ODME bypass criminal prosecutions: cause for concern or more of the same?

While speaking at the last SAFETY4SEA Conference, Mr. George A. Gaitas, Managing Partner, Gaitas, Kennedy & Chalos, P.C discussed about what traders in the United States may encounter with respect to the ODME bypass criminal prosecutions. Mr. Gaitas predicts that it is likely to be a significant change in the enforcement of MARPOL Annex I regulations in US and talked about related challenges.

My  prediction is that , there is likely to be a significant change in the enforcement of MARPOL Annex I regulations in the United States.  Product tankers ODME bypassing is a likely focus of enforcement.  The relevant regulations that tell us what vessels are subject to this sort of inspection are set out in part 33 CFR § 157.03 of the Code of Federal Regulations. These regulations cover oil tankers which are defined as vessels that are constructed or adapted primarily to carry crude oil or products in bulk as cargo. The focus of the regulations are oily mixtures which include a mixture in any form with an oil content.  Oily mixtures include slops from oil cargoes such as cargo tank washings, oily waste, and oily refuse.  Product means any liquid hydrocarbon mixture in any form, except crude oil, petrochemicals, and liquefied gases.   So, the kind of cargo these regulations cover are vessels that carry refined petroleum cargoes ranging from heavy residual oils to refined clean products.

Cargo tanks in oil tankers often need to be cleaned before a new cargo is loaded that is not compatible with the previous cargo. Oil tank washings (slops) are generated when oil cargo tanks are cleaned with water. Oil tankers are allowed to and regularly engage in the controlled discharge of oily mixtures overboard but by far, the overwhelming majority of criminal referral of MARPOL violations involves the unlawful discharge overboard of engine room space oily wastes.  Only a small proportion of the prosecutions involve the discharge of oily mixtures from tanker cargo spaces.  Hardly any of these have been ODME bypass cases.

Why there have there been so many more prosecutions for engine room oily mixture waste discharges as opposed to overboard discharges of wastes from cargo spaces of tankers, we cannot tell for sure.  One would think that the disposal overboard of tank washings is an activity of some regularity for vessels that load oil cargoes.  Indeed, there are estimates out there, admittedly old, (from 2003) that attribute some 3,000 incidents of unlawful discharges of oily mixtures from cargo spaces annually as a result of tank washing. I am not sure that this statistic holds true being from the days of clean ballast tank ships preceding stronger regulations for Port Reception Facilities. But tank washing and generating slops does happen out there, and the port state control authorities are intent on enforcing the regulations.

I would suggest that the reason why OWS prosecutions are much more prevalent than ODME bypass cases may be that the methods, techniques and routines of the unlawful discharge overboard of oily wastes has been an activity that violators / whistleblowers learn from each other and it is a lot simpler to put together such a scenario to report to the authorities than that of overboard discharging of oily mixtures originating from cargo spaces.

The ODME systems are far more complex and sophisticated to be tampered with.  A tanker’s ODME involves a system of fixed piping, flow meter, oily water analyzer unit, a computer unit, and in some instances a GPS.  Bypassing an oily water separator is a much simpler process that has been explained step by step, in many cases, and it is not very difficult to learn. An analogous bypassing of a ship’s ODME would be a much more complex undertaking, requiring several people coordinating endeavors.

Moreover, because there aren’t many whistleblowers reporting (or perhaps setting up) such cases, there does not appear to be so much experience and expertise among port state control personnel with this type of case.

ODME bypass enforcement in practice:

From what we have seen, a referral of a violation for criminal prosecution happens when the whistleblowers’ evidence reaches a critical-mass pointing to the likelihood of a conviction.  What makes for a critical mass: disgruntled seamen who want to go home; multiple additional violations involving overboard discharge from other sources on the same ship (like garbage, wastes other than oil); multiple witnesses; corroborating photograph evidence; an evident shipboard culture of sloppiness and disarray; outside help with promises of a large reward, etc. (union representatives, some Christian missionary groups, lawyers, etc.).

Not unlike OWS cases, the focus of Coast Guard port state control investigations of ODME bypasses is the Part II oil record book.  But whether the Part II ORB is an “honest” one is not something that can be established that easily.   The electronic record stored in the ODME is not something that can be retrieved and read in an ordinary port state control examination. In the cases we have seen the services of a qualified technician are necessary. The CG relies on outside technical experts from private industry to do this work.  People who know how to retrieve data electronically stored in a recorder have their own scheduled work and cannot be instantly present. Our experience shows that if the USCG port state control officials suspect something, they will prolong their attendance onboard and they will extend their inspection until they get the technical support they need.

ODME cases have two common main ingredients with OWS cases.  They spring forth from a combination of greed and anger. The greed is for the reward money.  The anger is fueled by onboard-discontent syndrome. Snitches use a variety of ways to document their claims.  Smart-phone photographs are a favorite.  They have the capacity to transmit the photographs.  These days, a new breed of lawyer has emerged.  They foster and promote such cases for a share of the reward as a fee.  Whether this is lawful or ethical is debatable.

Apart from snitches and stoolies, the Coast Guard relies on incompetence, sloppiness, and poor onboard practices. Some examples we have seen:  ignoring record keeping regulations like the Mater’s failing to sign several pages of the ORB II; making unauthorized modifications to the ODME system that are not class approved; a ship that suggests to the CG  substandard practices, e.g. dirty pump room, a dirty ship generally; obvious incompetence of officers in the operation of the ODME during the port state control inspection;  bad record- keeping practices in other ship documents.

As it turns out there are no technically sophisticated ODME bypass detection techniques that prosecutions have uncovered and rely on. Rather, such prosecutions are largely supported by evidence of such crude and unsophisticated practices as the direct overboard dumping of slops by means of portable pumps through manholes or direct from the cargo tanks.

Finally, a successful prosecution relies on lack of coordination between the office and vessel on operational matters that sometimes gives the impression that the office is directing the ship to commit prohibited acts.

The instructions that the office operations and other department provide should be clear and unequivocal and not lend themselves to being misinterpreted or misunderstood.  This area of clear written communications is a dynamic that quality and safety managers need to step up to.

ODME bypass cases put a company particularly at risk because they can be presented as cases in which the company directed the unlawful bypass for monetary gain, e.g.  to make a short cancelling date when there is not sufficient time for slops to settle during a short voyage, and no discharge allowed in transit through special areas; to avoid the cost of discharging large quantities of slops at proper reception facilities; to provide the additional space of the slop tanks to accommodate additional cargo. In turn such motives can be an aggravating factor leading to a harsh increase of fines. Office personnel have a key role to play in such matters.  Commercial pressures for having a ship reach a destination so as not to miss a tight cancelling date can have disastrous consequences if the risk taken is for the owners and managers of the ship to stand accused of bypassing the ODME.  The penalties for this are too harsh to even think about.

Above text is an edited article of Mr. George A. Gaitas presentation during the last SAFETY4SEA Conference in Athens.

You may view his video presentation herebelow:

The views expressed in this article are solely those of the authors and do not necessarily represent those of SAFETY4SEA and are for information sharing and discussion purposes only.

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George Gaitas, Managing Partner, GAITAS, KENNEDY & CHALOS, P.C

George Gaitas is the managing partner of the law firm GAITAS, KENNEDY & CHALOS, P.C. which is based in Houston, Texas and has maritime law as its sole area of practice, and more specifically, shipping law, in the broader commercial sense of this term.  Advising and representing shipowners in matters of marine regulatory compliance is also part of the firm’s work.  The client base of GAΪTAS, KENNEDY & CHALOS includes several Greek vessel owners.  George was born in Greece and pursued all of his university studies in the United States.  In the field of maritime law, he completed his studies at Tulane University School of Law from where he received his LL.M. in 1977.  Of his 40 years of practice of maritime law, he has spent more than one half of these working in Greece as counsel of shipping companies, and the rest in the U.S.A. in private practice in the field of his specialization.