No. __-_____
In the Supreme Court of the United States
ANGELEX, LTD., Petitioner, v.
UNITED STATES OF AMERICA
Respondent.
On Petition for Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit
PETITION FOR WRIT OF CERTIORARI ______
*GEORGE M. CHALOS *Counsel of Record BRITON P. SPARKMAN Chalos & Co., P.C. 55 Hamilton Avenue Oyster Bay, NY,11771
Tel: (516) 714-4300 Fax: (516) 750-9051 Email: [email protected]
Counsel for Petitioner ______i
QUESTIONS PRESENTED
The Act to Prevent Pollution from Ships, 33 U.S.C. § 1901, et seq. (“APPS”), was enacted by Congress to implement the provisions of the MARPOL treaty and annexes thereto to which the United States of America is a party. As part of APPS, Congress created an ‘after-the-fact’ statutory remedy codified at 33 U.S.C. § 1904(h), which provides that “a ship unreasonable detained or delayed by the Secretary acting under the authority of this chapter is entitled to compensation for any loss or damage suffered thereby.”
The M/V ANTONIS G. PAPPADAKIS, a bulk carrier and sole income producing asset belonging to Petitioner, Angelex Ltd., was unreasonably delayed by the United States Coast Guard and/or Customs and Border Protection Agency for one hundred and sixty-five (165) days in the port of Norfolk, Virginia. The questions presented which warrant further review because of their critical legal importance are:
1. Whether the Court below erred by prematurely dismissing Angelex’s case prior to trial and full presentation of Angelex’s evidence; and
2. Whether the Court below erred by failing to apply the correct “reasonableness” standard in its consideration of what constitutes an “unreasonable delay of the vessel” as set forth in 33 U.S.C. § 1904(h). ii
PARTIES TO THE PROCEEDINGS BELOW
In addition to petitioner Angelex Ltd., plaintiff- appellants below, the respondent is the United States of America, defendant-appellee below.
CORPORATE DISCLOSURE STATEMENT
Angelex Ltd. is a privately held company. Angelex Ltd.’s parent company is Voltela Limited. No publicly held company has 10% or greater ownership in Angelex Ltd.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED...... i
PARTIES TO THE PROCEEDING...... ii
CORPORATE DISCLOSURE STATEMENT...... ii
TABLE OF AUTHORITIES...... vi
PETITION FOR WRIT OF CERTIORARI...... 1
CITATION OF DECISIONS BELOW...... 1
STATEMENT OF JURISDICTION...... 1
STATUTORY PROVISIONS...... 1
INTRODUCTION...... 2
STATEMENT OF THE CASE...... 5
A. Factual and Procedural Background...... 5
B. The District Court of D.C. Proceedings...... 9
C. The Court of Appeals for the D.C. Circuit Decision...... 12
D. The Statutory Framework of MARPOL and APPS...... 13
iv
TABLE OF CONTENTS-Continued
E. The Statutory Purpose of 33 U.S.C. § 1908(e) and 33 U.S.C. § 1904(h)...... 16
REASONS FOR GRANTING THE WRIT...... 19
I. CERTIORARI SHOULD BE GRANTED TO RESONLVE A CONFLICT BETWEEN THE D.C. CIRCUIT COURT OF APPEALS AND THE FOURTH CIRCUIT COURT OF APPEALS...... 19
II. CERTIORARI SHOULD BE GRANTED BECAUSE THE LOWER COURT’S DEFINITION AND APPLICATION OF WHAT CONSTITUTES “UNREASONABLE” DELAY WILL HAVE A SIGNIFICANT IMPACT ON MARITIME TRANSPORTATION...... 26
A. The Inability to Post a Bond...... 27
B. The Failure to Consider the Vessel’s Mortgage or Priority of Liens...... 30
C. The Lower Court’s decisions improperly excuse the government’s unreasonable delay of the Vessel...... 32
CONCLUSION...... 35
v
APPENDIX
Appendix A Opinion in the United States Court of Appeals for the District of Columbia Circuit (November 2, 2018) ...... App. 1
Appendix B Memorandum Opinion in the United States District Court for the District of Columbia (September 28, 2017) ...... App. 21
Appendix C Order in the United States District Court for the District of Columbia (September 28, 2017) ...... App. 70
Appendix D 33 U.S.C. § 1902 ...... App. 72 33 U.S.C. § 1904 ...... App. 85 33 U.S.C. § 1908 ...... App. 88 46 U.S.C. § 31301 ...... App. 91
vi
TABLE OF AUTHORITIES
Page Cases
Angelex Ltd. v. United States, 2013 AMC 1217 (E.D. Va. 2013) …..6-8, 19, 20, 23
Angelex Ltd. v. United States, 723 F.3d 500 (4th Cir. 2013) …………...8,12, 18,21
Angelex v. United States, 123 F. Supp. 3d 66 (D.D.C. Aug. 24, 2015) …………………………..5, 9
Angelex v. United States, 272 F. Supp. 3d 64 (D.D.C. Sept. 28, 2017) ……………………………..1
Angelex v. United States, 907 F. 3d 612 (D.C. Cir. 2018) ……………………..1
Gilchrist v. Collector of Charleston, 10 F. Cas. 355 (C.C.D.S.C. 1808) …………….34-35
In re: MS “ANGELN” GMBH & CO. KG v. Bernuth Lines Ltd., 2013 U.S. App. LEXIS 2378 (2d Cir. 2013) ...... 2
Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015) …………………………22-24
vii
TABLE OF AUTHORITIES-Continued
Page Cases
The Mary A (United States of America v. Martinson), 52 F.2d 982 (E.D.N.Y. 1931) ……………..………32
Medellín v. Texas, 128 S. Ct 1346, 170 L. Ed. 2d 190 (2008) ………………………….14
Midwest Video Corp. v. FCC, 571 F.2d 1025 (8th Cir. 1978) ……………………25
Ramirez v. United States, 767 F. Supp. 1563, 1991 AMC 2462 (M.D. Fla. 1991) ………….…....32
Standard Oil Co. of Indiana v. United States 164 F. 376 (7th Cir. 1908) ………………………...20
Sumner v. Philadelphia, 23 F. Cas. 392 (C.C.E.D. Pa. 1873) ……………...34
United States v. Abrogar, 459 F.3d 430 (3d Cir. 2006) …………………..14, 15
United States v. Ionia Mgmt. S.A., 555 F.3d 303 (2d Cir. 2009)……………………….14
viii
TABLE OF AUTHORITIES-Continued
Page Cases
United States v. One 254 Ft. FREIGHTER, M/V ANDORIA, 570 F. Supp. 413 (E.D. La. 1983) ………………..31
Watervale Marine Co., Ltd. v. United States, 807 F.3d 325 (D.C. Cir. 2015) ...... 21
Watt v. Alaska, 451 U.S. 259, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981) ……...…22
Yenkichi Ito v. United States, 64 F.2d 73 (9th Cir. 1933), cert. denied, 289 U.S. 762, 53 S.Ct. 796, 77 L.ed.1505 (1933) ……………….15
Statutes
28 U.S.C. §1254(1)……………………………………….1
33 U.S.C. §1901...... i, 1, 15
33 U.S.C. §1902(a)………………………………….14-15
33 U.S.C. § 1903(c)(1)...... 15
33 U.S.C. §1904(h)………………………………..passim
33 U.S.C. §1908(e)………………2, 3, 11, 12, 18, 27, 34
46 U.S.C. §31301……………………………………1, 30 ix
TABLE OF AUTHORITIES-Continued
Page
Rules
FED R. CIV. P. 12(b)(6)…………………………………...9
Miscellaneous
House Report No. 96-1224 reprinted in 1980 U.S.C.C.A.N. 4849………………………………………11
International Convention for the Prevention of Pollution from Ships, MARPOL 73/78……...... 13-15
Merriam-Webster.com, available at https://www.merriam- webster.com/dictionary/unreasonable (last visited January 30, 2019)……………………….24
U.S. Coast Guard, The Coast Guard Investigative Service, available at https://www.dco.uscg.mil/our- organization/Intelligence-CG-2/...... 10 PETITION FOR A WRIT OF CERTIORARI
Angelex Ltd. respectfully petitions this Court for a Writ of Certiorari to review the judgment of the U.S. Court of Appeals for the D.C. Circuit.
CITATION OF DECISIONS BELOW
The decision of the Court of Appeals for the D.C. Circuit (Pet. App. 1-20) is reported at 907 F.3d 612. The decision of the District Court for the District of D.C. (Pet. App. 21-69) is reported at 272 F. Supp. 3d 64.
STATEMENT OF JURISDICTION
The judgment of the district court granting the defendant’s motion for summary judgment was entered on September 28, 2017. (Pet. App. 21-69) and was timely appealed. The judgment of the court of appeals was entered on November 2, 2018. (Pet. App. 1-20). The time to file a petition for certiorari is up to and including January 31, 2019. The jurisdiction of this Court rests on 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS
Relevant portions of the Act to Prevent Pollution from Ships 33 U.S.C. § 1901, et seq., are reproduced at Pet. App. 72-90. Relevant portions of the Commercial Instruments and Maritime Lien Act, 46 U.S.C. § 31301, et seq., are reproduced at Pet. App. 91-93.
2
INTRODUCTION
Angelex Ltd.’s (“Angelex”) underlying claim is statutory in nature; arises pursuant to the Act to Prevent Pollution from Ships (“APPS”), 33 U.S.C. § 1904(h), which calls for the review of government conduct using the traditional tort standard of “reasonableness”; and seeks damages from the United States of America (“government”), due to the excessive and unreasonable delay of its sole income producing asset, the M/V ANTONIS G. PAPPADAKIS (the “Vessel”) by an agency of the government, the United States Coast Guard (“Coast Guard”) and/or Customs and Border Protection (“CBP”).
The Vessel was unreasonably delayed at Norfolk as a result of the Coast Guard and CBP intentional withholding of the Vessel’s departure clearance for one hundred and sixty-five (165) days. The delay was caused by numerous unjustified and unreasonable actions and inactions by government agents; any one of which being sufficient to make the delay and detention of the vessel unreasonable under the statute. JA278 – 284.1 Although there were numerous unreasonable demands imposed for the reinstatement of the Vessel’s departure clearance, the critical unreasonable demands for this petition, include the following:
1 References to the Joint Appendix submitted to the D.C. Circuit Court of Appeals are referred to as “JA.” 3
1. The imposition of nonnegotiable requirements unrelated to financial security to ensure payment of any possible fine or penalty, contrary to the requirements of 33 U.S.C. § 1908(e). JA283-284.
2. Requiring a foreign third-party -- with no equitable or ownership interest in the vessel, Kassian Maritime Navigation Agency Ltd. (“Kassian”)2 to jointly and severally post the required bond (and consent to various onerous non-financial terms and waiver of jurisdictional defenses). JA279.
3. Requiring the posting of a bond in the amount of $2.5 million dollars which exceeded the documented financial ability of Angelex, (and/or Kassian), to post such a bond. JA 280.
4. Requiring the posting of a bond in an amount 2.5 times greater than required in an identical vessel matter arising in the same district just weeks before and in excess of the maximum fine which could have been imposed against the Vessel in rem. JA283.
5. The Coast Guard insistence that unless a USD 2,500,000 bond was jointly and severally posted by Angelex and non-party Kassian, the Vessel was to remain in the district as “security” for a potential
2 Kassian is a foreign company managing a foreign-flagged ship with no connection to the United States and no ownership interest in the Vessel. There is no personal jurisdiction over a foreign vessel manager of a foreign ship directed to the United States by a charterer. See In re: MS “ANGELN” GMBH & CO. KG v. Bernuth Lines Ltd., 2013 U.S. App. LEXIS 2378, *4-5 (2d Cir. 2013). 4 fine or penalty without any consideration of the preferred ship mortgage recorded on the Vessel and without any analysis of the priority of liens if the Vessel were to be liquidated and sold at judicial auction. JA282-283.
When the totality of the circumstances are considered, there is no reasonable explanation for the government’s conduct and delay of the M/V ANTONIS G. PAPPADAKIS. Critically, the government requested and was provided financial records, bank statements, tax returns, and other clear statements demonstrating the contemporaneous value of the Vessel; the first preferred foreign ship mortgage; Angelex’s limited free cash on hand; and the dollar-for-dollar requirement to collateralize any bond to be provided. During depositions, every government witness admitted that no review of any of the financial documents was ever conducted. In addition, the government never considered applicable U.S. law governing maritime liens and the fact that a civil penalty or criminal fine would be subordinated to the first foreign preferred ship mortgage encumbrance.
The district court erred in granting summary judgment in favor of the government by improperly weighing competing material facts in dispute (for which Angelex would offer additional evidence and testimony at trial) and by assessing “unreasonable delay” under a standard of law which effectively results in “no review” of the Coast Guard’s action. Pet. App. 21-69. In addition, the district court improperly limited its review of the government’s 5 actions to only considering whether the conditions imposed reasonably supported the Coast Guard’s mission. The court of appeals erred in affirming this improper standard of review which is at odds with the plain language of 33 U.S.C. § 1904(h), i.e. did the Coast Guard’s contemporaneous actions lead to the unreasonable delay of a Vessel.
The district court decision erroneously excused the Coast Guard’s conduct by finding that there was no evidence in the record to support the claim that the Coast Guard’s demands were unreasonable, despite the fact that the Coast Guard readily admitted, inter alia, that no analysis of the documents and information it requested and was provided. The D.C. Circuit Court of Appeals decision impermissibly shifts the burden of demonstrating unreasonable delay to an impossible threshold which renders the statutory remedy meaningless. Pet. App. 14-19. For these reasons, more fully explained below, the petition for writ of certiorari should be granted.
STATEMENT OF THE CASE
A. Factual and Procedural Background
The Vessel’s delay began on April 19, 2013 when the government revoked the Vessel’s departure clearance pending the “filing of a bond or other surety satisfactory to the Secretary.” Angelex Ltd. v. United States of America, 123 F. Supp. 3d 66, 68 (D.D.C. 2015). Despite efforts by Angelex to provide 6
“reasonable” surety, the Coast Guard unreasonably maintained an excessive and unobtainable demand for $2,500,000 surety bond as well as a panoply of other unconscionable and insatiable non-monetary terms well-beyond Angelex’s means and ability to provide. As a result of the government’s unreasonable demands and continuous failure to assess/reassess the propriety of those demands, Angelex commenced emergency civil proceedings in the Eastern District of Virginia seeking injunctive relief from the district court. On April 24, 2013, Angelex filed an emergency petition and motion to set bond. See Angelex Ltd. v. United States of America, et al., 13-cv-237-RGD (E.D. Va. 2013); JA57-68, ¶¶ 13- 55. Following briefing and a hearing on May 6, 2013, District Judge Doumar of the Eastern District of Virginia, set conditions for a bond to allow the fully loaded bulk carrier to sail from Norfolk to continue her journey and trade.3
3 The Vessel was owned at all times by Angelex Ltd. JA159, ¶92. The Vessel was at the Port of Norfolk in order to load a cargo of coal at the request of the Vessel’s charterer which was destined for Brazil. JA107, ¶ 5. The Vessel was under long term time charter with a wholly unrelated third party who had use of the Vessel for a specific period of time in exchange for a specific hire rate. JA287-318. The Coast Guard was told promptly and repeatedly by Angelex that the full load of coal onboard did not belong to Angelex and that the continued delay of the Vessel would lead to serious and potentially catastrophic damages. Id. The government was provided with a copy of the charter party on April 24, 2013 and it was explained that the rate of hire being earned under the contract was higher than was available on the market rate. JA287-326. At all times, the government unreasonably failed, neglected, and/or refused to investigate or consider these issues when refusing to 7
District Judge Doumar properly found it was not a reasonable exercise of authority for the Coast Guard to demand a bond amount: 1) that failed to consider Angelex’s financial capacity to post a bond; 2) that included a non-owner of the Vessel, Kassian, to agree to security obligations; 3) that bore no relationship to the likely fine to be imposed which would be trumped by the foreign mortgage; 4) that bore no relationship to the available equity in the Vessel; 5) that disregarded lien priority and the preferred mortgage on the Vessel; 6) that failed to consider the ability of Angelex (or Kassian) to post 100% collateral for the surety bond; 7) failed to consider other recent security demands by the Coast Guard and/or criminal fines imposed in similar matters; 8) failed to consider the impact on third parties, such as Kassian, the Vessel charterer, cargo owner, receiver, and crew; and/or 9) that imposed non-monetary obligations which necessarily interfered with the rights of others. Angelex Ltd. v. United States, 2013 U.S. Dist. LEXIS 65846 (E.D. Va. 2013).
Specifically, District Judge Doumar made the following unrebutted and unchallenged findings concerning the Coast Guard’s unreasonable (mis)conduct:
The idea that by imposition of an unreasonable bond demand, the Coast
reconsider the bond amount required for the reinstatement of the Vessel departure clearance. JA407-408.
8
Guard might accomplish what it cannot do through prosecution of the underlying criminal offense—the extinguishment of a lawful business, to the detriment of its principals, its employees, its creditors, and its customers, but to the advantage of no one—without due process is simply repugnant to the Constitution. In more than thirty years on the bench, this Court can recall seeing no greater disregard for due process, nor any more egregious abdication of the reasonable exercise of discretion.
Angelex Ltd. v. United States, 2013 U.S. Dist. LEXIS 65846 (E.D. Va. 2013)(emphasis added). Judge Doumar entered an order setting bond at $1.5 million dollars; an amount which had been agreed to by Coast Guard counsel during negotiations at the May 6, 2013 hearing, but was subsequently rejected by Coast Guard Headquarters (without explanation). The government challenged the district court’s subject matter jurisdiction, arguing that Angelex’s action was premature and that the only permissible remedy would be an “after-the-fact” statutory claim for damages pursuant to 33 U.S.C. § 1904(h). The Fourth Circuit Court of Appeals vacated the District Court’s order setting a bond, and expressly held that 33 U.S.C. § 1904(h) provides a “safeguard,” which gives Angelex a distinct after-the-fact “remedy.” Angelex Ltd. v. United States, 723 F.3d 500, 509 (4th Cir. 2013).
9
On May 23, 2013, an eight (8) count Indictment was issued against Angelex as Owner of the Vessel; the Vessel’s ISM manager Kassian; and the Vessel’s Chief Engineer, Lambros Katsipis. JA469. Following a two (2) week criminal trial (beginning in late August 2013); both Angelex and Kassian were acquitted of all charges on September 13, 2013. Approximately four (4) days after the return of the jury’s verdict, the Coast Guard reinstated the Vessel’s departure clearance and the Vessel was permitted to depart the Eastern District of Virginia. JA469. The Vessel, her charterer, her crew, and her cargo, were inequitably and unreasonably detained and delayed by the Coast Guard for nearly six (6) months and Angelex was caused damages of approximately $4,200,000.
B. The District Court of D.C. Proceedings
The proceedings before the U.S. District Court for the District of Columbia were commenced on January 14, 2015, by Angelex’s filing of its original Complaint. JA10-27. Angelex was, at all material times, the owner of the Vessel; which is the company’s only income earning asset. JA106. In addition, Angelex was, pursuant to contract, the employer of all crewmembers working onboard. JA149-154. On February 24, 2015, the government filed a pre-answer motion to dismiss pursuant to FED R. CIV. P. 12(b)(6). JA2. The District Court issued a Memorandum Opinion and Order on August 24, 2015, denying the government’s motion to dismiss, in part, and granting the motion in part. JA28; JA29-54; reported at Angelex v. United States, 123 F. Supp. 3d 66, 83 (D.D.C. 2015). Specifically, the only 10 portion of Angelex’s claim which was dismissed related strictly to the initial “reasonableness of the withdrawal of the M/V ANTONIS G. PAPPADAKIS’ departure clearance on April 19, 2013.” Id. The District Court expressly held: “Defendant’s motion is otherwise denied.” Id.
In October 2015, Angelex filed its First Amended Complaint. JA55-105. The government subsequently filed, along with an Answer, a Motion for Summary Judgment seeking to resolve the remainder of Angelex’s claim. JA3. The District Court denied the government’s Motion for Summary Judgment without prejudice to renewal following the completion of discovery. JA4. Thereafter, the parties exchanged written discovery. Notably, the government never sought any depositions of the various witnesses disclosed by Angelex. Angelex deposed various government witnesses: (1) Area Port Director Mark Laria, CBP; (2) Special Agent Maria Milbourne, Coast Guard Investigative Service (“CGIS”)4; (3) Captain Jerry Barnes, U.S. Coast Guard, Chief of Prevention – Sector Hampton Roads; (4) Admiral Melissa Bert, U.S. Coast Guard, Office of International and Maritime Law at Coast Guard Headquarters; (5) Captain John Little, U.S. Coast Guard, Captain of the Port and Commander – Sector Hampton Roads; (6) Commander Laurina Spolidoro, U.S. Coast Guard, Staff Judge Advocate, Fifth Coast
4 The Coast Guard Investigative Service is a federal law enforcement agency established to carry out the Coast Guard’s internal and external criminal investigations. See https://www.dco.uscg.mil/our-organization/Intelligence-CG-2/. Last accessed January 30, 2019. 11
Guard District. The testimony from the government’s witnesses repeatedly underscored the unreasonableness of the government’s actions. Plaintiff identified at least four (4) witnesses who would have testified at trial as to the unreasonable delay to the Vessel and corresponding damages.
Following the close of discovery, the government renewed its Motion for Summary Judgment. JA7. Angelex filed a Cross-Motion for Summary Judgment. JA8. On September 28, 2017, the District Court issued its Memorandum Opinion granting the government’s motion for summary judgment and denying Angelex’s cross-motion, mistakenly concluding that there were no material facts in dispute;5 that the Coast Guard’s actions did not result in an unreasonable delay of the M/V ANTONIS G. PAPPADAKIS; and that Angelex was not entitled to relief pursuant to 33 U.S.C. § 1904(h). JA472; JA497. In its decision, the district court correctly acknowledged that the purpose of 33 U.S.C. § 1908(e) is to ensure payment of a criminal fine (or civil penalty) which might be incurred (and not to obtain a tactical advantage at any subsequent criminal trial and/or civil penalty). Id. (citing H.R. Rep. No. 96-1224, at 17 (1980)). After finding that the district court had the authority to determine whether the exercise of the Coast Guard’s discretion was reasonable (or not), the Court erroneously found the scope of the review “should be narrow” and that the court should “defer to the government’s judgment
5 Despite the fact that the question of reasonableness is a factual question reserved for a full trial on the merits. 12 as long as its actions fall within a range of reasonable outcomes.’ Id. (internal citations omitted).
This narrow review is at odds with the express statutory language and the ‘after-the-fact’ claim and remedy Angelex is entitled to (and seeks) to pursue. Angelex Ltd. v. United States, 723 F.3d 500, 508-09 (4th Cir. 2013). Here, the record is crystal clear that there was no analysis or contemporaneous consideration by the Coast Guard as to what would be a reasonable amount for a surety bond under 33 U.S.C. 1908(e); what would be reasonable in light of Angelex’s financial condition; the lack of ownership or equity interest in the Vessel by Kassian, the Vessel’s charterer, the cargo owners, the consignee, and the crew; and what would be reasonable as the investigation evolved and it became blatant that there could be no sustainable vicarious conviction of Anglex. The that there would be no vicarious liability for Angelex.
C. The Court of Appeals for the D.C. Circuit Decision
The D.C. Circuit Court of Appeals’ decision affirmed the district court opinion and impermissibly excused the unreasonable delay of the Vessel finding that APPS imposed an “outcome-oriented test.” Pet. App. 17. The opinion is in error, as the record and evidence before the district court made abundantly clear that the Coast Guard admitted that it reviewed none of the financial documentation submitted by Angelex and presented no inquiry as to the substance or veracity of the information and/or documents contemporaneously requested by the 13
Coast Guard. It is undisputed that the Coast Guard undertook no consideration or analysis of the reasonableness of the monetary and non-monetary conditions requested and exhibited blatant disregard for the specific facts and circumstances of this case. Such an approach was not a reasonable exercise of the government’s discretion. The lower court’s ruling fails to give the statute its plain meaning and renders the remedy provided by Congress meaningless.
D. The Statutory Framework of MARPOL and APPS
The International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (collectively MARPOL 73/78 or MARPOL), sets forth international standards and prescribes regulations aimed at preventing and minimizing pollution from ships. MARPOL includes detailed provisions relating to the cooperation of signatory states and enforcement of its provisions. These roles are designed to be consistent with the historic principles of the law of the sea and to preserve the critical role of the government under whose authority the ship is registered and operates: i.e. – the Vessel’s ‘Flag State Administration.’ The Flag State Administration for the M/V ANTONIS G. PAPPADAKIS was The Republic of Malta. MARPOL makes clear that its requirements will be enforced by the “Administration” and defines “Administration” for each ship as “the Government of the State under whose authority the ship is operating.” MARPOL 73/78, Article 2(5), 12 I.L.M at 1321. 14
Violations of MARPOL are subject to the jurisdiction and law of the Flag State Administration wherever the violation occurs. Id. at 1322. Port States6, such as the United States, are authorized and required to prohibit violations of MARPOL that occur “within the jurisdiction of [that] Party.” Id. at Art. 4(2), 12 I.L.M. at 1322. In such a case, the Port State may either cause proceedings to be taken in accordance with its laws or refer the matter to the Flag State Administration. Id.
“MARPOL is not a self-executing treaty; instead, each party agrees to ‘give effect’ to it.” United States v. Ionia Mgmt. S.A., 555 F.3d 303, 307 (2d Cir. 2009) (citing MARPOL, art. 1(1), 1340 U.N.T.S. 63, 184); United States v. Abrogar, 459 F.3d 430, 434 (3d Cir. 2006) (“Congress did not make every violation of MARPOL by every person a crime under US law.”). As such, the United States was required to enact legislation or take other action to make the provisions of MARPOL enforceable as a Port State. See Medellín v. Texas, 128 S. Ct. 1346, 170 L. Ed. 2d 190 (2008). To implement the substance of MARPOL as domestic law in the United States, Congress enacted APPS, 33 U.S.C. §§ 1901- 1915. Section 1902 provides that APPS and any regulations promulgated pursuant to it shall apply to the following:
6 When a Vessel enters the territorial waters or port of a country, that nation is referred to as the “Port State.” MARPOL 73/78, Art. 4(2), 12 I.L.M. 1322. 15
(1) to a ship of United States registry or nationality, or one operated under the authority of the United States, wherever located; and
(2) with respect to Annexes I and II of the Convention, to a ship, other than a ship referred to in paragraph (1), while in the navigable waters of the United States . . .
33 U.S.C. § 1902(a) (emphasis added);7 see also, Pet. App. 3 (“the Act authorized the Department of Homeland Security to enforce the Convention and “prescribe any necessary or desired regulations to carry out” the Convention’s obligations.”)(citing 33 U.S.C. § 1903(c)(1). In circumstances where the Coast Guard has reason to believe that there has been a violation of MARPOL and APPS, it may request CBP to withhold the vessel’s departure clearance unless and until reasonable surety satisfactory to the Coast Guard is provided.
7 The Flag State Administration, the Republic of Malta, retains exclusive jurisdiction to prosecute any MARPOL violation by the vessel (or its crew) while in international waters. It is well established that the United States’ jurisdiction over offenses is generally limited to the territory of the United States, its flagged vessels and/or conduct by its citizens. Abrogar, 459 F.3d at 430 (3d Cir. 2006); Yenkichi Ito v. United States, 64 F.2d 73 (9th Cir. 1933), cert. denied, 289 U.S. 762, 53 S.Ct. 796, 77 L.Ed. 1505 (1933). 16
E. The Statutory Purpose of 33 U.S.C. § 1908(e) and 33 U.S.C. § 1904(h)
The purpose for the entitlement to “surety” pursuant to 33 U.S.C. 1908(e) is to ensure the payment of a potential future fine or civil penalty which may be imposed in rem. It is not intended to shift the cost of prosecution to the defendant(s). The legislative history of APPS confirms that Congress intended the Coast Guard’s authorization to request CBP to withhold a vessel’s departure clearance was granted for the express purpose to obtain security to ensure the payment of a fine or civil penalty that might be imposed against a vessel in rem. See House Report No. 96-1224 reprinted in 1980 U.S.C.C.A.N. 4849, 4864. Specifically, the House of Representatives Committee on Merchant Marine and Fisheries, in discussing HR 6665 (the Bill that was subsequently enacted as APPS), stated:
To assure payment of any fine or civil penalties that might be incurred upon completion of criminal proceedings or civil penalty actions, the Secretary of Treasury is required to refuse or revoke clearance to any ship upon the request of the Secretary of Transportation. However, clearance may be granted upon filing a bond or other satisfactory security.
Id. (emphasis added).
17
The necessary and meaningful check on the government’s conduct is found at 33 U.S.C. §1904(h):
Compensation for loss or damage. A ship unreasonably detained or delayed by the Secretary acting under the authority of this chapter is entitled to compensation for any loss or damage suffered thereby.
Id. The incorporation of the language into APPS is not by accident or fortuitous. It is the U.S. codification of a protection which is also found in MARPOL to prevent the unreasonable delay or detention of a vessel. The applicable clause from MARPOL provides in relevant part:
When exercising control under this regulation all possible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is thereby unduly detained or delayed it shall be entitled to compensation for any loss or damage suffered.
See MARPOL, Arts. 5-6.
The Fourth Circuit Court of Appeals acknowledged and summarized the purpose and grounds for an APPS 1904(h) action as follows:
Finally, APPS contains a built-in safeguard to governmental abuses . . . In addition to the criminal and civil 18
penalties that APPS authorizes the United States to seek, APPS provides for compensation for loss or damage as a result of unreasonable detention by the Coast Guard. Section 1904(h) provides, “A ship unreasonably detained or delayed by the Secretary acting under the authority of this chapter is entitled to compensation for any loss or damage suffered thereby.” 33 U.S.C. § 1904(h). This provision is, as the government asserts, an “after-the- fact damages remedy against the United States for unreasonable detention or delay.” Appellant's Br. 37. This safeguard gives Appellees a remedy. . .
Angelex Ltd. v. United States, 723 F.3d 500, 508-09 (4th Cir. 2013) (emphasis added).
Notwithstanding the facts and evidence presented to the District Court of the unreasonable delay of the Vessel imposed by the Coast Guard, and the Court’s recognition that the only purpose of 33 U.S.C. 1908(e) is to ensure payment of a fine or penalty; the Coast Guard continued to delay the Vessel as “security” during the pendency of the entire criminal proceedings in the Eastern District of Virginia despite the fact that recovery would be impossible against the M/V ANTONIS G. PAPPADAKIS. 19
REASONS FOR GRANTING THE PETITION
I. CERTIORARI SHOULD BE GRANTED TO RESONLVE A CONFLICT BETWEEN THE D.C. CIRCUIT COURT OF APPEALS AND THE FOURTH CIRCUIT COURT OF APPEALS
In the emergency proceedings before the U.S. District Court for the Eastern District of Virginia in 2013, District Judge Doumar found that the Coast Guard’s failure to consider, challenge, or rebut the financial records requested and received from Angelex (and Kassian) concerning the inability to post a bond in the amount of $2.5 million dollars was sufficient evidence of the Coast Guard’s unreasonable conduct. Specifically, Judge Doumar found:
The Coast Guard insists that the petitioner post a $2.5 million bond, and no less, as a condition for receiving departure clearance. The petitioners claim that they are financially unable to pay a cash bond or secure a surety bond in that amount, and they have proffered company financial reports and other records in support . . .The record before the Court includes persuasive evidence that a $2.5 million bond—8 or fine for that matter—is
8 See, e.g., Angelex Ltd. v. United States, 2013 U.S. Dist. LEXIS 65846, *25-27, 2013 AMC 1217 (E.D.Va. 2013) (“Indeed, a court's imposition of a fine so substantial that it wiped out a business organization would itself be an abuse of discretion. See 20
simply beyond the financial wherewithal of the petitioners. . .
Angelex Ltd. v. United States, 2013 U.S. Dist. LEXIS 65846, *12, 25, 2013 AMC 1217 (E.D. Va. 2013)(emphasis added).
On appeal, the Fourth Circuit Court of Appeals ruled that District Judge Doumar lacked subject matter jurisdiction to consider the reasonableness of the government’s conduct at that time. The Fourth Circuit Court of Appeals held that the government conduct was properly subject to after-the-fact judicial review for “reasonableness.” That court acknowledged and summarized the purpose and legal basis for a statutory recovery action pursuant to 33 U.S.C. § 1904(h) as follows:
Finally, APPS contains a built-in safeguard to governmental abuses . . . In addition to the criminal and civil penalties that APPS authorizes the United States to seek, APPS provides for compensation for loss or damage as a result of unreasonable detention by the Coast Guard. Section 1904(h) provides, “A ship unreasonably detained or delayed by the Secretary acting
Standard Oil Co. of Indiana v. United States, 164 F. 376, 386- 89 (7th Cir. 1908) (“[T]his is not the punishment of an unlawful business, but the punishment of unlawful practices connected with a lawful business . . . .”).
21
under the authority of this chapter is entitled to compensation for any loss or damage suffered thereby.” 33 U.S.C. § 1904(h). This provision is, as the government asserts, an “after-the- fact damages remedy against the United States for unreasonable detention or delay.” Appellant's Br. 37. This safeguard gives Appellees a remedy. . .
Angelex Ltd. v. United States, 723 F.3d 500, 508-09 (4th Cir. 2013) (emphasis added); see also Watervale Marine Co Ltd. v. United States, 807 F.3d 325, 331 (D.C. Cir. 2015) (“We note that another statutory section provides a ship owner with a cause of action for the government’s unreasonable delay in granting departure clearance.”) (citing 33 U.S.C. § 1904(h)).
The lower court holdings in this case that the bond demand of $2.5 million dollars was “objectively reasonable” because there could have been a hypothetical criminal fine or penalty at or in excess of $2,500,000 is in error. Pet. App. 16-17. The court of appeals’ endorsement of an after-the-fact justification (as opposed to considering the reasonableness of the government conduct in a proper, contemporaneous temporal context), sets a standard which renders the statutory remedy meaningless and excuses government misconduct so long as hypothetical, after-the-fact justification Is proffered. Taken to its illogical conclusion, the lower court’s decision improperly permits the government to always avoid paying compensation for 22 unreasonable delay and detention to a vessel pursuant to 33 U.S.C. § 1904(h), by claiming that there was a hypothetically justifiable reason (without regard for the contemporaneous facts or circumstances).
The applicable judicial standard of review for the determination of “reasonableness” is based on the plain meaning of the text of the statute. Watt v. Alaska, 451 U.S. 259, 267, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981) (“We must read the statutes to give effect to each word if we can do so while preserving their sense and purpose.”). In a case involving the review of agency conduct by the Equal Employment Opportunity Commission, this Court was tasked with determining the appropriate scope of judicial review to determine whether the agency’s actions complied with the statutory requirements of Title VII. Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1652-53 (2015). The question of whether the EEOC’s agency action could be reviewed after the fact by a Court was answered resoundingly in the affirmative:
Absent such review, the [Agency’s] compliance with the law would rest in the [Agency’s] hands alone. . . . We need only know—and know that Congress knows—that legal lapses and violations occur, and especially so when they have no consequence.9
9 It bears repeating that U.S. District Judge Doumar, when faced with review of the Coast Guard’s unreasonable actions in this case, wrote: “In more than thirty years on the bench, this Court can recall seeing no greater disregard for due 23
That is why this Court has so long applied a strong presumption favoring judicial review of administrative action.
Id. (emphasis added).
In determining the “scope” of the judicial review available, this Court looked to the text of the statute governing the EEOC’s exercise of agency authority. Specifically, the statute in question in that case demanded “that the EEOC communicate in some way (through “conference, conciliation, and persuasion”) about an “alleged unlawful employment practice” in an “endeavor” to achieve an employer’s voluntary compliance. §2000e-5(b).” Mach Mining, supra at 1655. In reflecting on the statute’s language and the obligations Congress imposed on the EEOC, this Court relied on the plain meanings of the text of the statute as defined in the dictionary. This Court held that the judicially manageable standard of review of the agency’s exercise of discretion must be measured against the statutory text provided by Congress. Here, the lower courts erred in not analyzing the government’s conduct under the totality of the circumstances and applicable facts at the time of their occurrence. The lower courts failed to give 33 U.S.C. § 1904(h) its plain meaning in accordance with the statutory text provided by Congress.
process, nor any more egregious abdication of the reasonable exercise of discretion.” Angelex Ltd. v. United States, 2013 U.S. Dist. LEXIS 65846 (E.D. Va. 2013) (emphasis added). 24
The critical word in 33 U.S.C. § 1904(h) is “unreasonable,” which is defined by Merriam- Webster as “not governed by or acting according to reason; exceeding the bounds of reason or moderation.” Unreasonable, Merriam-Webster.com, https://www.merriam-webster.com/dictionary /unreasonable (last visited January 30, 2019). This is the plain and straightforward meaning of the critical phrase contained in 33 U.S.C. § 1904(h) and provides the basis for which this Court should direct review of the Coast Guard’s unreasonable delay of the M/V ANTONIS G. PAPPADAKIS. The interpretation is critical because Congress has not left everything to the discretion of the Coast Guard. As the U.S. Supreme Court explained in Mach Mining, “Consider if the EEOC declined to make any attempt to conciliate a claim—if, after finding reasonable cause to support a charge, the EEOC took the employer straight to court. In such a case, Title VII would offer a perfectly serviceable standard for judicial review: Without any “endeavor” at all, the EEOC would have failed to satisfy a necessary condition of litigation.” Mach Mining, supra, at 1652.
Here, the government failed, neglected, and/or otherwise refused to consider any fact and/or circumstances in the present case and/or applicable hornbook admiralty law concepts when issuing its non-negotiable surety demands. Similarly, the government unreasonably failed to consider any of the hardships caused by the imposition of other onerous and unconscionable non-financial terms. Such a blind and heavy-handed approach is patently unreasonable in the face of the numerous facts 25 provided to the government which clearly show that the continued delay of the Vessel was not required and could not bear fruit vis-à-vis an enforcement action by the government under any circumstances.
This case merits review because reasonableness of the government’s delay of the Vessel must be measured under the totality of the circumstances and against the contemporaneous actions of the government at the time they occur. The lower courts have conflated the timing of when the remedy becomes available (“after-the-fact”), with the review of the of the reasonableness of the conduct by the government at the time it occurred. To permit the lower court’s holding to stand, which excuses the unreasonableness of the government’s actions in exchange for any asserted prosecutorial interest after the fact turns 33 U.S.C. § 1904(h) on its head.
The statute provides the aggrieved ship owner with a statutory right to pursue compensation for unreasonable delay and detention to a vessel. It does not provide an after-the-fact basis for the government to seek to excuse its conduct by asserting that the end always justifies the means. “[I]n government as in life, a good end does not justify any and every means.” Midwest Video Corp. v. FCC, 571 F.2d 1025, 1041-42 (8th Cir. 1978).
“The fundamental principle that governmental agencies are limited to the exercise of power delegated by the Congress would be nullified if an agency . . . were at liberty to expand its jurisdiction, 26
as far and wide as it wished, by the facile, case-by-case step of re-writing the objectives found in the delegating statute. If “jurisdiction” be synonymous with agency-drafted, ad hoc “objectives,” Congress and the courts become essentially superfluous.”
Id. Accordingly, this Court’s review is merited.
II. CERTIORARI SHOULD BE GRANTED BECAUSE THE LOWER COURT’S DEFINITION AND APPLICATION OF WHAT CONSTITUTES “UN- REASONABLE” DELAY WILL HAVE A SIGNIFICANT IMPACT ON MARITIME TRANSPORTATION
The D.C. Circuit Court of Appeal acknowledged that this case is one of first impression. Pet. App. 2. As this is the first claim brought by a ship owner under 33 U.S.C. § 1904(h), it will serve as an important precedent and appropriate check on future government (mis)conduct. Notwithstanding, the lower courts adopted a an untenable and erroneous rule and application of what constitutes “unreasonable” delay and detention of a vessel, which serves to render meaningless the statutory remedy set out at 33 U.S.C. § 1904(h) and will negatively impact international shipping and foreign commerce.
27
A. The Inability to Post the Bond
The lower courts both erroneously excused the failure of the government to conduct any analysis of the financial ability of Angelex to post a bond in the amount of $2.5 million dollars. Such a ruling will improperly chill judicial review of future claims presented under 33 U.S.C. § 1904(h). The court of appeals excused the government’s failure to assess the specific factual circumstances of Angelex and the Vessel and the Coast Guard/CBP’s failure to consider the reasonableness of the departure clearance withholding, ruling that the Coast Guard’s demand for a $2.5 million dollar bond was ‘objectively reasonable’, as it was within the theoretical realm of criminal fines arising under 33 U.S.C. § 1908(a). Pet. App. 14-16. The court of appeals impermissibly shifted the review away from whether the Coast Guard’s failure to conduct any review of the facts and law resulted in an ‘objectively reasonable’ conclusion, and instead affirmed the district court’s dismissal of the case on the grounds Angelex did not submit sufficient financial records for the district court’s review. Pet. App., 14.
Its undisputed in the record and repeatedly confirmed by the Coast Guard’s own witnesses that the government never performed any analysis as to Angelex’s ability to post a bond and/or non-party Kassian’s lack of ownership and/or equity in the Vessel. More to the point, the Coast Guard did not (and does not) believe that it had any obligation to do such an analysis (and therefore did not do so); as was 28 confirmed by Coast Guard Commander Laurina Spolidoro, during her deposition:
Q: …Would you agree with me that it would be reasonable to consider the ability of the owner or operator to post a bond when determining what an appropriate amount for a surety bond should be?
A: I think it would be generous of the Captain of the Port10 to consider that. I don’t think he needs to consider it. . . .
Q: Wouldn’t it be reasonable to take a view at the companies’ viability, meaning look
10 Captain of the Port, Captain Little testified that he was not ever advised of the request for and/or the receipt of Angelex (and Kassian’s) financials and certainly did not consider these records as part of the bond demand. Q. Did anyone report to you the contents of the company's financials, which were provided to the Coast Guard? A. No, sir, not that I'm aware of. Q. Okay. Did you perform or did you request anyone to perform an investigation of the assets of the owning company – A. No, sir. JA383. Captain Little did not know about the financials because he did not have the decision-making authority to set the bond demanded in this matter. JA390 (in discussing whether a lower bond amount would be acceptable, Captain Little testified “It wasn’t necessarily unsatisfactory to me. It was just something that I was not authorized if you will, or given the green light to release the ship by the district.”). 29
at what other income earning assets that the companies may have, if any?
A: I don’t think that’s required in a surety negotiation.
Q: I’m not asking if its required. I’m asking would it be reasonable as one of the factors that you told us that you consider once you get beyond the template form.
A: Because we don’t have the expertise to do that and it takes a long time to do, I don’t see how doing that is reasonable in every case.
Q: Okay. Well, you’re talking about at the initial detention stage, but this ship sat there for 165 days. Are you telling me that it would be unreasonable to expect a prudent Coast Guard investigator, a Coast Guard lawyer, in 165 days to get experts involved to value the business, if that’s what they wanted to do?
A: I’m not sure why we would need to value the business.
JA398-401, Spolidoro Dep.; JA432. The Coast Guard never conducted any review of Angelex’s ability to pay, despite months to review the financial records which were requested by and provided to the Coast Guard. JA420-423; see also JA383, Captain Little Dep.; JA354, Captain Barnes Dep.; JA402, 30
Commander Spolidoro Dep. No one from the government requested assistance with analyzing the financials provided by Angelex, the requirements to obtain a surety bond, or otherwise did any analysis of Angelex’s ability to post a bond. JA402-403. The failure to do so was unreasonable.
B. The Failure to Consider the Vessel’s Mortgage or Priority of Liens
The Coast Guard also unreasonably failed to consider hornbook admiralty law vis-à-vis the government’s inability to enforce any fine. Despite U.S. statutes and case law directly on point, Admiral Melissa Bert confirmed that neither she nor anyone else at Coast Guard Headquarters or District Legal though to consider the mortgage indebtedness of the Vessel or where the ship mortgage would rank under the Commercial Instruments and Maritime Lien Act (“CIMLA”). 46 U.S.C. § 31301, et seq.. JA369. No analysis or consideration was given to what, if any, recovery the Coast Guard could even expect to have by requiring the Vessel to remain in the district:
Q. Let me ask my question again. Based on your legal training, education, background, and experience as a commanding legal officer in a Coast Guard district, are you generally aware of the ranking of liens and claims against vessels? . . .
A. I do not know what they would be in this case.
31
Q. Did you ask anybody to brief you or advise you on where any Coast Guard penalty or fine would rank?
A. No.
Q. Did you direct anyone to research that issue?
A. No.
JA370, Admiral Bert Dep. No one else at the Coast Guard did either. JA405 (Commander Spolidoro confirming that she did not do any research on the priority of liens and was unfamiliar with the Commercial Instruments and Maritime Lien Act); JA388-389 (Captain Little unaware of the priority of lien claims and did not recall obtaining an opinion from the lawyers for the Coast Guard on where such a claim would rank or the ability of the United States to recover a fine or penalty). The failure by the Coast Guard decision makers to even conduct the most basic legal research, coupled with the failure to identify that a potential fine or penalty would be subordinate to the USD 10,500,000 mortgage on the Vessel (estimated to be worth USD 6,500,000) was unreasonable, at best, and likely better described as grossly negligent, reckless, and/or malicious.
Notably, nearly every lien claim, (including, but not limited to preferred ship mortgages) rank higher in priority than any lien that the Coast Guard could have obtained following the assessment of a fine or penalty for a violation of federal statute. See United States v. One 254 Ft. FREIGHTER, M/V ANDORIA, 32
570 F. Supp. 413, 415 (E.D. La. 1983), aff'd, 768 F.2d 597 (5th Cir. 1985). Federal case law is consistent and clear that the priority of liens will be applied in favor of third-parties which hold valid liens against the vessel, and will always prime enforcement claims by the government. See, e.g., Ramirez v. United States, 767 F. Supp. 1563, 1991 U.S. Dist. LEXIS 11471, 1991 AMC 2462 (M.D. Fla. 1991) (analyzing priority of liens and finding that seafarers of the M/V AMAZON SKY were entitle to wages lien which primed the United States Customs Service’s denial of their wages claim where the subject vessel was seized and forfeited for importing cocaine into the United States); The Mary A (United States of America v. Martinson), 52 F.2d 982 (E.D.N.Y. 1931) (The vessel MARY A was forfeited for violation of the National Prohibition Act, but all claims for maritime liens from services provided by claimants that provided necessaries to the vessel were granted priority over the forfeiture).
C. The Lower Court’s decisions improperly excuse the government’s unreasonable delay of the Vessel
The decision by the lower courts to ‘rubber-stamp’ the Coast Guard’s refusal to even consider any of the applicable financial conditions of Angelex and/or the value of the vessel and potential enforcement remedies against the M/V ANTONIS G. PAPPADAKIS under the law is unreasonable. Angelex’s claim for damages is a remedy which has historic roots in U.S. law as a check and balance on a government agency’s unreasonable delay of a vessel. 33
In Gilchrist v. Collector of Charleston, Justice William Johnson, sitting by designation (from the U.S. Supreme Court) on the Circuit Court of South Carolina wrote:
The courts of the United States never have laid claim to a controlling power over officers vested by law with an absolute discretion, not inconsistent with the constitution; for in such a case, the officer is himself the paramount judge and arbiter of his own actions. Nor would they, for the same reason, undertake to control the acts of an officer who is a mere agent of the executive or any other department, in the performance of whatever may be constitutionally, and is by law, submitted to the discretion of that department; for in that case, the process of the court should be directed to the head of the department, or it should not issue at all. In such cases there is an evident propriety in leaving an injured individual to his action for damages; . . . The courts will not interfere to prevent the act; because the law authorizes it. But as the law did not authorize it for individual oppression, they will give damages to the individual who suffers by the wanton exercise of a legal power.
10 F. Cas. 355, 356 (C.C.D.S.C. 1808) (emphasis added); see also Sumner v. Philadelphia, 23 F. Cas. 392, 396 (C.C.E.D. Pa. 1873) (Where the Court held that without the ability to impose compensation and 34 damages upon the government for an unreasonable delay, “there would be practically no restraint upon the most arbitrary and unreasonable detentions.”).
Here, the Coast Guard’s insistence on a $2.5 million dollar bond, plus other onerous non-financial terms on Angelex (and non-party Kassian), was unreasonable under the facts and circumstances of this case. However, the record is crystal clear that there was no analysis or contemporaneous consideration by the Coast Guard as to what would be a reasonable amount for a surety bond under 33 U.S.C. 1908(e); what would be reasonable in light of Angelex’s financial condition; what would be reasonable to third parties, such as Kassian, the Vessel’s charterer, the cargo owners, the consignee, and the crew; and what would be reasonable as the investigation evolved and it became clear that there would be no vicarious liability for Angelex (or Kassian).
The reality of Angelex’s position, is that the lower courts have created an avenue through which the Coast Guard and CBP can always justify their unreasonable demands for the surety bond based on the objective goal of enforcing MARPOL and APPS without regard to the factual specifics of each case and the ability of a vessel owner to post the surety bond demanded or the equity in the vessel to secure a potential judgment where it is encumbered by a preferred ship mortgage with a higher priority lien. Thousands of shipowners are in similar straights. This Court’s review is merited. 35
CONCLUSION
For the foregoing reasons, this Court should grant the Petition for Writ of Certiorari.
Dated: January 31, 2019
Respectfully submitted,
*George M. Chalos *Counsel of Record Briton P. Sparkman CHALOS & CO., P.C. 55 Hamilton Avenue Oyster Bay, New York 11771
Tel: (516) 714-4300 Fax: (516) 750-9051 Email: [email protected]