WASHINGTON, D.C. | May 11, 2018—In an analysis of 100 recent Act to Prevent Pollution from Ships (APPS) prosecutions available on Public Access to Court Electronic Records (PACER), court records reveal that whistleblowers were responsible for over 75% of all successful cases in the years ranging from 1993-2017. Kohn, Kohn & Colapinto LLP (KKC) completed this review in order to provide a snapshot of how the whistleblower reward provision has been implemented in APPS cases.
According to a statistical analysis conducted by KKC, the United States obtained over $270 million in sanctions from 100 polluters and paid 206 whistleblowers a total of more than $33 million in rewards under APPS. Additionally, over $63 million was ordered by courts to be used for beneficial purposes in fighting ocean pollution. Organizations that received restitutions include the National Fish and Wildlife Foundation, National Marine Sanctuary Foundation, and Smithsonian Environmental Research Center.
“The ocean pollution cases prove that whistleblowing can work on an international stage. Our review of the 100 cases reveals that 70% of those cases came from international, non-U.S. whistleblowers from country such as the Philippines, Greece, and Venezuela. According to court documents, only 3% were from the U.S. The countries of origin of the remaining whistleblowers were not reviewed in the court records.”—Stephen M. Kohn, partner at Kohn, Kohn & Colapinto, an expert in whistleblower law.
Since its implementation, APPS has been an effective mechanism for prosecuting ocean pollution cases. The law applies to all U.S.-flagged and foreign-flagged vessels, whether they are at ports under U.S. jurisdiction or ever have operated in navigable waters of the U.S. APPS is especially powerful because of its whistleblower provision.
Under the APPS (33 U.S.C. § 1908): “A person who knowingly violates the MARPOL Protocol, Annex IV to the Antarctic Protocol, this chapter, or the regulations issued thereunder commits a class D felony. In the discretion of the Court, an amount equal to not more than ½ of such fine may be paid to the person giving information leading to conviction.”
Whistleblowers are essential to 1) alerting authorities of APPS violations and 2) successful prosecutions of APPS violations. The possibility of collecting up to half the fine is a strong incentive for whistleblowers to come forward with information, and has proved a boon in keeping U.S. waters free of oil and other pollution. Activities like illegal discharge of oil and falsification of record-keeping usually take place within a close-knit community in the open ocean, making it hard for the Coast Guard to detect crime. The persons best positioned to uncover violations are crew members. Testimony, videotapes, and other evidence provided to law enforcement by whistleblowers is essential to the detection and prosecution of ocean pollution crime.
“There is not one reported case in which a whistleblower was punished for giving inaccurate information or that the reward provision of APPS hindered the enforcement of the law. In fact, the opposite is true. The U.S. Department of Justice has recognized that the reward provision is key to prosecution.” — Stephen M. Kohn
In many of the court filings, the U.S. Department of Justice (DOJ) praises the usefulness of whistleblowers.
For instance, in U.S. v. Aksay Denizcilik Ve Ticaret A.S. (8:10-CR-00116), the DOJ informed the court: “Without the information provided by [the whistleblowers], this activity likely would not have been discovered.” Likewise, in U.S. v. Efploia Shipping Co., S.A. (1:11-CR-00652), DOJ stated “it is beyond dispute,” that the whistleblower “provided substantial information that led to the investigation and conviction of all defendants in this matter.” Quite simply, “the government was otherwise unaware of this crime and unlikely to learn about it…These photographs and documents were essential tools in the interviews of other witnesses and in securing guilty pleas from the defendants.”
This law has demonstrated effectiveness over a 24-year span, from the Clinton Administration through to the current Trump Administration.
For example, two ongoing cases under the Trump Administration include U.S. v. Jinhyun Youn (7:19-CR-00119) and U.S. v. Sea World Management & Trading, Inc. (2:18-CR-00099). In U.S. v. Jinhyun Youn, a crew member provided information to the inspectors about the illegal discharge of oil waste, leading to the conviction of a chief engineer of a Japanese shipping company.
In U.S. v. Sea World Management & Trading, Inc., two vessel operators were convicted for violating APPS. This could not have occurred without the assistance of six whistleblowers in the case, as confirmed in the DOJ’s motion for whistleblower rewards: “The information and testimony they provided as well as their continued availability here in the United States as witnesses helped to secure the guilty plea of the Defendant corporation, as well as one individual defendant…they provided the impetus for the criminal investigation, helped the Government to secure relevant evidence, and encouraged other witnesses to cooperate.”
One of the most important features of the APPS program is the use of APPS fines for beneficial purposes, including to marine conservation organizations.
Here is a full list of organizations that obtained restitution payments under APPS in the last 100 cases:
Alaskan Arctic Fund | Arctic Research Consortium of the U.S | Channel Islands National Park | Channel Islands Natural Resources Protection Fund | Columbia River Estuarine Coastal Fund | Dauphin Island Sea Lab Foundation | Florida Environmental Task Force Trust Fund | Florida Keys National Marine Sanctuary | Flower Garden and Stetson Banks National Marine Sanctuary | Gray’s Reef National Marine Sanctuary Foundation | International Arctic Research Center | Minnesota Environmental Fund | National Fish and Wildlife Foundation | National Fish and Wildlife Fund | National Marine Fisheries Service | National Marine Sanctuary Foundation | National Marine Sanctuary of American Samoa | National Park Foundation | North American Wetlands Conservation Act Fund | Northern Coastal California Restoration Fund | Oregon Governor’s Fund for the Environment | Puget Sound Marine Conservation Fund | Smithsonian Environmental Research Center | South Florida National Parks Trust | Tijuana River National Estuarine Research Reserve | Vessel Source Pollution Prevention and Compliance Fund
Update 6/29/18: In U.S. v Youn, Chief Engineer Youn was placed on a one-year probation and ordered to pay a $5,500 fine. In May 2018, it was announced that Nitta Kisen Kaisha Ltd. was ordered to pay a fine of $1M, placed on a three-year probation, and ordered to implement a comprehensive Environmental Compliance Plan with an audit component.