New Development

On June 30, 2008, the U.S. Court of Appeals for the Fifth Circuit (the "Court") reversed a lower court's dismissal of criminal charges against Kun Yun Jho ("Jho") and Overseas Shipholding Group, Inc. ("OSG"). Jho had served as the Chief Engineer of the PACIFIC RUBY, an oil tanker owned by OSG. The lower court (the U.S. District Court for the Eastern District of Texas) had dismissed charges against Jho and OSG that alleged that Jho and OSG had knowingly failed to maintain an oil record book aboard the PACIFIC RUBY.

This case is significant for the international maritime community primarily because of the Court's decision that international law, specifically the United Nations Convention on the Law of the Sea ("UNCLOS") and the "law of the flag" doctrine, does not supersede the authority and jurisdiction of the United States to prosecute pollutionrelated incidents by foreign-flag vessels that occur outside of U.S. waters if the foreign-flag vessels subsequently call on U.S. ports and have maintained inaccurate oil record books.


Jho served as the Chief Engineer on board the PACIFIC RUBY, which is a foreign-flag (i.e., non-U.S.) tanker, that was apparently engaged in lightering operations from off-shore tankers to ports along the Gulf of Mexico. A whistleblower onboard the vessel alerted the Coast Guard to allegedly unlawful discharges from the vessel and also alleged that Jho had tampered with the oily water separator system. In a subsequent Coast Guard inspection, the Coast Guard claimed to have discovered evidence corroborating the whistleblower's allegations.

The U.S. Department of Justice brought charges against both Jho and OSG in which it charged ten counts, specifically one count of conspiracy, one count of making false statements to the Coast Guard, and eight counts of knowing failure to maintain an oil record book. These final eight counts related to eight separate port calls in the United States at which the PACIFIC RUBY allegedly entered U.S. ports with a knowingly inaccurate oil record book.

Jho and OSG argued that international law prevented the United States from prosecuting them for these alleged oil record book violations. They claimed that the U.S. had no authority to pursue a prosecution against "a foreign flag ship for alleged violations of U.S. Coast Guard regulations that occurred aboard ship and outside U.S. waters."1

The Act to Prevent Pollution from Ships, 33 U.S.C. § 1901, et seq. ("APPS"), which is the MARPOL implementing legislation in the United States, prohibits violations of MARPOL, APPS and regulations promulgated under APPS. The criminal charges against Jho and OSG stem from alleged knowing violations of the oil record book requirements under the APPS regulations. These requirements apply only to foreign-flag vessels "while in the navigable waters of the United States, or while at a port or terminal under the jurisdiction of the United States."2 APPS also states that any actions taken under APPS must be taken in accordance with international laws.3

The lower court had dismissed the oil record book charges against both Jho and OSG because it held that the U.S. government was prohibited from prosecuting the oil record book offenses in this matter as such a prosecution would violate principles of international law.


The Court of Appeals disagreed with the lower court on two substantial grounds. First, the Court concluded that the lower court "erred in construing the criminal conduct alleged against Jho and OSG to have occurred 'outside U.S. waters.'" Second, the Court concluded that neither the "law of the flag doctrine" nor UNCLOS limited the United States government from exercising jurisdiction to prosecute violations of U.S. criminal laws committed in its ports.

Failure to Maintain an Oil Record Book Within a U.S. Port, Terminal or Navigable Waters

The alleged tampering with the oil water separator system and any allegedly incorrect oil record book entries occurred while the vessel was in international waters. Jho and OSG argued, and the lower court agreed, that since the allegedly incorrect oil record book entries took place outside of U.S. ports or navigable waters, there had been no violation of U.S. law. The Court of Appeals disagreed with this interpretation though. The Court stated that it read the indictment to allege eight knowing failures to "maintain" an oil record book and that the location of the vessel at the time the oil record book entries were made was not a controlling factor.

The Court of Appeals stated that "ignoring the duty to maintain [the oil record book] puts the [APPS regulation at 33 C.F.R. § 151.25] at odds with MARPOL's and Congress' clear intent under the APPS to prevent pollution at sea according to MARPOL." It further stated that, "[i]f 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....[and] 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." The Court held that the requirement for an oil record book to be "maintained" imposed "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."

The opinion by the Court appears to support the government's view that a distinct criminal act is committed each time the vessel entered a port of the United States with an oil record book known to be inaccurate. However, this issue concerning the appropriate number of APPS violations was remanded to the District Court for further consideration.

International Law vs. Sovereign Jurisdiction

Jho and OSG also argued that § 1912 of APPS, which states that any action taken under APPS shall be taken in accordance with international law, prevents the U.S. government from prosecuting alleged APPS violations if the prosecution is "not in accordance with international law." The Court determined that the sources of international law, as applied by the lower court, did not limit the government's jurisdiction to prosecute violations of domestic law committed in a U.S. port.

Law of the Flag Doctrine

The first source of international law was the "law of the flag doctrine." The Court described this doctrine as providing that a merchant ship is part of the territory of the country whose flag she flies, and the actions aboard that ship are subject to the laws of the flag state.

The Court held, however, that the lower court had applied this doctrine too broadly in preventing prosecution of the offenses allegedly committed here. The Court noted a U.S. Supreme Court decision from 1923,4 which stated that 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."

Interestingly, the Court also stated that the limitations imposed by § 1902 of APPS and 33 C.F.R. § 151.09 tracked "the general principles of the law of the flag [doctrine]." Based on previous case law, the Court found that the oil record book offenses in this case were charged "in accordance with" the law of the flag doctrine and therefore permissible under APPS.


The second source of international law referenced by the District Court was UNCLOS. Although the United States is not a party to UNCLOS, the Court included UNCLOS as international law for the purposes of analysis under APPS to the extent that UNCLOS may represent customary international law.

The lower court had held that UNCLOS, specifically Articles 216 (Enforcement with Respect to Pollution by Dumping) and 230 (Monetary Penalties and the Observance of Recog - nized Rights of the Accused), limited the enforcement authority of a port state to prosecute violations of national laws by foreign-flagged vessels outside of the waters of the port state. The Court of Appeals, however, stated that these UNCLOS provisions did not represent the full picture of the international enforcement scheme under UNCLOS in relation to the protection and preservation of the environment.

The Court held that the UNCLOS limitations did not apply to the "in-port, oil record book offenses charged in this case." According to the Court, UNCLOS Art. 218 provides port states the authority to institute proceedings based on pollution violations that occurred entirely outside the terri - torial sea or exclusive economic zone of the port state. Essentially, the Court determined that nothing in UNCLOS limits the power of the United States, as the port state in this matter, to pursue "violations of marine pollution law that occur outside of its ports, and in some circumstances, outside of its coastal zones."

Conclusions and Recommendations

This decision by the U.S. Court of Appeals for the Fifth Circuit now provides judicial approval for U.S. government criminal prosecutions of owners, operators and crewmembers of foreign-flagged vessels for alleged MARPOL violations that occur on the high seas. In broader terms, the U.S. government now has the confirmed authority to prosecute MARPOL/APPS violations, at least in relation to falsified oil record books, no matter where the actual alleged pollution incident and false oil record book entry occurred.

Similar issues to those raised in this decision are also before the Court of Appeals for the Second Circuit in the matter of United States v. Ionia Management. The Court of Appeals in the Jho/OSG matter cited the District Court decision in the Ionia case where the court held that the essence of the violation was "not the pollution itself, or even the Oil Record Book violation occurring at that time, but the misrepresentation in port."5

Absent conflicting decisions in the pending Ionia appeal or other federal courts or a reversal or clari fication by the U.S. Supreme Court on these issues, reliance on the so-called "International Law" de fenses of the "law of the flag doctrine" or UNCLOS is unlikely to be a successful defense strategy in future criminal APPS prosecutions in the United States.


1.United States v. Kun Yun Jho, 465 F. Supp. 2d 618, 625 (citing 33 C.F.R. § 151.25).

2. 33 C.F.R. § 151.09(a)(5); See also, 33 U.S.C. § 1902(a).

3. 33 U.S.C. § 1912.

4. Cunard S.S. Co. v. Mellon, 262 U.S. 100, 123 (1923).

5. United States v. Ionia Management, S.A., 498 F. Supp. 2d 477, 487 (D. Conn. 2007) (quoting United States v. Royal Caribbean Cruises, Ltd., 11 F. Supp. 2d 1358, 1371 (S.D. Fla. 1998). See also, United States v. Petraia Maritime, Ltd., 483 F. Supp. 2d 34, 39 (D. Me. 2007).

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