U.S. Prosecutors Dealt Major Blows in Favor of Fair Treatment of Foreign Seafarers
It is well known throughout the maritime community that the U.S. Coast Guard (USCG) and Department of Justice (DOJ) have made it common practice to detain ships and demand removal of crew members from their homes on board foreign flagged vessels calling U.S. ports. Many times, these crew members are detained in the U.S. against their will for months on end while alleged Marpol violations are investigated. A series of landmark decisions in a recent matter in the U.S. District Court for the District of Maine have recently become "unsealed" and otherwise publicly available. These decisions undoubtedly will serve as significant precedent for the advancement of fair treatment of foreign seafarers caught up in investigations of suspected Marpol violations in the U.S.
On February 1, 2010, the USCG boarded a foreign flagged vessel in Eastport, Maine. Following the initial examination by the Coast Guard, a Filipino 'whistleblower' reportedly provided a 'tip' to the USCG that the vessel was illegally discharging oily water overboard. A secondary inspection was conducted on February 4, 2010, during which the USCG claimed to have "found" some (albeit unidentified) evidence of a potential violation. Consequently, the USCG detained ten (10) crew members, including the Master and the entire engine staff, in the District of Maine pending the government's investigation into possible criminal, civil, and/or administrative violations.
On or about March 2, 2010, two (2) members of the crew requested to be repatriated to the Ukraine. Thereafter, the government "turned up the heat" on the crew; obtained material witness arrest warrants; and confiscated the crew members' passports. The crew members fought back with the filing of an emergent application to quash the arrest warrants and further requested: (1) the return of their passports; (2) their depositions to be taken pursuant to F.R.Crim.P. 15; and (3) an judicial order permitting them to leave the U.S.
In response, the prosecutors opposed the application on the basis that the crew was not technically "detained" within the meaning of the statute and further argued, inter alia, that the warrants could not be discharged as a matter of law until at least the end of trial.
The Court rejected all of the government's arguments out-of-hand and found that the foreign crew members were, indeed, being wrongly detained against their will and that U.S. law authorized (and actually required) the prompt taking of pre-indictment Rule 15 depositions and release of the crew. The Court granted the crew's application, ordered their depositions to be taken, and released the crew from what is customarily a long and tortured detention process.
On a separate but parallel track in the same matter, the government provided "official notice" that the presence of one (1) of the detained crew members "was no longer required by the United States." It was assumed that the witness possessed substantive exculpatory evidence, which the prosecutors did not believe would be helpful (and most likely harmful) to the successful prosecution of the case. Despite a request by vessel interests to depose and preserve the (assumedly) exculpatory testimony, the prosecution team refused to agree. Consequently, defense counsel prepared and submitted a petition seeking a court order directing the government to participate in a deposition to perpetuate testimony under Federal Rule of Civil Procedure 27, for use in future proceedings. As expected, the testimony was, indeed, exculpatory and otherwise helpful to the successful defense of the criminal allegations. After receiving full briefing on the issues, the Court completely rejected the government's opposition, granted the petition, and ordered the deposition to proceed without delay.
Subsequently, the prosecution team voluntarily dismissed the criminal complaint in its entirety citing "the interest of justice" as the basis for its decision.
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