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Administrative – No Review of Cargo Carrier Detention

By: S.C. Lawyers Weekly staff//July 24, 2013

Administrative – No Review of Cargo Carrier Detention

By: S.C. Lawyers Weekly staff//July 24, 2013

Angelex Ltd. v. U.S. (Lawyers Weekly No. 13-01-0737, 23 pp.) (Thacker, J.) No. 13-1610, July 22, 2013; USDC at Norfolk, Va. (Doumar, J.) 4th Cir.

Holding: A federal district court did not have jurisdiction to review the Coast Guard’s bond fixed for release of a detained ship under investigation for potential violations of certain ocean pollution prevention statutes; the 4th Circuit reverses the district court order altering the terms of the bond and remands for dismissal.

There are two petitioners in this appeal: the vessel, the Antonis G. Pappadakis, an ocean-going bulk cargo carrier registered in Malta; and Angelex Ltd., a company that purchased the vessel in 2007. While Coast Guard personnel were performing a routine Port State Control inspection of the vessel at the Norfolk Southern Terminal, a crew member passed a note to an inspector stating the vessel’s oily water separator had been bypassed and oily bilge water had been discharged overboard. Upon further inspection, the Coast Guard discovered the vessel’s oily water separator was inoperable, the vessel had likely been discharging bilge water overboard and the Oil Record Book (ORB) was incomplete or falsified, in contravention of law. The Coast Guard required a $2.5 million bond pending possible federal prosecution.

On petition for review, the district court said it had subject matter jurisdiction pursuant to the Administrative Procedure Act, and federal question jurisdiction, 28 U.S.C. § 1331; or, in the alternative, in rem admiralty jurisdiction under 28 U.S.C. § 1333. The court determined the government had acted unconstitutionally and outside its statutory authority by demanding excessive bond for clearance and by insisting that any security agreement include certain non-monetary conditions. The court ordered the bond reduced to $1.5 million and specified the government could initiate civil or criminal proceedings, but not both.

Because the action that occurred in this case is explicitly committed to the discretion of the Coast Guard pursuant to the Act to Prevent Pollution from Ships (APPS), we conclude this matter was unreviewable and thus, the district court lacked subject matter jurisdiction. The release of the vessel upon the filing of a bond or other surety is permissive, not mandatory, and is contingent only upon conditions satisfactory to the agency Secretary. In short, the Coast Guard’s stringent conformity to § 1908(e) simply does not give rise to a reviewable claim. The Coast Guard’s decisions regarding bond conditions with regard to the Pappadakis are unreviewable, and the district court did not possess subject matter jurisdiction under the APA.

Review of the Coast Guard decision is likewise unavailable under the district court’s in rem admiralty jurisdiction. Appellees unreasonably stretch the law to classify this matter as an in rem action. The withholding of the departure clearance is not tantamount to an attachment pursuant to a civil action, such as a maritime lien. The Coast Guard is properly withholding the departure clearance pursuant to its authority under § 1908(e), and not pursuant to any rule governing admiralty actions in rem.

Reversed and remanded.



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