That Law Doesn’t APPS-ly to Me!
That Law Doesn’t APPS-ly to Me!
By: John Yadamec
Edited By: Andrew Lifsey
U.S. v. Fafalios, No.15-301462016 U.S. App. LEXIS 4658; 2016 WL 1009126 (5th Cir. Mar. 14, 2016)
The Fifth Circuit reversed the conviction of Matthaios Fafalios, chief engineer of M/V TRIDENT NAVIGATOR, for failure to maintain an oil record book in accordance with 33 U.S.C. § 1908(a) and 33 C.F.R. § 151.25 because he did not fit the statutory definition of “master or other person having charge of a ship” under the Act to Prevent Pollution from Ships (“APPS”). APPS requires a vessel to document all discharges of oily bilge water in an “oil record book.” The vessel’s chief engineer is generally responsible for keeping the oil record book. In this case, Fafalios was found guilty at trial of failing to maintain the oil record book. The government did not charge him with violating APPS for the actual discharge because it occurred in international waters. He was also found guilty of obstruction of justice and witness tampering for his actions toward the whistleblower who notified the U.S. Coast Guard that the illegal discharge took place and was not recorded.Fafalios appealed only the count related to his failure to maintain the oil record book on grounds the government failed to prove that he was the master of the ship; therefore the plain language of the statute rendered it inapplicable to him as the chief engineer. The court was not persuaded by the government’s contention that Fafalios’s failure to record the discharge was the same as failure to maintain the oil record book. Additionally, the court pointed to the fact that other provisions of the statute contemplated crew members other than the master of the vessel, which indicated congressional intent that the provision under which he was convicted was to apply only to the master and not the chief engineer or any other officer.Aside from the statutory language, the court also compared the case to United States v. Jho, which held that simple failure to sign an oil record book while in international waters did not violate APPS. In this case, the court also reasoned that the failure to record and sign the log was an offense that occurred immediately when Fafalios did not sign the book after discharging the oily bilge water. Because the discharge and failure to record occurred in international waters, there was no continuing offense once the vessel entered the waters of the United States.The court also rejected several other arguments put forth by the government: (1) that the statutory requirement that the ship “maintain” the book extended to the chief engineer because he must sign for all discharges; (2) that the Coast Guard routinely enforces oil record book violations against chief engineers, and therefore is entitled to deference; and (3) imposing the duty to maintain the book on only the master of the ship would encourage chief engineers to falsify the records and not inform the master.
