Hiding Behind the Flag: Jurisdictional Impediments Imposed by the Law of the Flag on the Enforcement of Violations of Annex I of MARPOL 73/78 Pursuant to the Act to Prevent Pollution from Ships
This Note explains why and how, although the International Convention for the Prevention of Pollution from Ships and the Protocol of 1978 (collectively, “MARPOL 73/78”), and the US Act for the Prevention of Pollution from Ships (“APPS”), create a comprehensive system for prohibiting deliberate releases of oil into marine environments, the law of the flag thwarts the ability of the US government to combat effectively intentional oil pollution from seafaring vessels. Part II describes the quantity of oil jettisoned by ships into the world’s oceans and seas and the detrimental effects oil causes to marine environments. Part III sets forth the parameters of MARPOL 73/78’s prohibition against intentional oil releases as well as its requirements for the installation and use of oil pollution control equipment on covered vessels. Part IV explores the incentives for ship owners, operators, masters, engineers, and crewmembers to illegally jettison oil and common methods for doing so. Part V turns to the jurisdictional limitations that the law of the flag imposes on MARPOL 73/78’s enforcement. Part VI examines various US criminal statutes to which US prosecutors have turned in order to prosecute efforts by ship owners, operators, masters, engineers, and crewmembers to conceal their MARPOL 73/78 violations. Part VII describes features in the US Sentencing Guidelines that limit the criminal penalties that US courts can impose for the commission of cover-up crimes related to the illegal discharge of oil. Part VIII describes four recent prosecutions relating to the illegal jettisoning of oil to illustrate the nature and extent of ongoing MARPOL 73/78 violations. Part VIII then offers several recommendations for promoting MARPOL 73/78 compliance and deterring non-compliance.
Daisy de Wolff, Hiding Behind the Flag: Jurisdictional Impediments Imposed by the Law of the Flag on the Enforcement of Violations of Annex I of MARPOL 73/78 Pursuant to the Act to Prevent Pollution from Ships, 42 Fordham Int'l L.J. 1475 (2019).
Available at: https://ir.lawnet.fordham.edu/ilj/vol42/iss5/6