1. Investigating Shipping Pollution Violations
Pacific Module 16: Other Enforcement Options

2. Aim Assistance in collection of evidence Other enforcement actions
● Identify other options where domestic enforcement is not viable
Assistance in collection of evidence
Other enforcement actions

3. MARPOL Article 6 MARPOL text Article 6.1 Article 6.3
Parties cooperate in detection of violations and enforcement of the provisions of MARPOL ..detection and monitoring …reporting and accumulation of evidence
Article 6.3
Any Party shall furnish to an Administration evidence of a violation (6.3)

4. MARPOL Article 6 MARPOL text Article 6.4 Article 6.5
The Administration informed shall investigate the matter and, if satisfied there is sufficient evidence available, cause legal proceedings taken in accordance with its laws as soon as possible
Article 6.5
A Party may request an Administration to undertake an investigation on its behalf and the report shall be sent to the requesting Party so that appropriate action can be undertaken

5. Practical Use of MARPOL Article 6
Evidence collection
Cooperation with other Parties to MARPOL
Notify other jurisdiction if violation has been detected
Request another Administration to collect evidence on your behalf (be specific - take samples, copy documentation (or other) from vessel for the purpose of an investigation of a violation committed in another jurisdiction (ie consider using this option if vessel has left your jurisdiction or has polluted while transiting your EEZ)
Need to have secure arrangement for the integrity and transport of the evidence
Requesting Party retains evidence and any legal proceedings are undertaken within jurisdiction of that Party

6. Practical use of MARPOL Article 6
Investigation assistance
Request the Administration in the next port of call to undertake an investigation on your country’s behalf
Provide specific instructions of what is required
Possibly joint investigation with officers from the polluted jurisdiction joining those at the next port of call
Check domestic laws in order to verify admissibility of any evidence collected (eg. authorised officers used under the laws of that jurisdiction)
Requesting Party retains evidence and legal proceedings undertaken within jurisdiction of that Party

7. Referral to Flag State
Flag State Administration is requested to investigate
All evidence sent to the Flag State
provide justification of clear grounds that a violation has occurred (useful to prepare a report similar to a Brief of Evidence)
Flag State obligated to investigate the matter
if sufficient evidence take appropriate action under its laws as soon as possible
Inform the requesting Party of the outcome of the investigation
MARPOL Party reports to IMO GISIS and lists referrals to Flag State (includes whether there has been a response)

8. Referral to Flag State: Risks
Flag State Administration may not be responsive to the investigative referral
Flag State laws may have lower sanctions (i.e. does not provide adequate deterrence)
Requesting Party does not have control of the investigation

9. Port State Control Inspections
Report pollution incident to PSC MOU
Coastal or Port State may undertake a PSC Inspection
Inspection effective only if deficiencies are detected that relate to the pollution incident and detention action is warranted
Detention may have a more significant financial impact than a fine imposed through legal proceedings

10. Information or Evidence from a Foreign Country
Where an investigation requires information or evidence from a foreign country, it may be obtained:
Formally - Mutual Legal Assistance treaties (MLAT via your country’s Attorney General Department, Department of Justice, or other)
Informally – Police to police or investigative agency to investigative agency

11. Mutual Assistance from a Foreign Country
Mutual Assistance is the process used to provide and obtain formal government to government assistance in order to facilitate criminal investigations and prosecutions
Country may require a formal mutual assistance request. Examples of use:
Coercive powers such as a search warrant (obtain evidence such as financial records)
Taking evidence from a witness for a foreign court proceedings (voluntary or cautioned statements)

12. Letters Rogatory
Letters rogatory are a customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement
Execution of letters rogatory may take a year or more worldwide
transmitted via diplomatic channels
requests from courts in one country to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, could constitute a violation of that country's sovereignty
may be used in countries where multi-lateral or bilateral treaties on judicial assistance are not in force to effect service of process or to obtain evidence if permitted by the laws of the foreign country.

13. INTERPOL Assistance
INTERPOL may be available to facilitate a request for referral through National Central Bureau (Police) network
INTERPOL may be able to assist in collection of evidence, taking of statements, provision of information, locating persons etc
INTERPOL Notices

14. INTERPOL Sharing of Information and Intelligence
Environmental Crimes Committee
Project Clean Seas
Worst Offenders database
Ship Pollution Prosecutions database
Sharing information may assist another jurisdiction in an active investigation

15. Questions?