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July 15, 2009

First charges brought under anti-invasive species law

Charles P. Posas, the Chief Officer of a Polembros-managed bulker, is the first individual to be charged under the anti-inasive species law, the Nonindigenous Aquatic Nuisance and Prevention Control Act.

Greek citizen Panagiotis Lekkas, the captain of the bulker, pleaded guilty today in federal court in New Orleans to four felony counts of violating anti-pollution laws, ship safety laws and obstructing a U.S. Coast Guard investigation, the Justice Department announced today. Posas pleaded guilty to two felony counts of lying to the Coast Guard and violating recordkeeping laws aimed at reducing the risk of marine invasive species.

Lekkas pleaded guilty to one count of violating the Act to Prevent Pollution from Ships, one count of obstruction of justice and two counts of violating the Ports and Waterways Safety Act. Posas, a Philippines citizen, pleaded guilty to one count of false statement and one count of violating the Nonindigenous Aquatic Nuisance and Prevention Control Act.

The vessel is owned by Liberia-based Mirage Navigation Corporation and is managed by Polembros Shipping Limited.

Sentencing for both individual defendants is set for Oct. 14, 2009.

The Coast Guard's investigation revealed that Lekkas, as the ship's master, was in charge of the vessel's operation and was responsible for both the deck department and the engineering department. Chief Officer Posas had direct authority over the deck department. As such, the defendants monitored the ship's ballast water system and directed the crew to take soundings of the ballast tanks to determine the volume of liquid in particular tanks.

In the summer of 2008, during a passage from the Suez Canal to China, Lekkas and Posas suspected that the aftpeak ballast tank was leaking, but the crew was unable to confirm a leak during an inspection. Later, while at a dock, offloading cargo in China, Lekkas and Posas observed an approximately 24-inch crack in the ship's rudder stem. It was evident, says the Justice Department, that water had passed through the crack since water was streaming out of it from inside of the ship. Lekkas reported the crack to company personnel, but failed to write a written report.

The Port and Waterways Safety Act (PWSA) requires that a vessel operator must report all hazardous conditions to the Coast Guard prior to arrival in a U.S. port. Under the PWSA regulations, a hazardous condition does not have to be a definitive danger or imminent threat, but need only be a condition that may adversely affect the safety of any vessel, bridge, structure or shore area or the environmental quality of any port, harbor or navigable waterway of the United States.

The Coast Guard has notification processes in place to utilize for vessels arriving to U.S. ports that have identified hazardous conditions onboard, such as excessive leaks and major equipment malfunctions. A vessel operator has several options available, including notifying the Coast Guard 96 hours prior to arrival of the hazardous condition or contacting the applicable ports' 24-hour Sector Command Center or Vessel Traffic Service.

Lekkas did not report the crack to the Coast Guard until he was confronted by Coast Guard inspectors in New Orleans.

In court documents, Lekkas admitted that he knew the crack could have adversely affected the safety and safe handling and operation of the vessel. No repairs were undertaken on the rudder stem crack until the Coast Guard ordered it repaired upon its discovery.

Through further investigation, the Coast Guard also found fuel was leaking, or "migrating" from the deep fuel tanks into the forepeak ballast tank. Directly astern of the forepeak tank were two fuel tanks, known as the deep fuel tanks.

In mid-September 2008, Lekkas and Posas learned that fuel oil may have been leaking into the forepeak ballast tank because it was reported that the sounding tapes were dirty with oil. After opening the tank's hatch, two inspections confirmed the presence of oil in the forepeak tank.

Following this discovery, Captain Lekkas ordered the crew to undertake a cleaning operation that initially involved skimming the surface of the water in order to remove the oil. To facilitate further cleaning, Lekkas ordered the level of the liquid in the tank lowered by pumping it directly overboard through the ballast pump. As the liquid level was lowered the crew could clean more of the tank, with the cleaning operation expanding to rags and a portable pump. The discharged ballast liquid was contaminated with oil.

The Act to Prevent Pollution from Ships and its regulations require that discharges from the machinery spaces of a cargo ship must be fully and accurately recorded in the oil record book. This obligation extends to emergency, accidental, or other exceptional discharges of oil and oily mixtures. Lekkas ordered the ballast discharges and counter-signed each page of the oil record book, certifying its accuracy. However, none of the contaminated ballast water discharges were recorded in the Oil Record Book.

When the vessel was about two days out from arriving in New Orleans, in late September 2008, it was clear that oil was continuing to leak into the forepeak tank. Prior to entering the Mississippi River and about a day out from New Orleans, Lekkas ordered two fitters to fabricate and install an obstruction device onto the forepeak tank's sounding tube so that during Coast Guard inspections, when taking a sounding, the results would only reveal water and not the presence of oil in the tank. The obstruction device consisted of a rubber hose with a metal stopper at the bottom end. Before being affixed to the sounding tube, the rubber hose was partially filled with water.

On Oct. 1, 2008, the Coast Guard boarded the M/V Theotokos near New Orleans in order to inspect the ship. During the inspection, the Coast Guard oversaw the sounding of the forepeak tank which indicated the presence of water in the tank but did not reveal the oil. Later, as part of the inspection, the Coast Guard had the crew open the hatch to the forepeak tank which revealed approximately one meter of oil in the tank. During the initial inspection, confined spaces safety regulations prevented the Coast Guard inspectors from retrieving the obstruction device. Although the inspection lasted another two days, Lekkas ordered the fitters to remove the rubber hose from the tank and restore the sounding tube to its original condition. The removal occurred before the Coast Guard had an opportunity to enter the tank.

In addition to the obstruction regarding the sounding pipe, Lekkas admitted in court documents that he knew about the fuel leak into the forepeak tank well before coming to New Orleans and that he chose not to report the leaks to the Coast Guard. Lekkas further admitted that the fuel migration may have adversely affected the safety of the M/V Theotokos or the environmental quality of U.S. ports and shores because the oil contamination in the ballast system meant that captain could not have utilized the ballast system, with its attendant direct overboard discharges, without polluting the marine environment.

Additionally, during the inspection, a Coast Guard inspector asked to see complete ballast records for the Theotokos. Posas responded by physically handing the inspector a copy of the Sept. 27, 2008, ballast report, which is a report of soundings and volumes of water in the ballast system. Posas prepared, signed and maintained these reports as part of his duties as chief officer. In court documents Posas admitted, that at the time he presented the ballast report to the Coast Guard inspector, he knew that the form was false.

Maintenance of accurate ballast water records is required under Ballast Water Management for Control of Nonindigenous Species regulations promulgated under the Nonindigenous Aquatic Nuisance Prevention and Control Act.

"Invasive marine species are a serious problem that can be transmitted in the ballast water of oceangoing vessels. Today's pleas should act as a warning to industry and crewmembers alike that we will investigate and prosecute those who ignore not only pollution laws but those laws designed to protect native species," said John C. Cruden, Acting Assistant Attorney General for the Justice Department's Environment and Natural Resources Division.

U.S. Attorney Jim Letten noted, "The message should be clear that this office, in conjunction with its partnership with the U.S. Coast Guard, the Department of Justice Environmental Crimes Section and all its law enforcement partners, will vigorously prosecute individuals who impede or obstruct the U.S. Coast Guard's mission and pollute our marine environment."

"This case clearly demonstrates the Coast Guard's commitment to work with our interagency partners to aggressively enforce all maritime anti-pollution and safety of life at sea laws. The breadth and magnitude of the investigation that underpinned the charges brought forth is a testament to the dedication of all persons who were involved in resolving this matter including the Coast Guard Investigative Service, the U.S. Department of Justice's Environmental Crime Section, and the U.S. Attorney for the Eastern District of Louisiana," said Rear Admiral Mary Landry, Eighth District Coast Guard commander.

"Coast Guard Investigative Service will continue to aggressively investigate those who profit by violating our environmental laws," said Damon Rodriguez, Special Agent in Charge, Gulf Region, Damon Rodriguez.

The case was investigated by the U.S. Coast Guard Investigative Service with assistance from inspectors from Sector New Orleans as well as legal from U.S. Coast Guard in New Orleans and at Headquarters in Washington, D.C. The case is being prosecuted by Christopher L. Hale of the Justice Department's Environmental Crimes Section along with Dorothy Taylor of the U.S. Attorney's Office in New Orleans.


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