US Prosecution of Suspected Marpol Violations - Whistleblowers: Are They Really Reliable?
It is well known throughout the maritime industry that the United States Coast Guard ("USCG") has aggressively pursued a program of boarding and inspecting foreign flag-state vessels calling in U.S. ports for possible violations of MARPOL and/or the Act for the Prevention of Pollution from Ships ("APPS") (i.e. – the U.S. adaptation of MARPOL). This initiative has elicited heavy fines from owners and operators who have either pled guilty or who have been convicted of MARPOL violations. Many, if not most, of the investigations and prosecutions are initiated as a result of information provided by whistleblowers, who can be awarded up to one-half (1/2) of any fines assessed against the owners/operators.
For years, whistleblowers have been said to be motivated to use the U.S. whistleblower program for self-serving purposes of revenge and exacting large monetary rewards. In a system that encourages fabrication in cooperation with government prosecutors, the question arises: how reliable are the whistleblowers providing this information? A recent case from Corpus Christi, Texas is particularly illustrative of why the credibility of a whistleblower's tip must be carefully scrutinized.
On May 4, 2010, a foreign-flagged oil tanker arrived in the Port of Corpus Christi, TX, and underwent inspection by the USCG. Following the initial examination by the Coast Guard, a crewmember reportedly provided the USCG with information that the vessel was discharging oily water overboard in violation of MARPOL. A secondary inspection was conducted the following day, during which the USCG claimed to have "found" evidence of various MARPOL violations. The USCG issued a Port State Control Report and the vessel was detained pending further investigation. Subsequently, for reasons which initially appeared unclear, the USCG dropped all criminal investigative activity and ceased pursuing any charges against the vessel, its crew, and the vessel owners.
On the same day the vessel was permitted to sail, Federal prosecutors filed a criminal complaint against the whistleblower, Robert Antolo Pabillar, in the U.S. District Court for the Southern District of Texas. Specifically, the prosecutors charged the whistleblower with a seedy crime involving "kiddie porn," and specifically alleged a violation of 18 U.S.C. § 2260. The Complaint was accompanied by the Affidavit of a U.S. Immigration & Customs Enforcement Special Agent, which alleged, in part, that Pabillar had "knowingly transported a visual depiction of a minor engaging in sexually explicit conduct, . . . ". Upon further investigation by a forensic examiner and a "Sexual Maturation Assessment" expert, it was concluded that the video had been downloaded in the Philippines two (2) years earlier and that "the girl contained in this image is between 0-15 years of age."
Interestingly, the child pornography was reportedly discovered on the whistleblower's cellular phone after he advised Special Agents from the Coast Guard Investigative Service (CGIS) that he had images of oil "slop" around the vessel's incinerator on his cell phone.
To read a copy of the Criminal Complaint and its accompanying Affidavit, click here.
For more information on the United States government's prosecution of suspected MARPOL violations or US law generally, please do not hesitate to contact us at firstname.lastname@example.org.