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10 Maritime Professional 2Q 2011 internal investigation to develop a complete factual record and to pro- vide legal advice concerning any corrective actions or reporting obli- gations that may exist. Seizing the initiative in the development and management of such information can help to control the potential negative consequences of any iden- tified MARPOL deficiency, while strengthening the company’s over- all environmental compliance program.

REVIVING THE ROLE OF THE FLAG STATE

The maritime environmental enforcement program in

United States ports over the past several years has signifi- cantly distorted the MARPOL compliance and enforcement regime that is embodied in the Law of the Sea Convention (“UNCLOS”) and in the MARPOL Convention itself. For many reasons, both UNCLOS and MARPOL vest primary responsibility for oversight of environmental compliance in the Maritime Administration of the flag State. From the issuance or endorsement of a vessel’s International Oil

Pollution Prevention certificate, to the development and dis- tribution of ORB’s, to annual vessel inspections and renewals of Documents of Compliance, the flag State is intended to have primary, on-going responsibility for ensuring compli- ance with environmental requirements and, if a deficiency is identified, evaluating what corrective action or enforcement response may be warranted.

The central role for the flag State with respect to compli- ance with environmental responsibilities parallels the range of other oversight responsibilities for vessel operations under international conventions that are vested with the flag State, all of which flow logically from an Administration’s compre- hensive knowledge of and relationship with a vessel’s owners and technical managers. While port and coastal states are authorized under both UNCLOS and MARPOL to perform port State control inspections or to investigate and consider enforcement actions for pollution events occurring in their territorial waters, under both conventions these functions are secondary to the primary environmental compliance assur- ance role reserved to the flag State.

Early MARPOL enforcement cases brought by the United

States were generally consistent with the international regu- latory regime in that the cases brought against foreign flag ships were based on discharges of oil or plastic wastes that occurred in

U.S. territorial waters. Over the years, “mission creep” has vastly expanded the scope of U.S. MAR-

POL enforcement program to the point where it is now wholly irrel- evant where the alleged improper discharges occurred. In fact, none of the recent MARPOL enforcement cases brought in the

United States have involved allegations of intentional pollu- tion in U.S waters. Rather, in its role as port State, the United

States has abrogated unto itself the primary compliance assurance role that was intended by international law to be performed by the flag State. This situation has developed over time due to a number of factors which include substan- tial financial awards for whistleblowers, the comparative pas- sivity of major Administrations with respect to MARPOL compliance assurance and enforcement and finally, the reluc- tance of vessel owners and managers to discuss information regarding MARPOL compliance issues with the

Administration and to resolve those issues in that forum.

This distorted MARPOL enforcement pattern can and should be corrected. Vessel owners and managers, working to identify MARPOL compliance issues themselves by utilizing the management techniques outlined above, will be in a bet- ter position to determine how and under what terms the com- pliance issue will be resolved. For example, presume a situa- tion where a rogue Chief Engineer aboard a ship ignores company’s MARPOL compliance policies and directed dis- charges of oily mixtures through the use of a “magic pipe.” If the vessel’s owner and its manager are not attentive to this sit- uation, they are ceding significant authority to potential whistleblowers on board the ship, who will then collect evi- dence to document the violation and wait until they arrive at a United States port to disclose the information to the Coast

Guard. Under this scenario, the ability to investigate the alle- gations and determine an enforcement resolution has been yielded entirely to United States authorities.

If, however, the information regarding this MARPOL vio- lation was first obtained by the vessel’s shoreside manage- ment before it was packaged by the whistleblowers and reported to the United States, the vessel’s manager would be in a position to approach the Administration and develop a

Insights

The Department of Justice (DOJ) recently noted that 88 million gallons of oil are discharged illegally from vessels each year – more than eight times the amount spilled from the Exxon Valdez. Thus, until flag states increase serious enforcement of

MARPOL compliance, the United States will likely continue to be the world’s

MARPOL cop.