Tuesday, November 6, 2012

International Criminal Maritime Law

International criminal law is a very sexy sounding legal practice.  Most people imagine prosecuting war criminals or overthrown dictators, but a lot of international criminal issues arise at sea.  No, it’s not piracy either.  Many of the most complex international criminal issues come up in the prosecution of those who violate shipping laws.

It all started, like most international initiatives, with the United Nations.  A specialized agency of the United Nations’, known as the Inter-Governmental Maritime Consultative Organization (later renamed the International Maritime Organization [IMO]), primary purpose is to develop and maintain a comprehensive regulatory framework for shipping.  Its mission today includes safety, environmental concerns, legal matters, technical co-operation, maritime security and the efficiency of shipping.  The IMO has worked to pass international conventions such as Safety Of Life At Sea (SOLAS)[1], International Ship and Port Facility Safety Code (ISPS) and the Convention on the Prevention of Maritime Pollution (MARPOL 73/78).[2] 

The IMO itself have no enforcement or enactment authority and instead relies on individual signatories to the conventions to enact the conventions through domestic law and enforce the law with domestic law enforcement authority.  As with similar uniform conventions (See the Uniform Commercial Code), various signatories have adopted different interpretations and sometimes even different enacting language.  For the most part, this system works well and few problems arise, but confusion can arise at the fringes of the law.  As with the other similar uniform conventions, domestic courts look to the comments and intentions[3]of the IMO but even then, the answer is not always clear.

For a prime example we can look to a case recently prosecuted in the United States District Court for the District of Columbia.  In August of 2012, the fishing company Sanford, LTD, a New Zealand company that operated the F/V San Nikunau around the U.S. territory of American Samoa, and the F/V San Nikunau’s Chief Engineer, James Pogue, were found guilty of MARPOL violations[4].  A number of issues arose in the pre-trial stages of the case when the defendants challenged the United States’ authority to prosecute a foreign flag vessel for violations that occurred on the high seas and when the defendants contended that the United States’ interpretations of MARPOL differed from their home nation of New Zealand’s interpretations of MARPOL.

Judge Beryl A. Howell determined that given the purpose of MARPOL and the IMO, to create international standards for shipping requirements, that the United States, and presumably, every other MARPOL signatory could enforce MARPOL on the high seas[5].  Judge Howell also determined that the defendants’ contentions that New Zealand and the United States’ interpretations differed, was overblown, and that there was no significant difference on the issue in particular.  Judge Howell did not address what would happen if there actually was a conflict between the two country’s MARPOL interpretations.  The Judge’s ruling did not prevent the defendants from putting on a good faith defense contenting that they reasonably believed there was in fact a difference of law.  Between the United States and the defendants’ three expert witnesses were called to testify on a difference or lack thereof.

The issues which arose in this case have caused the United States Coast Guard, Maritime New Zealand and the IMO to work on solutions to resolve these perceived disparities.  Though all governmental organizations agree that no disparity exists it is likely that within the next few years we will see a new international action to address the procedure for handling disparities.


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