Court Denies Challenge to Act to Prevent Pollution from Ships as "Ultra Vires" Under West Virginia v. EPA
United States v. Empire Bulkers Ltd., 2022 U.S. Dist. LEXIS 151817 *, 2022 WL 3646069 (E.D. La., Aug. 24, 2022, Lemmon, J.)1
M/V JOANNA, registered under the flag of the Marshall Islands, was inspected by the U.S. Coast Guard on entry into the Port of New Orleans and was found to have deficiencies resulting in violations of the Act to Prevent Pollution from Ships.2 (See: U.S. v. Empire Bulkers Ltd., 2022 U.S. Dist. LEXIS 19479 *, 2022 WL 326643 [E.D. La. 2022]) The chief engineer was charged with several counts including aiding and abetting the failure to maintain an accurate Oil Record Book (ORB) and knowing violation of the Ports and Waterways Safety Act of 1972 ("PWSA").3 He also maintained AAPS was ultra vires exceeding the authorization granted to the regulators by Congress. The trial judge initially addressed this issue in her original opinion, (op.cit.) and determined that AAPS is not ultra vires.
Counsel for the chief engineer then filed a Motion For Reconsideration in light of the opinion of the U.S. Supreme Court in West Virginia v. EPA4 and that under its precedent there is no clear statutory authorization for the aiding and abetting charge and is thus ultra vires. The defendant’s major argument was that the Act and regulations punish actions outside of the U.S. and on the high seas. Judge Lemmon held as has other courts5 that the Act and regulations do not punish actions which take place outside the U.S. on the high seas; rather, the failure to maintain accurate records takes place within the U.S. As such the statute and regulations are not ultra vires.
The court also denied the challenge to the count for violation of the Ports and Waterways Safety Act of 1972. In particular the challenge was that this act and regulations define hazardous conditions to include injury or illness of a person aboard, or manning-shortage. As such the legislation is ultra vires. Judge Lemmon held that Congress in enacting the PWSA recognized that adequate manning is consistent with the goal of navigational safety to prevent collisions, allisions and other maritime casualties on the navigable waters of the U.S. Therefore, it is not ultra vires.
1Counsel: For Empire Bulkers Ltd., Joanna Maritime Limited, Defendants: Daphne P. McNutt, LEAD ATTORNEY, Barry & Piccione (New Orleans), New Orleans, LA; Briton P. Sparkman, PRO HAC VICE, Chalos & Co. (Houston), Houston, TX; George Michael Chalos, PRO HAC VICE, Chalos & Co, PC (New York), Oyster Bay, NY.
For Warlito Tan, Defendant: Caroline Gabriel, LEAD ATTORNEY, Most & Associates, New Orleans, LA; Edward S. MacColl, PRO HAC VICE, Thompson, MacColl & Bass, LLC. P.A., Portland, ME; William Brock Most, Law Office of William Most, New Orleans, LA.
For USA, Plaintiff: Kenneth E. Nelson, LEAD ATTORNEY, DOJ-Enrd, Washington, DC; Dall Kammer, U. S. Attorney's Office (New Orleans), New Orleans, LA; Richard Allen Udell, DOJ-Enrd, US DOJ Environment Division, Washington, DC.
2 33 U.S.C. § 1901 et seq.
3 46 U.S.C. §70001 et seq.
4 142 S. Ct. 2587, 213 L. Ed. 2d 896 (2022)
5 United States v. Jho, 534 F.3d 398, 404 (5th Cir. 2008); United States v. Vastardis, 19 F.4th 573, 583 (3rd Cir. 2021)
