zao galaxy tanker

Recent APPS Case Shows Importance of Whistleblowers

Editorial
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March 17, 2020
MT Zao Galaxy. Photo: MarineTraffic.com

By Jessica T. Moore – On the open seas away from watchful eyes, illegal ocean polluters might never be held accountable for damaging the fragile marine environment without conscientious witnesses coming forward.  In a recent indictment against Singapore-based Unix Line PTE and others, crewmembers raised the alarm and provided the evidence of an illegal “magic pipe.”  The shipping company, owner, and officer surely would have gotten away with a crime without these individuals’ brave actions.

This isn’t the first time an international shipper has been exposed by whistleblowers, who play a major role enforcing the law, especially environmental regulations. In the Unix Line indictment, the government acknowledges that whistleblowers may receive up to 50% of any fine for bringing the information to light.  This nod to the whistleblowers, who might not have known about the possibility of compensation for coming forward, appropriately encourages revelations of hidden environmental crimes.  Others should follow suit.

Some information about the Unix Line case: Whistleblowers and an alert Coast Guard examiner exposed an illegal ocean-dumping scheme of unfiltered bilge water by Unix Line PTE. Unix Line PTE pleaded guilty to violating the Act to Prevent Pollution from Ships (APPS) after a conscientious crewmember slipped a note reading “magic pipe” and “damage marine environment” to the Coast Guard examiner inspecting the ship M/T Zao Galaxy. Another crewmember provided cell-phone video of four overboard discharges of oily waste, one of which was only three nautical miles from the Golden Gate Bridge. 

Under the APPS, which implements the laws agreed upon at the international MARPOL convention, U.S. flagged ships and international ships in U.S. waters must abide by anti-pollution laws (air and water). The APPS was passed in 1980 and has recovered millions in its long history.

While the APPS has had its successes, there are still bad actors at sea; specifically “magic pipe” cases similar to the Unix Line PTE indictment. In addition to deprioritizing pollution concerns, officers and crew may feel pressured by expediency, business pressures, and operational problems into bypassing the pollution controls.  In 2016, Princess Cruises paid a $40M fine for its magic pipe abuses, and in 2018 German company MST Mineralien Schiffahrt Spedition und Transport, which had been on probation for magic pipe discharges in the Great Lakes, pleaded guilty in Maine to similar oily bilge dumping.  In 2017, a federal jury in South Carolina convicted two Chief Engineers on TV Green Sky for pollution from a magic pipe, picture below:

The so-called “magic pipe” setup. Photo: DOJ

Oily bilge water must filter through a pollution device that automatically monitors and limits oil content before draining into the sea.  The Unix Line criminal indictment describes an onboard scheme to bypass pollution control through a “magic pipe” configuration involving “drum containers, flexible pipes, flanges, and the soot eductor.”

Under the APPS, all oil discharges must be documented in the Oil Record Book.  Not only did the Zao Galaxy defendants fail to document the four illegal dumping events, but First Assistant Engineer Gilbert Fajardo Dela Cruz allegedly ordered the discharges to occur only under cover of darkness and further ordered the cleaning and repainting of incriminating areas in anticipation of inspection.  Dela Cruz also allegedly pressured crew members to lie to the Coast Guard.

The whistleblowers’ revelations led to Unix Line’s guilty plea and admission that it knowingly failed to document the illegal discharge in the oil book.  Unix had also pleaded guilty to charges for similar conduct in 2003 in Washington state.  Charges for violation of the APPS and obstruction of justice remain pending against FGL Moon, the vessel’s owner, and Dela Cruz. 

Under the APPS, whistleblowers, even if not U.S. nationals, might receive up to one-half of any assessed fine, as explained by Constantine Cannon attorneys Max Voldman and Mary Inman in Maritime Executive.  APPS whistleblower awards recognize that numerous incidents of ocean pollution remain undetected unless witnesses come forward. 

The APPS is an excellent example for whistleblower programs that are successful, but its incentives are not as well known to the public.  Since 1993, the U.S. government has recovered $270 million in sanctions against ocean polluters, with 76% of those cases being brought forward by an APPS whistleblower.

In the Unix Line case, the government appears to encourage compensation to the whistleblowers under the APPS by acknowledging the reward provision in the indictment.  We hope the court will use its discretion generously.  With heightened awareness about climate change and environmental responsibility, the U.S. government (and international governments) should continue to promote the APPS whistleblower and other environmental laws for their incentives and the important impact they can make on the environment.  

Jessica T. Moore is a whistleblower attorney at Constantine Cannon.

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