Third Circuit Affirms Conviction of Chief Engineer For Violation of Act To Prevent Pollution From Ships. Reverses Banishment from U.S.
United States v. Vastardis, 2021 U.S. App. LEXIS 36034 *; __ F.4th __; 2021 WL 5781647 (3rd Cir., Dec. 7 2021).
The U.S. Third Circuit Court of Appeals has followed in the footsteps of the U.S. Second and Fifth Circuit Courts of Appeals and affirmed the conviction of the chief engineer, a citizen of Greece, of the vessel, EVRIDIKI, registered under the laws of Liberia for violation of the Act to Prevent Pollution From Ships for failing to maintain an accurate Oil Record Book, for falsifying records violating the Sarbanes-Oxley Act, 18 U.S.C. § 1519 and making false statements in violation of 18 U.S.C. § 1001.
As all previous courts which have addressed AAPS, though the illegal discharge occurred outside the jurisdiction of the U.S., the vessel must have accurate records when in the navigable waters of the U.S. Here, the offense is the failure to maintain accurate Oil Record Book while in a U.S. port. (Note: in United States v. Fafalios, 817 F.3d 155 [5th Cir. 2018], the Fifth Circuit dismissed charges against the chief engineer and held that only the master of the vessel can be charged with failure to maintain an accurate Oil Record Book.]). The Third Circuit also affirmed the convictions under Sarbanes-Oxley and for making false statements.
The panel, however, reversed the trial court’s banishment of the defendant from the U.S. as a condition of his probation as an abuse of discretion. Under the Immigration and Nationality Act, only the Attorney General of the United States has authority to admit, exclude, and remove non-citizens. (2021 U.S. App. LEXIS 36034 at *28) Banishment from the U.S. waters also would deprive the defendant, a seafarer, of his ability to earn a livelihood.
