[00:00:21] Speaker 02:
guilty at trial on three or four counts.

[00:00:50] Speaker 04:
Maybe I'd like to ask a question that is a little bit prior to us getting to the actual problem here.

[00:01:00] Speaker 04:
In my understanding, there was a judgment on September the 18th of 2023 that your client was sentenced to 12 months and one day to be served consecutively for three different counts, this being one of the three counts, that they were all consented

[00:01:29] Speaker 04:
out now.

[00:01:32] Speaker 04:
That's what I have.

[00:01:34] Speaker 04:
Why is this not moot?

[00:01:37] Speaker ?:
Your Honor, it's not moot from a lot of other reasons that Chief Karaki is currently detained on a place.

[00:01:46] Speaker ?:
He's not detained on any of this.

[00:01:48] Speaker 02:
Well, he is detained because of the convictions here, and we moved in the district court for him to be released at the conclusion

[00:02:05] Speaker 02:
and denied the motion he stands.

[00:03:35] Speaker 02:
And they're desperate to get their father and husband home.

[00:03:40] Speaker 02:
He is desperate to be home.

[00:03:42] Speaker 02:
I spoke with him the day before yesterday.

[00:03:45] Speaker 02:
I am optimistic that if this court vacates the conviction on count two,

[00:03:57] Speaker 02:
Chief Karake, back to the Crimean Peninsula.

[00:04:00] Speaker 02:
That's my goal.

[00:04:01] Speaker 02:
All right.

[00:04:01] Speaker 04:
Well, I just threw that in because I, I mean, I'm, I cast myself, made this head work on this particular case.

[00:04:09] Speaker 04:
I thought, boy, maybe I got an easy way out.

[00:04:12] Speaker 04:
So you said I haven't.

[00:04:15] Speaker 04:
Could the United States refer the failure to make this record board, record book entry to Liberia?

[00:04:24] Speaker 04:
Yes, that's what it's out.

[00:04:32] Speaker 04:
violated.

[00:04:34] Speaker 02:
So based on the jury's findings, the jury appeared to conclude that on the high seas, Chief Karavky

[00:05:06] Speaker 04:
Could he also go back to Liberia under item one?

[00:05:12] Speaker 02:
Under, uh, Subsection one of- Under one of Marple Regulation 17.

[00:05:17] Speaker 02:
17.

[00:05:19] Speaker 02:
I don't have it in front of me, but probably, Your Honor.

[00:05:23] Speaker 04:
Because if he could go back to there on one, would Liberia be talking about whether it was correctly done?

[00:05:43] Speaker 02:
need to be correct.

[00:05:45] Speaker 02:
No, Your Honor.

[00:05:46] Speaker 02:
What I'm arguing is that under Item 1, under Item 1, well, Item 1 of Regulation 17, Marple of Regulation 17 says the vassal shall be provided with an oil record book.

[00:05:59] Speaker ?:
It was provided with an oil record book, so I don't think he could be

[00:06:26] Speaker 04:
You've got to put all this information in the log book, and then it says, and I read to you, because that's the thing that makes it the most worrisome to me, the oil record log book.

[00:06:59] Speaker 04:
shall be considered accordingly.

[00:07:01] Speaker 04:
In other words, you don't have to really worry exactly about those, about what should be put in about oil quantity, but that also seems to indicate that even under MARPOL, one ought to make

[00:07:28] Speaker 02:
I should choose my words carefully.

[00:07:30] Speaker 02:
Marple doesn't directly regulate vessels or crews, but it's implemented by flag state law and the flag state law does.

[00:07:37] Speaker 02:
So under Liberian law, any incorrect entry was a violation of Liberian law.

[00:07:43] Speaker 02:
I had a related argument in the first circuit too much ago.

[00:07:46] Speaker 04:
So if it's a violation of the law, then why is it that

[00:07:57] Speaker ?:
let the United States get outside their jurisdiction.

[00:08:01] Speaker ?:
The only thing that the United States has done here is they have suggested that maintain equals have correct regulations.

[00:08:14] Speaker 02:
And that all seems to me you're admitting MARPOL also requires.

[00:08:20] Speaker 02:
MARPOL requires active regulations and APPS requires active regulations.

[00:08:23] Speaker 02:
The question is

[00:08:26] Speaker 02:
an inaccurate entry that occurs on the high seas.

[00:08:31] Speaker 02:
And the government hasn't disagreed that under Mar-a-Pol, the flag state prosecutes it.

[00:08:36] Speaker 02:
And the government hasn't disagreed that under Acts, as written by Congress, the flag state gets to prosecute it.

[00:08:42] Speaker 02:
And if we don't like what the flag state does, we arbitrate in front of the International Maritime Organization and say, hey, this is a slap on the

[00:08:57] Speaker 02:
and argued in the First Circuit case of mine two months ago that his problem with Liberia is it only allows for license, suspension, and civil penalties.

[00:09:49] Speaker 03:
They've been wrong since 2008.

[00:09:51] Speaker 03:
If this was an important enough question, then do you think the Supreme Court will have addressed it in any one of those three times that it's been decided?

[00:10:01] Speaker 02:
I don't know where the search has been requested.

[00:10:03] Speaker 02:
I think there's a good chance that this court agrees with those either way.

[00:10:07] Speaker 02:
Why would we create a circuit split?

[00:10:09] Speaker 02:
Well, I think the Supreme Court may take this case one way or the other, Your Honor, including because of the question that's presented by whether

[00:10:18] Speaker 02:
If it's agreed that the international community said that's Liberia's job, and Congress said that's Liberia's job, and the purpose of the regulation, which given all the history we've done investigating how the regulation came to be and why the words are there, if the purpose of the regulation was to change the congressional and international community determination that this is Liberia's matter, if the Coast Guard decides

[00:11:00] Speaker 02:
of this interpretation of the regulation is to give our country jurisdiction over high seas events and high seas record keeping, because the requirement for accuracy is already there in the law.

[00:11:14] Speaker 02:
We haven't added an accuracy requirement at all.

[00:11:16] Speaker ?:
We've only added a change in the congressionally established determination of who's going to enforce that accuracy requirement.

[00:11:26] Speaker 04:
And it is... So you're not arguing that there is

[00:11:32] Speaker 04:
arguing that maintain doesn't mean accuracy.

[00:11:37] Speaker 04:
I mean, I've read your brief pretty carefully.

[00:11:40] Speaker 04:
That's what I thought you were saying.

[00:11:41] Speaker 04:
Maintain doesn't mean accuracy.

[00:11:43] Speaker 04:
That's what you argued in the brief.

[00:11:44] Speaker 03:
Are you abandoning those arguments today?

[00:11:47] Speaker 03:
No, Your Honor, they're both arguments.

[00:11:50] Speaker 02:
Maintain, as used here, doesn't mean accuracy.

[00:11:55] Speaker 02:
But other provisions in our poll

[00:11:58] Speaker 02:
and in regulation 17, Your Honor, make clear that accuracy is required.

[00:12:04] Speaker 04:
I mean, I went through 17 and I tried to find something that really went to accuracy and I couldn't find it.

[00:12:14] Speaker 02:
It shall be recorded fully and completely without delay.

[00:12:18] Speaker 02:
That to me completely requires accuracy much more than the word maintain a record requires accuracy.

[00:12:25] Speaker 04:
Okay, so that's where you

[00:12:39] Speaker 04:
to put my own theory on it.

[00:12:41] Speaker 04:
So I tried to look at the statute and make it harmonize with each other.

[00:12:46] Speaker ?:
You argued it ought to be kept or preserved.

[00:12:50] Speaker 04:
But I was going to say to you, how can it be kept or preserved when I go down to I, J, and K, and I look at J, and J has kept and maintained

[00:13:09] Speaker 02:
are required to keep an oil record book.

[00:13:12] Speaker 02:
And there's no place where it says who has to keep an oil record book other than who has to maintain one.

[00:13:18] Speaker 02:
So, maintain does mean keep in that sentence.

[00:13:22] Speaker 02:
And then also, you know, that subsection... Just a minute.

[00:13:25] Speaker ?:
Sure.

[00:13:25] Speaker ?:
The master having charge of a ship required to keep shall also be responsible for maintenance.

[00:13:33] Speaker ?:
For the maintenance.

[00:13:33] Speaker ?:
So, they're saying that it isn't just keeping it, he's also responsible for maintenance.

[00:14:12] Speaker 04:
of this annex, which is not maintained.

[00:14:16] Speaker 04:
That gets rid of A, maintained in A. But then I look at the appendix three of the annex, and there I find it's got to be correct.

[00:14:26] Speaker 02:
So here's sort of the clearest reason why the circuits that have said maintain adds a correctness requirement.

[00:14:35] Speaker 02:
The first is it's already there.

[00:14:37] Speaker 02:
But the second is it doesn't make any sense in this context.

[00:15:00] Speaker 02:
We know from those provisions, but also from the regulation, the master is not going to make any of these entries.

[00:15:09] Speaker 02:
He's not going to know whether they're accurate.

[00:15:12] Speaker 02:
So, in a different context, being responsible to maintain

[00:15:40] Speaker 02:
in our argument in our initial briefing in the reply brief is that under 2B, you can only have liability if you cause someone to act, not if you cause someone to fail to fulfill a duty.

[00:15:58] Speaker 02:
I'm a mandatory reporter of various things because I'm a lawyer in a few states.

[00:16:03] Speaker 02:
If someone doesn't tell me about an event that I would have to report, that person hasn't caused

[00:16:23] Speaker 02:
Thank you.

[00:17:28] Speaker 04:
out where accuracy is involved in that particular regulation.

[00:17:34] Speaker 04:
It may be in other regulations, but we're only talking about 17.

[00:17:39] Speaker 04:
And I'm trying to make it work.

[00:17:41] Speaker ?:
So how does the government get there?

[00:17:43] Speaker ?:
It seems to me the other circuits get there by saying, we don't know what maintain is, so we're just going to go to the dictionary, and we're going to pick the definition we like best, and we're going to put it in there, and there it is.

[00:18:00] Speaker 01:
the other circuits I don't think that's what I haven't seen any I have not one seen anything about the text of 151.25 in any of these other Joe Ionia or best artists well what the other courts did is apply the traditional tools of construction I

[00:18:39] Speaker 01:
As you've mentioned, the duty to keep, um, the duty to, um... What language?

[00:18:54] Speaker 01:
Your Honor, I apologize for not being able to point to the exact language, but the language that you were referring to earlier.

[00:19:00] Speaker 01:
Well, I didn't refer to any language in the

[00:19:09] Speaker ?:
traditional tools of construction, right?

[00:19:11] Speaker ?:
What they did, they looked at the plain meaning of the word maintain, particularly in the record-keeping context.

[00:19:19] Speaker ?:
You can't get to your hypothesis of what maintain means and go to the dictionary first.

[00:19:26] Speaker 04:
That's only if it's ambiguous.

[00:19:29] Speaker 04:
That's the only way you do that.

[00:19:32] Speaker 04:
Under real statute

[00:19:39] Speaker ?:
harmonized with the statute in which it's in.

[00:19:42] Speaker 04:
And frankly, the statute which this is in doesn't say anything about it because the statute doesn't say anything except the Coast Guard posts the regulations.

[00:19:52] Speaker ?:
So I look at the regulations and I've got them here in front of me and I'm trying to make them consistent.

[00:19:58] Speaker 04:
I say to myself, well, it can't be keep because that's what he, I think, was arguing because

[00:20:09] Speaker 04:
And he's also required to maintain.

[00:20:12] Speaker 04:
But I got nothing else that says maintain means accuracy.

[00:20:18] Speaker 01:
Well, let me then first go to the purpose of the statute which the regulation is implementing.

[00:20:24] Speaker 01:
The purpose of the statute is what Congress thinks it is.

[00:20:28] Speaker 04:
I mean, don't we have a lot of law that says we don't go there?

[00:20:39] Speaker ?:
I can't find accuracy there, and I've looked through the whole statute to make it.

[00:20:45] Speaker ?:
I don't have to say it's ambiguous.

[00:20:47] Speaker 04:
I can just say, I'll look at Maripol to say what it means.

[00:20:52] Speaker 01:
And you can't do that, Your Honor, but the purpose of the statute is an anti-pollution statute, right?

[00:20:56] Speaker 01:
I understand.

[00:20:57] Speaker 01:
But, and it's important to have accurate

[00:21:17] Speaker 01:
the authority cited for this regulation.

[00:21:20] Speaker 01:
The regulation also cites the Clean Water Act, which implements the Oil Pollution Act, and also cites the Marine Casualty Statute, which defines a marine casualty to include a pollution event.

[00:21:33] Speaker 01:
So, when you look at the overall purpose for this regulation and the statutes that it's implementing, it's an anti-pollution statute.

[00:22:11] Speaker 03:
So what would we take that, what would it do in terms of either undermining the whole intent

[00:22:39] Speaker 01:
violations there either.

[00:22:41] Speaker 01:
But going back to the other statutes again, it's important to have an accurate oil record book because it allows the Coast Guard to prevent potential future incidents in the United States, in the navigable waters of the United States, consistent with not only APPS but with the Clean Water Act and the Marine Casualty Statute.

[00:23:02] Speaker 01:
And it's also important to note

[00:23:06] Speaker 01:
U.S.C.

[00:23:07] Speaker 01:
721, which states that no vessel shall enter the United States or U.S.

[00:23:14] Speaker 01:
port that is in violation of MARPOL or has a history of accidents.

[00:23:28] Speaker 01:
necessary for the Coast Guard to perform its gatekeeping role, just like the Border Patrol does at airports or at vehicle crossings.

[00:23:35] Speaker 01:
In this way, it's similar to having an accurate passport.

[00:23:38] Speaker 01:
In order for the Border Patrol to do its job, to know whether somebody is allowed to enter the United States, they have to have an accurate passport.

[00:23:46] Speaker 01:
Same here in this statute.

[00:24:02] Speaker 04:
I looked at the federal law governing official log books for domestically flagged vessels, and the domestic vessels of a certain tonnage or those voyaging to a foreign port other than the port in Canada shall have an official log book, 46 USC 11301A, in which the master

[00:24:39] Speaker 04:
look at those are instructive.

[00:24:42] Speaker 04:
First, the statute separately penalizes failing to maintain an official record book and failing to maintain an entry in the vessel's official log book.

[00:24:55] Speaker 04:
All of those covered under DEF, none under A. Second, if 303A and B are understood to parallel the substantive requirements

[00:25:15] Speaker 04:
have.

[00:25:18] Speaker 04:
So in that instance, they don't go to accuracy.

[00:25:22] Speaker 04:
Well, as the other question... All I'm trying to do is understand what this language says.

[00:25:27] Speaker ?:
I don't want to be against my colleagues.

[00:25:29] Speaker ?:
I've got three circuits who are saying something different, but I couldn't find anybody looking at the text, so I wanted you to help me.

[00:25:39] Speaker ?:
I understand your

[00:25:52] Speaker ?:
My first look to understand what a statute means is not to say it's ambiguous and go to the dictionary.

[00:26:03] Speaker 04:
My first look is to look at the statute and make it coordinate with itself.

[00:26:09] Speaker 04:
And then, if I can't find out what it's doing, I go find it some other way.

[00:26:14] Speaker 04:
And even if I get to the dictionary, it seems like my colleagues

[00:26:26] Speaker 04:
opted for a definition which was the third or fourth definition, depending on the dictionary you're looking at.

[00:26:33] Speaker 01:
Well, it's because this is the record-keeping context, so you have to interpret maintain in the context of record-keeping.

[00:26:40] Speaker 01:
And in record-keeping context, you need accurate records, otherwise it's not a record of anything.

[00:26:45] Speaker 01:
So to maintain in that context means to keep up, to keep in a state of validity, to declare to be true.

[00:26:53] Speaker 01:
So when

[00:27:21] Speaker 01:
itself.

[00:27:24] Speaker 01:
And if I may briefly address the subsection 2B arguments that the defendant as chief engineer cannot be convicted.

[00:27:34] Speaker 01:
Under section 2B

[00:27:47] Speaker 01:
So if the defendant's bad intent causes the principal, or in this case, the captain, to violate a duty, that's an offense under Section 2B.

[00:28:00] Speaker 01:
And it's simply not true that, well, first of all, we don't think this is an act or this is not an admission case.

[00:28:07] Speaker 01:
The defendant knowingly caused the failure to maintain an affirmative fail.

[00:28:14] Speaker 01:
But this court has held that

[00:28:17] Speaker 01:
Omissions causing an omission is sufficient number to be it held this and United States versus Singh Which is 924 f3rd?

[00:28:25] Speaker 01:
1030 That case was overturned by the Supreme Court on

[00:29:06] Speaker 02:
Your Honors, the additional evidence that maintain was not intended to and does not mean make sure the record is accurate concerning prior entries are one.

[00:29:23] Speaker 02:
It makes no sense to say you only have to, under our law, make entries while you're here.

[00:29:41] Speaker 02:
accuracy of a record book kept on many of these vessels eight to ten floors lower on the vessel concerning operations of which he is not involved at a time when his navigational responsibilities are most important as he's approaching a port.

[00:29:58] Speaker 02:
Three, we detailed in our brief that these regulations, the verbiage came from old regulations that expressly didn't apply to foreign ships.

[00:30:13] Speaker 02:
didn't have this interpretation then.

[00:30:14] Speaker 02:
Five, the Coast Guard didn't adopt its interpreter, and the Environmental Crime Section of the DOJ didn't adopt their interpretation of the regulation for 20 years after the regulation was adopted.

[00:30:27] Speaker 02:
They prosecuted chief engineers and captains for presenting a record under 1001.

[00:30:35] Speaker 02:
And the Stardust, which the court asked me about earlier, found that the crime was aiding

[00:30:48] Speaker 02:
questions.

[00:30:50] Speaker 02:
Finally, the General Accounting Office under the Paperwork Reduction Act of, I think, 1984 gets an update from every agency every few years, what's the burden of your record-keeping requirements, and every single time the Coast Guard has submitted a record of its burden for its record-keeping requirements, it calculates how many hours it takes to complete

[00:31:16] Speaker 02:
All my best time.

[00:31:18] Speaker 02:
U.S.

[00:31:18] Speaker 02:
Ships.