IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 30, 2008
No. 06-41749 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
KUN YUN JHO, OVERSEAS SHIPHOLDING GROUP INC
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
Before GARZA, STEWART, and OWEN, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
The government appeals the district court’s dismissal of criminal charges
against Kun Yun Jho (“Jho”) and Overseas Shipholding Group, Inc. (“OSG”).
The counts dismissed by the district court charged that Jho and OSG knowingly
failed to maintain an oil record book aboard OSG’s ship the M/T PACIFIC
RUBY in violation of 33 U.S.C. § 1908(a) and 33 C.F.R § 151.25. For the
following reasons, we reverse the district court’s dismissal and remand.
I
The M/T PACIFIC RUBY, a ship owned by OSG, transfers bulk petroleum
from off-shore oil tankers to ports along the Gulf of Mexico. The M/T PACIFIC
RUBY flies the flag of the Marshall Islands. During the time period at issue,
No. 06-41749
Jho served as the Chief Engineer on the ship and was responsible for the engine
department operations on the ship. This position included responsibility for
making entries in the ship’s oil record book. An oil record book includes, among
other things, a log of the ship’s discharge and disposal of oil and certain oil-water
mixtures. See 33 C.F.R. § 151.25(a), (d).
Based on a tip from another engineer on the M/T PACIFIC RUBY
describing unlawful discharges from the ship, the Coast Guard conducted an
inspection of the ship during a stop in Port Neches, Texas. The tipster also
alleged that Jho manipulated some of the ship’s pollution-detection equipment
so that it would not recognize discharges with higher oil-content than that
allowed under United States law. The Coast Guard met with the ship’s captain
and with Jho. They discussed oil record book entries with Jho. After this
inspection, the Coast Guard determined that the ship appeared to be in
compliance, and no action was taken. During a subsequent inspection at
another port stop soon thereafter, the Coast Guard discovered evidence
corroborating the tipster’s allegations of unlawful discharges and tampering
with the ship’s equipment.
Based on the Coast Guard’s inspections, the government brought charges
against Jho and OSG. In a second superseding indictment, the government
charged ten counts against both Jho and OSG: one count of conspiracy, 18
U.S.C. § 371 (“Count 1”); one count of making false statements to Coast Guard
officials, 18 U.S.C. § 1001 (“Count 2”); and eight counts of knowing failure to
maintain an oil record book, 33 U.S.C. § 1908(a), 33 C.F.R. § 151.25 (“Counts 3-
10”). Count 1 charged Jho and OSG with conspiracy to violate 18 U.S.C. § 1001,
33 U.S.C. § 1908, and 18 U.S.C. § 1519. The eight counts charged under
§ 1908(a) correspond to eight different times at which the M/T PACIFIC RUBY
allegedly entered a United States port with a knowingly inaccurate oil record
book.
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Jho and OSG each moved to dismiss their indictments on numerous
grounds. Both defendants argued that international law prohibits the
government from prosecuting the oil record book offenses charged in the
indictments. The magistrate judge recommended that the motions to dismiss be
denied in their entirety. The district judge partially modified the magistrate
judge’s recommendation. The district court agreed with Jho and OSG that
international law prevented their prosecution for the record book offenses.
Accordingly, the district court granted the defendants’ motions to dismiss as to
Counts 3-10, as well as to Count 1 so far as any conspiracy stemmed from the oil
record book offenses. The district court denied the motions to dismiss as to
Count 2 and as to the conspiracy charges in Count 1 that were unrelated to
§ 1908. The government appeals the district court’s dismissal of the oil record
book counts and the conspiracy count connected to the oil record book offenses.
II
The Act to Prevent Pollution from Ships (“APPS”), 33 U.S.C. § 1901, et
seq., represents Congress’ implementation of two related marine environmental
treaties to which the United States is a party: the 1973 International Convention
for the Prevention of Pollution from Ships and the Protocol of 1978 Relating to
the International Convention for the Prevention of Pollution from Ships.
Together, these treaties are generally referred to as MARPOL 73/78
(“MARPOL”). These treaties specifically target the prevention of oil pollution in
the sea. The APPS authorizes the Coast Guard to “prescribe any necessary or
desired regulations to carry out the provisions of the MARPOL protocol . . . .” 33
U.S.C. § 1903(b)(1). The APPS prohibits violations of MARPOL, the APPS, and
the regulations promulgated pursuant to § 1903(b). In terms of criminal
sanctions, the APPS provides that, “[a] person who knowingly violates the
MARPOL Protocol . . . this chapter, or the regulations issued thereunder
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No. 06-41749
commits a Class D felony.” 33 U.S.C. § 1908(a). Civil penalties are available for
any violation, whether knowing or not. See 33 U.S.C. § 1908(b).
The criminal charges brought against Jho and OSG under § 1908(a) arise
from alleged knowing violations of oil record book requirements outlined in 33
C.F.R. § 151.25. In order to help monitor and prevent pollution from oil
discharges, the APPS regulations require that ships over a certain tonnage
“maintain” an oil record book. See 33 C.F.R. § 151.25(a). The regulation states
that the “master or other person having charge of [the] ship” is responsible for
“maintenance of such record.” Id. at 151.25(j).1 The oil record book must be kept
on board the ship and “be readily available for inspection at all reasonable
times.” Id. at 151.25(I). APPS regulations give the Coast Guard authority to
board the ship and inspect the ship for compliance with MARPOL, the APPS,
and APPS regulations. Id. at 151.23(a); see 14 U.S.C. §89(a). In conducting
inspections to identify vessels that have polluted or are likely to pollute2 in
violation of the APPS, Coast Guard personnel rely on statements of the vessel’s
crew as well as the vessel’s registration and compliance documentation. The
Coast Guard’s inspection authority includes the ability to examine the oil record
book kept by a ship. See 33 C.F.R. § 151.23(c).
The APPS provides two pertinent limitations on the application of
§ 1908(a) and 33 C.F.R. § 151.25. First, the record book requirements of 33
C.F.R. § 151.25 only apply to foreign-flagged ships, such as the M/T PACIFIC
RUBY, “while in the navigable waters of the United States, or while at a port or
terminal under the jurisdiction of the United States.” 33 C.F.R. § 151.09(a)(5);
1
On appeal, Jho argues that he is not the “master or other person having charge of [the] ship.”
The district court mentioned this point, but did not rely on it in making its decision. See United States
v. Kun Yun Jho, 465 F. Supp. 2d. 618, 624 n. 2 (E.D. Tex. 2006). Even assuming this to be true, it is
inapposite as the government charged Jho with aiding and abetting the oil record book offenses.
2
APPS regulations allow the Coast Guard to detain a ship if its violations indicate that the ship
presents “an unreasonable threat of harm to the marine environment.” 33 C.F.R. § 151.23(b).
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No. 06-41749
see also 33 U.S.C. § 1902(a) (limiting application of the APPS to foreign-flagged
vessels while they are in the “navigable waters of the United States”). Second,
the APPS states that, “[a]ny action taken under [Chapter 33] shall be taken in
accordance with international law.” 33 U.S.C. § 1912. Focusing on the
limitation imposed by § 1912, the district court dismissed the oil record book
counts against Jho and OSG. As phrased by the district court, § 1912
“circumscribes” the enforcement scheme created by APPS and prevents the
government from prosecuting a § 1908(a) violation where prosecution would
violate principles of international law. See United States v. Kun Yun Jho, 465
F. Supp. 2d. 618, 624 (E.D. Tex. 2006). Because the district court held that
prosecution of the oil record book offenses would violate principles of
international law, it dismissed those counts of the indictments against Jho and
OSG. Id. at 624-26.
We review de novo a district court’s dismissal of an indictment based on
its interpretation of the underlying criminal statute. See United States v. Flores,
404 F.3d 320, 326 (5th Cir. 2005).
III
A
The district court stated that “[h]ere, the United States government is
seeking to criminally prosecute a foreign flag ship for alleged violations of U.S.
Coast Guard regulations that occurred aboard ship and outside U.S. waters.”
Jho, 465 F. Supp. 2d. at 625 (citing 33 C.F.R. § 151.25). Framing the alleged
criminal conduct in this way, the district court identified multiple sources of
international law that it found to prevent prosecution pursuant to 33 U.S.C.
§ 1912. Before reaching those sources, we first conclude that the district court
erred in construing the criminal conduct alleged against Jho and OSG to have
occurred “outside U.S. waters.”
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No. 06-41749
The indictment alleges that Jho failed to maintain an accurate oil record
book on eight separate dates. On each of the dates listed in the indictment, the
M/T PACIFIC RUBY docked in a U.S. port. In contrast to the district court’s
characterization of the oil record book offenses, we read the indictment to allege
eight knowing failures to maintain an oil record book that each occurred entirely
within the ports of the United States. As explained below, the statute, its
purposes, and related case law reinforce this reading of the indictment.
The defendants argue that § 151.25's requirement that an oil record book
be “maintained” does not impose a separate substantive duty. Instead, the
defendants contend that the only duty imposed under § 151.25 is a duty to make
the requisite entries in the oil record book. Consequently, the defendants claim
that the offense conduct took place outside of U.S. ports or navigable waters
because the allegedly incorrect entries were made in international waters.
However, ignoring the duty to maintain puts the regulation at odds with
MARPOL and Congress’ clear intent under the APPS to prevent pollution at sea
according to MARPOL.3 Under 33 C.F.R. § 151.09 and 33 U.S.C. § 1902(a), the
record book requirements may be enforced against foreign-flagged ships only for
violations that occur within the navigable waters of the United States, or while
at a port or terminal under the jurisdiction of the United States. Accurate oil
record books are necessary to carry out the goals of MARPOL and the APPS. If
the record books did not have to be “maintained” while in the ports or navigable
waters of the United States, then a foreign-flagged vessel could avoid application
of the record book requirements simply by falsifying all of its record book
information just before entry into a port or navigable waters. If the oil record
3
MARPOL provides the basis for the oil record book requirements found in § 151.25. See
MARPOL Annex I, Reg. 20, reprinted in MARPOL 73/78: Articles, Protocols, Annexes, Unified
Interpretations of the International Convention for the Prevention of Pollution from Ships, 1973, as
modified by the Protocol of 1978 relating thereto 94 (Int’l Mar. Org. 2001). MARPOL also allows for
concurrent jurisdiction between a flag state and a non-flag state when MARPOL violations occur within
the jurisdiction of the non-flag state. See MARPOL art. 4(2), reprinted in MARPOL 73/78 at 5.
6
No. 06-41749
book requirements could be avoided in this manner, the Coast Guard’s ability to
conduct investigations against foreign-flagged vessels would be severely
hindered, and the regulation would allow polluters (and likely future polluters)
to avoid detection. We refuse to conclude that by imposing limitations on the
APPS’s application to foreign-flagged vessels Congress intended so obviously to
frustrate the government’s ability to enforce MARPOL’s requirements. Instead,
we read the requirement that an oil record book be “maintained” as imposing a
duty upon a foreign-flagged vessel to ensure that its oil record book is accurate
(or at least not knowingly inaccurate) upon entering the ports of navigable
waters of the United States.
Other courts have recognized that 33 U.S.C § 1908(a) and 33
C.F.R. § 151.25 impose criminal liability on foreign-flagged vessels for conduct
carried out within the ports and navigable waters of the United States. The
Third Circuit recently addressed the scope of offense conduct under 33 C.F.R. §
151.25 for the purposes of a relevant conduct analysis under the Sentencing
Guidelines. See United States v. Abrogar, 459 F.3d 430 (3d Cir. 2006). Abrogar
pleaded guilty to a charge of knowing failure to maintain an oil record book
under § 1908(a) and § 151.25. See id. at 433. Abrogar did not dispute the
content of the charge. However, the court was required to determine the scope
of his offense conduct for purposes of its relevant conduct analysis. The court
concluded that “the precise nature of Abrogar’s offense of conviction under the
Guidelines is most accurately described as failure to maintain an accurate oil
record book while in the navigable waters of the United States.” Id. at 435
(internal quotation marks omitted). In reaching this conclusion, the court noted
that the APPS and its regulations “exclude from criminal liability the failure to
maintain an accurate oil record book by foreign vessels outside U.S. waters.” Id.
(internal quotation marks omitted).
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Explicitly rejecting the reasoning of the district court in this case, two
district courts recently held that knowing violations of 33 C.F.R. § 151.25 carried
out by foreign-flagged vessels in U.S. ports may be prosecuted under 33
U.S.C. § 1908(a) as wholly domestic offenses. See United States v. Ionia
Management, S.A., 498 F. Supp. 2d 477, 485 (D. Conn. 2007); United States v.
Petraia Maritime, Ltd., 483 F. Supp. 2d. 34, 39 (D. Me. 2007). In Ionia
Management, the court recognized that the “gravamen” of the action was “not
the pollution itself, or even the Oil Record Book violation occurring at that time,
but the misrepresentation in port.” 498 F. Supp. 2d at 487 (quoting United States
v. Royal Caribbean Cruises, Ltd., 11 F. Supp. 2d 1358, 1371 (S.D. Fla. 1998)).4
We read the government’s indictment in this case in a similar fashion, as
charging Jho and OSG with failing to maintain the oil record book while in port.
For the foregoing reasons, we conclude that 33 U.S.C. § 1908(a) can be
read to criminalize knowing violations of 33 C.F.R. § 151.25 carried out by
foreign-flagged vessels while in a United States port, and that the government’s
indictment charges such conduct against Jho and OSG. On appeal, Jho and
OSG argue that charging eight counts under § 1908(a) amounts to a
multiplicitous indictment, because the same offense conduct is charged in
multiple counts of the indictment. See United States v. Planck, 493 F.3d 501,
503 (5th Cir. 2007) (“In deciding whether an indictment is multiplicitous, we
4
The Royal Caribbean court reached a similar conclusion for a criminal charge brought under
18 U.S.C. § 1001: holding that presentation of an inaccurate oil record book in a U.S. port establishes
a domestic violation of the False Statement Act. See Royal Caribbean, 11 F. Supp. 2d at 1371. The
district courts in Ionia Management and Petraia Maritime both relied on the Royal Caribbean case in
reaching their holdings under § 1908. In Ionia Management, the court considered a charge brought
under § 1908 based on the defendant’s actions during a U.S. Coast Guard inspection. 498 F. Supp. 2d
at 480 (“Count two charges that defendant . . . knowingly failed and caused the failure to maintain an
Oil Record Book . . . during a U.S. Coast Guard inspection.”). While the facts underlying the charge in
Petraia Martime are unclear, the court’s heavy reliance on Royal Caribbean suggests that the court
only considered the “presentation” of a false or inaccurate record book. See Petraia Maritime, 483 F.
Supp. 2d at 39 (“The case at hand presents no distinguishing facts or circumstances [from Royal
Caribbean].”).
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look to whether separate and distinct prohibited acts, made punishable by law,
have been committed.”). The government contends that Jho and OSG committed
a distinct criminal act each time they entered a port of the United States with
a record book known to be inaccurate, and therefore, the M/T PACIFIC RUBY’s
eight separate port entries constitute eight separate violations. The district
court did not consider this issue and the record is not developed sufficiently to
allow us to determine at this time how many counts properly can be charged
against Jho and OSG in this case. Accordingly, we leave to the district court, in
the first instance, the question of whether the indictments are multiplicitous.
B
With the port-based nature of the offense conduct in mind, we now turn
to whether international law limits the prosecution of the oil record book counts.
“A sovereign nation has exclusive jurisdiction to punish offenses against its laws
committed within its borders, unless it expressly or impliedly consents to
surrender its jurisdiction.” Wilson v. Girard, 354 U.S. 524, 529 (1957). In
Cunard S.S. Co. v. Mellon, the Supreme Court recognized “that the territory
subject to [United States’] jurisdiction includes the land areas under its
dominion and control, the ports, harbors, bays and other enclosed arms of the sea
along its coast and a marginal belt of the sea extending from the coast line
outward a marine league, or three geographic miles.” 262 U.S. 100, 122 (1923)
(emphasis added). Further, “[i]t is part of the law of civilized nations that,
when a merchant vessel of one country enters the ports of another for the
purposes of trade, it subjects itself to the law of the place to which it goes, unless,
by treaty or otherwise, the two countries have come to some different
understanding.” Mali v. Keeper of the Common Jail, 120 U.S. 1, 11 (1887)
(“Widenhus’ Case”); see United States v. Dickelman, 92 U.S. 520, 525 (1875) (“The
merchant vessels of one country visiting the ports of another for the purpose of
trade subject themselves to the laws which govern the port they visit, so long as
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they remain.”); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 512,
reporter’s note 5 (1987) (same). A state’s exercise of jurisdiction over foreign-
flagged ships in its ports is permissive, and a port state may, based on comity
concerns, decide not to exercise its jurisdiction. See Widenhus’ Case, 120 U.S. at
12; Thomas J. Schoenbaum, 1 ADMIRALTY AND MARITIME LAW § 3-12, at 148 (4th
Ed. 2004). However, the United States has decided to exercise its criminal
jurisdiction in this case, and thus, the charges against Jho and OSG will stand
unless the United States has consented to surrender its jurisdiction to prosecute
oil record book offenses carried out in United States’ ports. See Cunard, 262
U.S. at 125-29 (holding that, because the statute did not reflect any limitation
on the traditional scope of United States’ jurisdiction, the National Prohibition
Act applied to foreign-flagged vessels while in United States’ territorial waters
or ports); cf. Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 142-147
(1957) (holding that Congress did not intend the Labor Management Relations
Act to apply to labor disputes aboard a foreign ship operated entirely by foreign
seamen, simply because the ship was picketed by American unions while
temporarily in an American port).
Jho and OSG argue that § 1912 represents the United States’ consent to
surrender its jurisdiction to prosecute APPS violations where prosecution is not
“in accordance with international law.” 33 U.S.C. § 1912. However, the sources
of international law relied upon by the district court in dismissing the oil record
book charges do not limit the government’s jurisdiction to prosecute violations
of domestic law committed in port. First, the district court relied on the law of
the flag doctrine. The traditional statement of the doctrine provides that a
merchant ship is part of the territory of the country whose flag she flies, and
that actions aboard that ship are subject to the laws of the flag state. See
Cunard, 262 U.S. at 123. However, the district court read this doctrine too
broadly in finding that it prevented the prosecution of the oil record book
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No. 06-41749
offenses in this case. Even Lauritzen v. Larsen, 345 U.S. 571 (1953), a choice of
law case which the district court cited for its statement of the law of the flag,
recognized that jurisdiction may be exercised concurrently by a flag state and a
territorial state. See Lauritzen, 345 U.S. at 585 (citing United States v. Flores,
289 U.S. 137, 155-59(1933)). The law of the flag doctrine does not mandate that
anything that occurs aboard a ship must be handled by the flag state. In fact,
the Supreme Court has recognized that the law of the flag doctrine does not
completely trump a sovereign’s territorial jurisdiction to prosecute violations of
its laws: “[The law of the flag doctrine] is chiefly applicable to ships on the high
seas, where there is no territorial sovereign; and as respects ships in foreign
territorial waters it has little application beyond what is affirmatively or tacitly
permitted by the local sovereign.” Cunard, 262 U.S. at 123; see RESTATEMENT
(THIRD) OF FOREIGN RELATIONS LAW § 502, cmt. d (1987) (“The flag
state[’s] . . . jurisdiction is not exclusive when the ship is in a port or internal
waters of another state.”). We note also that the limitations imposed by 33
U.S.C. § 1902 and 33 C.F.R. § 151.09 track the general principles of the law of
the flag. Accordingly, we find that the oil record book offenses in this case were
charged “in accordance with” the law of the flag. See 33 U.S.C. § 1912.
The district court also relied on articles 216 and 230 of the THIRD UNITED
NATIONS CONVENTION ON THE LAW OF THE SEA (1982), 21 I.L.M. 1245 (1982)
(hereinafter UNCLOS). See Jho, 465 F. Supp. 2d at 625. The United States is
not a party to UNCLOS as the Senate has not ratified the treaty.5 As such, the
“international law” referred to in § 1912 incorporates UNCLOS only to the
extent that UNCLOS reflects customary international law. See Mayaguezanos
5
See U.S. Const. art. II, § 2 (“[The President] shall have power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”); United
Nations, Chronological list of ratifications of, accessions and successions to the Convention,
http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm#The%20United%20
Nations%20Convention%20on%20the%20Law%20of%20the%20Sea (indicating that as of June 4, 2008
the United States had not ratified UNCLOS).
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por la Salud y el Ambiente v. United States, 198 F.3d 297, 304 n. 14 (1st Cir.
1999) (“[UNCLOS] has been signed by the President, but it has not yet been
ratified by the Senate. Consequently, we refer to UNCLOS only to the extent
that it incorporates customary international law.”). Whether these particular
UNCLOS articles constitute customary international law is a question that we
need not answer at this time.6 Assuming arguendo that these provisions of
UNCLOS constitute international law under § 1912, they do not require
dismissal of the oil record book counts in this case.
The district court first relied on article 216(1) of UNCLOS.7 Article 216(1)
provides that certain laws and regulations for the prevention, reduction and
control of pollution by “dumping” shall be enforced:
(a) by the coastal State with regard to dumping within its territorial
sea or its exclusive economic zone or onto its continental shelf;
(b) by the flag State with regard to vessels flying its flag or vessels
or aircraft of its registry;
(c) by any State with regard to acts of loading of wastes or other
matter occurring within its territory or at its off-shore terminals.
UNCLOS art. 216(1), 21 I.L.M. at 1312 (emphasis added). UNCLOS defines
“dumping” as “any deliberate disposal of wastes or other matter from vessels,”
but notes that “dumping does not include . . . the disposal of wastes or other
6
Sources are unclear as to which provisions of UNCLOS constitute customary international
law. See United States v. Alaska, 503 U.S. 569, 588 n. 10 (1992) (indicating that the United States
conceded that the coastal “baseline provisions” of UNCLOS reflect customary international law); Lori
F. Damrosch et al., INTERNATIONAL LAW: CASES AND MATERIALS 1385-88 (4th ed.2001) (stating that
many provisions of UNCLOS are established as customary international law of the sea); Thomas J.
Schoenbaum, 1 ADMIRALTY AND MARITIME LAW § 2-2, at 23-25 (4th Ed. 2004) (examining which portions
of UNCLOS have been recognized by the United States). A panel of the Ninth Circuit recently
assumed, seemingly without deciding, that UNCLOS constitutes customary international law for the
purposes of establishing a claim under the Alien Tort Claims Act. See Sarei v. Rio Tinto, PLC, 487 F.3d
1193, 1210 (9th Cir. 2007). Sarei is currently set for rehearing en banc before the Ninth Circuit. See
499 F.3d 923 (9th Cir. 2007).
7
The district court treated Article 216 as a “codification of the long-standing international
maritime rule known as ‘the law of the flag.’” Jho, 465 F. Supp. 2d at 625. To the extent that the
district treated article 216 as a codification of the law of the flag, we reject its reliance on article 216
for the same reasons stated, supra, regarding the law of the flag doctrine.
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No. 06-41749
matter incidental to, or derived from normal operations of vessels.” UNCLOS
art. 1(5), 21 I.L.M. at 1271. The district court also referred to article 230(2)
which provides:
Monetary penalties only may be imposed with respect to violations
of national laws and regulations or applicable international rules
and standards for the prevention, reduction and control of pollution
of the marine environment, committed by foreign vessels in the
territorial sea, except in the case of a wilful and serious act of
pollution in the territorial sea.
UNCLOS art. 230(2), 21 I.L.M. at 1315 (emphasis added).
In prescribing the power to enforce marine pollution laws, UNCLOS
provides for three categories of states: port states, coastal states, and flag states.
See UNCLOS art. 217, 218, and 220, 21 I.L.M. at 1312-13 (describing
enforcement by flag states, port states, and coastal states respectively). Port
states may exercise jurisdiction over a foreign-flagged vessel while that vessel
is voluntarily in the state’s port. See UNCLOS art. 218 & 220(1), 21 I.L.M. at
1312-13; RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 512, reporter’s note
5 (collecting Supreme Court cases). Coastal states may exercise jurisdiction to
enforce pollution laws against foreign-flagged vessels operating in the state’s
“coastal zones,” which are geographic belts of the sea extending a certain limited
distance from the state’s coast. See UNCLOS art. 220(2)-220(8), 21 I.L.M. at
1313; Schoenbaum, 1 ADMIRALTY AND MARITIME LAW §§ 2-16-2-18 (describing
zones of maritime jurisdiction); RESTATEMENT (THIRD) OF FOREIGN RELATIONS
LAW § 511 (same). The “territorial sea” referred to in Article 230(1) above is a
coastal zone defined by UNCLOS as a belt of sea not exceeding 12 nautical miles
from the coast. See UNCLOS art. 3, 21 I.L.M. at 1272.8 Flag states may exercise
8
The Restatement tracks the UNCLOS definition of four “coastal zones”: (1 )the “territorial sea:
a belt of sea that may not exceed 12 nautical miles” from the coastal baseline; (2) the “contiguous zone:
a belt of sea contiguous to the territorial sea, which may not extend beyond 24 nautical miles from the
baseline from which the breadth of the territorial sea is measured”; (3) “the continental shelf”; and (4)
“the exclusive economic zone: a belt of sea beyond the territorial sea that may not exceed 200 nautical
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jurisdiction over those vessels registered in the flag state. See UNCLOS art.
217, 21 I.L.M. at 1312; RESTATEMENT(THIRD) OF FOREIGN RELATIONS LAW § 502.
The M/T PACIFIC RUBY is registered in and flies the flag of the Marshall
Islands, and thus is a foreign-flagged vessel in relation to the United States.9
UNCLOS’s labeling of coastal states and port states is not static. The
categorization depends upon a foreign-flagged vessel’s proximity to a state, and
whether that vessel has voluntarily entered the state’s port. For example, while
the M/T PACIFIC RUBY was in the coastal zones of the United States, the
United States operated as a coastal state under UNCLOS. During the times
that the M/T PACIFIC RUBY was voluntarily in a U.S. port, the United States
was authorized to act as a port state under UNCLOS.
The UNCLOS provisions cited by the district court represent only a
selected portion of the international enforcement scheme created by UNCLOS
for the protection and preservation of the marine environment.10 Articles 216
and 230(2) concern the enforcement power of flag states and coastal states; these
specific provisions fail to reflect the fact that UNCLOS actually broadens the
traditional authority given to a port state. Neither these provisions nor any
other provisions of the UNCLOS enforcement scheme suggest that the
limitations imposed by articles 216 and 230 apply to the in-port, oil record book
offenses charged in this case.
miles from the baseline from which the breadth of the territorial sea is measured.” See RESTATEMENT
(THIRD) OF FOREIGN RELATIONS LAW § 511 (relying on articles 2, 3, 5, 8, 33, 55, 57, and 76 of UNCLOS).
The coastal state’s authority to pursue offenses against its laws and its ability to claim to natural
resources differ depending on the particular coastal zone at issue. See id. at cmt. a.
9
The Republic of the Marshall Islands is an island nation in the Pacific Ocean. The Marshall
Islands obtained independence in 1986 after almost four decades as a U.N. territory under United
States administration. See, CIA World Factbook, Marshall Islands,
https://www.cia.gov/library/publications/the-world-factbook/geos/rm.html (last updated June 10, 2008).
10
Part XII of UNCLOS, or articles 192-237, provides for the “Protection and Preservation of the
Marine Environment.” 21 I.L.M. at 1308-1316. The powers of and limitations on enforcement of
marine pollution laws are found at articles 213-33. See 21 I.L.M. at 1311-1315.
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With respect to criminal jurisdiction, article 27 of UNCLOS provides
specific limitations on a coastal state’s exercise of jurisdiction over a foreign-
flagged vessel passing through the coastal state’s territorial sea. See UNCLOS
art. 27(1), 21 I.L.M. at 1275. However, these limitations disappear when a
foreign vessel “pass[es] through the territorial sea after leaving internal
waters”))in those circumstances a coastal state may exercise its criminal
jurisdiction by taking “any steps authorized by its laws for the purpose of an
arrest or investigation on board a foreign ship.” UNCLOS art. 27(2), 21 I.L.M.
at 1275; See Schoenbaum, 1 ADMIRALTY AND MARITIME LAW § 2-14, at 36 n. 4.
Article 27 suggests that, under UNCLOS, the criminal jurisdiction of a coastal
state expands in relation to a foreign-flagged vessel’s proximity to the state.
While article 27 speaks specifically to coastal states, this proximity principle is
consistent with the greater power given to port states as compared to coastal
states regarding enforcement of marine pollution laws under Part XII of
UNCLOS.
As discussed above, it has long been established that a state has the power
to prosecute violations of its laws committed by foreign-flagged vessels in its
ports, as long as the port state has not abdicated the authority to do so.
UNCLOS does not limit, but broadens, this traditional rule when it comes to the
power of port states to enforce marine pollution laws. The enforcement scheme
created by UNCLOS provides port states the power to pursue violations beyond
those that occur in its ports. UNCLOS allows port states to pursue violations of
marine pollution laws that occur within the port state’s territorial sea or
exclusive economic zone. See UNCLOS art. 220(1), 21 I.L.M. at 1313. UNCLOS
goes further in broadening the authority of port states in order to increase their
role in preventing marine pollution. Article 218 provides a port state with power
to institute proceedings based on pollution violations that occurred entirely
outside its coastal zones. See UNCLOS art. 218, 21 I.L.M. at 1312-13;
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No. 06-41749
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §512, reporter’s note 7; Ted
L. McDorman, Port State Enforcement: A Comment on Article 218 of the 1982
Law of the Sea Convention, 28 J. MAR. L. & COM. 305, 312-322 (1997) (noting
that UNCLOS article 218 expands the jurisdiction of a port state to institute
proceedings, in certain circumstances, against foreign-flagged vessels based on
offenses that occurred on the high seas).
The specific UNCLOS provisions cited by the district court, articles 216
and 230, do not limit the authority exercised by port states under UNCLOS.
Article 216 provides that coastal states may seek enforcement against vessels
when “dumping” occurs “within its territorial sea or its exclusive economic zone
or onto its continental shelf.” Under article 216, flag states may enforce
dumping laws against ships bearing its registry. And article 230(2) limits the
remedies available to a state pursuing “violations . . . committed by foreign
vessels in the territorial sea [i.e., a coastal zone].” Nothing in these articles or
the remaining provisions of the UNCLOS enforcement scheme limits the power
of a state to prosecute violations of its criminal laws that occur after a ship has
voluntarily entered its port. Instead, UNCLOS broadens the traditional
authority of a port state to allow a port state to pursue violations of marine
pollution law that occur outside of its ports, and in some circumstances, outside
of its coastal zones.11
In sum, we reject the idea that 33 U.S.C. § 1912 prevents prosecution of
the oil record book offenses charged against Jho and OSG. Neither UNCLOS nor
11
In urging ratification of UNCLOS, the Senate Committee on Foreign Relations submitted an
Executive Report to the Senate. S. Exec. Rep. No. 108-10 (2004). In the report, the Committee stated
the following in explaining its interpretation of UNCLOS’s enforcement scheme:
The United States understands that sections 6 and 7 of Part XII [i.e., UNCLOS’s
enforcement sections] do not limit the authority of a State to impose penalties,
monetary or nonmonetary, for . . . any violation of national laws and
regulations . . . [concerning] the prevention, reduction and control of pollution of the
maritime environment that occurs while a foreign vessel is in any of its ports, rivers,
harbors, or offshore terminals.
Id. at 20 (emphasis added).
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the law of the flag doctrine encroaches on the well-settled rule that a sovereign
may exercise jurisdiction to prosecute violations of its criminal laws committed
in its ports. Far from signaling an abdication of this traditional authority, the
APPS indicates Congressional willingness to criminalize knowing violations of
MARPOL, the APPS, and APPS regulations committed by foreign-flagged ships
while in United States’ ports and navigable waters. See 33 U.S.C. §§ 1908(a) &
1902(a); 33 C.F.R. § 151.09. Because the conduct the government charges
against Jho and OSG in Counts 3-10 occurred entirely within the ports of the
United States, 33 U.S.C. § 1912 presents no obstacle to the government’s
prosecution of those counts.
IV
For the foregoing reasons, we REVERSE the district court’s dismissal of
the oil record book charges brought against Jho and OSG under 33 U.S.C.
§ 1908(a) and 33 C.F.R. § 151.25 in Counts 3-10, as well as its dismissal of the
conspiracy charge in Count 1 so far as it derives from the oil record book
offenses. We REMAND for further proceedings consistent with this opinion.
17