The opinion of the court was delivered by: Judge Beryl A. Howell
This case comes before the Court because the government and the defendants (a commercial fishing company and its employee) disagree about the appropriate jury instructions to be given regarding five counts of a superseding indictment charging the defendants with violations of a criminal marine pollution statute and associated criminal laws. The five counts at issue charge the defendants with conspiring to knowingly fail to maintain an accurate Oil Record Book in violation of 18 U.S.C. § 371; knowingly failing to maintain an accurate Oil Record Book in violation of 33 U.S.C. § 1908(a), 18 U.S.C. § 2, and 33 C.F.R. § 151.25; and knowingly making false, fictitious, and misleading entries in the Oil Record Book in violation of 18 U.S.C. §§ 2 and 1519. See Superseding Indictment at 7--16, ECF No. 22
The disagreement between the parties ostensibly relates to how the Court should instruct the jury with regard to the geographic scope of the application of United States law. More particularly, the disagreement stems from the parties' differing views on precisely what conduct the government is prosecuting as a crime and whether that conduct should be governed by United States law or the law of New Zealand. For the reasons discussed below, the Court believes not only that the defendants had a legal duty to record certain events in their Oil Record Book, but also that this duty arises under United States law, and therefore that it is both appropriate and fair to prosecute the defendants for their failure to record such events.
This case arises out of the defendants' commercial fishing operations in the South Pacific. Defendant Sanford Ltd. ("Sanford"), a New Zealand corporation, owned and operated the F/V San Nikunau- a purse-seine tuna vessel-and, for portions of 2007 to 2010, Defendant James Pogue was the Chief Engineer of the San Nikunau. Superseding Indictment at 2--3. The San Nikunau was registered under the flag administration of New Zealand, but it transported its fish cargoes to United States ports, including Pago Pago, American Samoa, on a regular basis. Id. In fact, the government charges that Sanford earned over $24 million in gross revenues from fish cargoes offloaded in American Samoa during the relevant time period. Id. at 3.
The San Nikunau and nearly every other commercial seafaring vessel are subject to marine pollution regulations. The relevant legal framework for the obligations arising under these regulations-and the crimes charged in this case-begins with two international marine pollution treaties: the 1973 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, 94 Stat. 2297, 1340 U.N.T.S. 61. Together, these treaties are known as "MARPOL," to which there are 150 signatories, including the United States and New Zealand. Because MARPOL is not self-executing, each signatory nation must enact domestic legislation implementing MARPOL's provisions. See MARPOL art. 1(1), 1340 U.N.T.S. 63. The United States implemented MARPOL through the Act to Prevent Pollution from Ships ("APPS"). See Pub. L. No. 96-478, 94 Stat. 2297 (1980) (codified as amended at 33 U.S.C. §§ 1901--1915).
Under the APPS, it is a crime to "knowingly violate the MARPOL Protocol . . . [the APPS], or the regulations issued thereunder." 33 U.S.C. § 1908(a). In turn, the United States Coast Guard has promulgated regulations under the authority of the APPS, which are located at 33 C.F.R. Part 151, Subpart A. In relevant part, the Coast Guard regulations require ships like the San Nikunau to maintain an Oil Record Book ("ORB"). See 33 C.F.R. § 151.25(a). These regulations also require that:
Entries shall be made in the Oil Record Book on each occasion, on a tank to tank basis if appropriate, whenever any of the following machinery space operations take place on any ship to which this section applies-
(1) Ballasting or cleaning of fuel oil tanks; (2) Discharge of ballast containing an oily mixture or cleaning water from fuel oil tanks; (3) Disposal of oil residue; and (4) Discharge overboard or disposal otherwise of bilge water that has accumulated in machinery spaces.
Id. § 151.25(d). Furthermore, any entry in the ORB that records a "discharge of oil or oily mixtures into the sea from a ship . . . or from machinery space bilges" must also record whether "[t]he ship has in operation oily-water separating equipment." See id. § 151.10.*fn1 If the Coast Guard determines that a vessel is not in compliance with any provision of MARPOL, the APPS, or the regulations promulgated thereunder (including § 151.25), it may deny the ship entry into United States ports or offshore terminals, see 33 U.S.C. § 1228; 33 C.F.R. § 151.07(b), or it may detain the ship in port until it is safe for the vessel to proceed to sea, see 33 C.F.R.§ 151.23(b).
In this case, the Superseding Indictment charges the defendants with two types of ORB violations: (1) affirmatively false ORB entries; and (2) failures to make entries in the ORB that are required to be made under § 151.25. The charged affirmatively false entries were ORB entries that "falsely stated the Oil Water Separator was used when in fact it was not" or, similarly, "falsely stat[ed] that required pollution prevention equipment had been used when it had not." See Superseding Indictment at 13--16. The charged omissions were failures to record discharges of oily bilge water from certain spaces on the vessel (such as the bow thruster space and ammonia compressor room), as well as intra-vessel tank-to-tank transfers of oil or oily bilge water. See id. at 9--10, 13--16.*fn2
This distinction between affirmatively false entries and omissions is the root of the true dispute regarding the jury instructions. All parties agree that affirmatively false entries in the ORB, if proven, would constitute violations of the APPS.*fn3 The defendants protest, however, that a violation premised on an omission necessarily reaches a failure to act on the high seas, where a vessel's conduct is governed by the laws of its flag State (in this case New Zealand). Thus, the defendants would like to make it clear in the APPS instructions to the jury that the relevant Coast Guard regulations "apply to vessels operated under the authority of other nations only when they are present within the navigable waters, ports, or terminals of the United States." See Pre-Trial Mem. Regarding the Proposed Jury Instructions on the Act to Prevent Pollution from Ships ("Defs.' Mem.") at 10, ECF No. 169. Additionally, in conformity with the defendants' construction of New Zealand MARPOL regulations, the defendants seek to limit the definitions and record-keeping requirements of 33 C.F.R. § 151.25 to apply only "with respect to engine room operations that occurred aboard the F/V San Nikunau while it was present within the navigable waters, ports, or terminals of the United States." Id. at 10--11.
The government, however, maintains that such additions are improper because they would require the oily bilge water discharges to have taken place in United States navigable waters, ports, or terminals in order for the accompanying omissions from the ORB to constitute a violation of United States law. See Pre-Trial Mem. Opposing Defendants' Proposed Amendments to the Jury Instructions on the Act to Prevent Pollution from Ships ("Gov't Mem.") at 1, ECF No. 172. According to the government, this is not the law. Rather, the government argues that it is a violation of the APPS to maintain an ORB in a United States port when that ORB fails to contain entries for machinery space operations that (a) occurred on the high seas, but, nevertheless, (b) are required by United States law to be recorded in the ORB. See id. at 7. This is so, they argue, because an APPS ORB violation is completed "when the jurisdictional elements of the offense are present-i.e., when the ship is in United States ports or waters," which is the case "even if all of the false entries or omissions relate to events that took place on the high seas." Reply to Defs.' Pre-Trial Mem. Regarding the Proposed Jury Instructions on the Act to Prevent Pollution from Ships ("Gov't Reply") at 2, ECF No. 181.
The reason that the defendants seek these modifications is two-fold. First, in the defendants' view, the MARPOL regulations enacted by New Zealand materially differ from the APPS and Coast Guard regulations, such that the defendants' conduct on the high seas fully complied with New Zealand law even if it did not comply with United States law. See Reply to Gov't's Pre-Trial Mem. Opposing Defendants' Proposed Amendments to the Jury Instructions on the Act to Prevent Pollution from Ships ("Defs.' Reply") at 4, ECF No. 180. Second, the defendants further argue that, because New Zealand law applied to their conduct on the high seas, the government cannot prosecute them for that conduct because the Superseding Indictment fails to reference New Zealand law. See id. at 3. The government's response is also two-fold. First, the government says that it is relying solely on United States law, not New Zealand law, because regardless of where the omissions from the ORB were made, it is still a violation of United States law to maintain an inaccurate ORB in a United States port. See Gov't Reply at 1-- 3. Second, the government argues, by citation to New Zealand MARPOL regulations, that any claimed conflict between New Zealand and United States law in this area is "non-existent" in any event. See Gov't Mem. at 1, 4--6.
Although the parties only began briefing the Court on these issues nine days ago, see Defs.' Mem. (filed July 18, 2012), continued to submit briefing on these issues up until two days ago, see Gov't Reply (filed July 25, 2012), and likewise presented oral argument on this issue two days ago, the fact remains that we stand on the eve of trial, which is set to begin in only three days. Therefore, the Court feels the need to decide this question post haste, since an issue as fundamental as the law that applied to the defendants' conduct is one that is sure to shape the presentations of both sides' cases at trial.
This case presents the question of whether the United States government may criminally prosecute a foreign-flagged vessel, under United States law, for failing to record conduct that took place outside the jurisdiction of the United States, and which the vessel may have had no obligation to record under its flag State's law. According to the defendants, this is a "question of first impression."*fn4 Defs.' Mem. at 7. To answer this question, the Court must consider a number of interrelated principles of maritime, international, and criminal law, and ultimately the Court finds that the answer to this question is yes.
A.Where Do ORB Omission Violations Take Place?
When Congress enacted the APPS, it placed two express limitations on the scope of its enforcement. First, the APPS statute states that "[a]ny action taken under [Chapter 33] shall be taken in accordance with international law." 33 U.S.C. § 1912. Second, the statute makes clear that the APPS and its regulations apply only to foreign-flagged vessels "while in the navigable waters of the United States." 33 U.S.C. § 1902(a)(2); see 33 C.F.R. § 151.09(a) (Coast Guard regulations under APPS "apply to each ship that . . . [i]s operated under the authority of a country other than ...