Under § 151.25, entries must be made in the ORB whenever there is “[d]isposal of oil residue” or “[d]ischarge overboard or disposal otherwise of bilge water that has accumulated in machinery spaces.” 33 C.F.R. §§ 151.25(d)(3)-(4).

These entries shall be fully recorded without delay in the Oil Record Book so that all the entries in the book appropriate to that operation are completed. Each completed operation shall be signed by the person or persons in charge of the operations concerned and each completed page shall ...

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