United States District Court, D. Maine
ORDER ON DEFENDANTS' MOTION TO DISMISS
Torresen United States Chief District Judge.
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.
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
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.
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
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. 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.
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).
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
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.
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.
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 ...