Case 1:13-cr DLG Document 12 Entered on FLSD Docket 06/25/2013 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

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1 Case 1:13-cr DLG Document 12 Entered on FLSD Docket 06/25/2013 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO cr-GM HAM/GOODM A N UNITED STATES OF AMERICA, VS. AM BER EXPRESS CARG O, lnc., Defendant. / PLEA AGREEMENT Theunited States ofamericaandam BER EXPRESS CARGO,INC., (hereinaherreferred to as the ûidefendant' or IGAEC') enter into the folowing agreement: A. FACTUAL PROFFER The defendant and the United States agree that the United States could prove the following facts beyond a reasonable doubt: a. The M otor Vessel (M/I?) Amber Express is a 229-foot, 499-ton cargo vessel that is registered in Panama and hom e ported in M iam i, Florida. The M/vzqmber Express is registered in the Republic of Panam a under International M aritim e Organization Num ber b. Defendant is a cargo shipping com pany with a principal place of business of 606 AberdeenAvenue, Hamilton, Ontario, CanadaL8P2T1. Defendanthas owned and operatedthem/pr Amber Express since October Defendant also owns and operates the M/V Sheley Express, another cargo vessel. A hm ed Sam ee is the principal owner of A EC. The United States is party to an international regim e that regulates the discharge of Page 1

2 Case 1:13-cr DLG Document 12 Entered on FLSD Docket 06/25/2013 Page 2 of 10 oi1 from vessels at sea: the lntem ational Convention for the Prevention from Polution from Ships, as modified by the Protocol of 1978, also known as GûM ARPOL.' M ARPOL is em bodied in numerous intem ational agreem ents that the United States has ratifieds and has been legislatively implemented in the United States by the Act to Prevent Polution from Ships (i:apps'), 33 U.S.C. jj 1901 et seq. APPS makes it a crime for any person to knowingly violate M ARPOL, APPS, or regulations promulgated tmder APPS. 33 U.S.C. j1908(a). These regulations apply to the M/V Amber Express. On or aboutn ovember 20, 2012, the M/vAmber Express departed M iragoane, Haiti d. en route to M iam i, Florida, where it arrived at Port of M iami on N ovem ber 24, The M/V Amber Express had an Engine Departm ent headed by a Chief Engineer, assisted by a Second Engineer. The Engineers were assisted by another crew mem ber refen'ed to in the industry as an 'Oi1er.' The Chief Engineer had overall responsibility for the operations of the Engine Department, including the supervision of daily operations, formulation and im plementation of Engine Department procedures, and verification that a1l system s, including a pollution prevention control device known as an Oi1 W ater Separator, were functioning properly. The operation of large marine vessels like the M/vAmber Express generates large quantities of oily sludge and oily waste water. Oily sludge is generated during the process of purifying fuel oil, lubricating oil, and other petroleum products so that these products can be used in the engines on board the vessel. The oily sludge generated as a result of this process must be stored on board the vessel in sludge tanks until it is either burned on board the vessel through the use of an incinerator or auxiliary boiler or offloaded onto shore-side facilities for disposal. Engine department operations generate large quantities of waste oil due to leaks and drips from this Page 2

3 Case 1:13-cr DLG Document 12 Entered on FLSD Docket 06/25/2013 Page 3 of 10 purification process and the engines' lubrication and fuel system s. This waste oi1 combines with water, detergents, solvents, and other wastes that accumulate in the botom or the 'bilges' of the vessel to fonn oily waste water. This oi1 contaminated bilge waste m ust be colected, stored and then processed to separate the water from the oil and other wastes using the Oil W ater Separator. A fter passing through the O il W ater Separator, engineering space oily waste water containing less than fifteen (15) parts per million of oi1 may be discharged overboard. g. At al1 relevant times, the engine spaces of the M/V AM BER EXPRESS were configured so that the ship's bilge could be piped directly into the ship's Oi1 W ater Separator for purification or directly overboard into the ocean without puritk ation. On or about Novem ber 22, 2012, while the vessel was at sea en route to M iami, h. Florida, the Chief Engineer of the M/vAmber Express directed the Second Engineer to bypass the Oil W ater Separator to discharge oil contam inated bilge from the well in the m ain engine room directly overboard. The Second Engineer bypassed the Oil W ater Separator as directed for approximately 45 minutes through the starboard overboard discharge pipe. After discharging oi1 contaminated bilge from the vessel, the Second Engineer tlushed the system with sea water, again at the direction of the Chief Engineer, in an attempt to conceal evidence of the discharge. Despite this, dtlring a port state control exam ination on December 17, 2012, United States Coast Guardpersonnel collected an oil sample from the starboard overboard discharge pipe from which the bilge spilled into the ocean. The United States Coast Guard M arine Safety Laboratory com pared the oil sam ple taken from the discharge pipe to a sam ple Page 3

4 Case 1:13-cr DLG Document 12 Entered on FLSD Docket 06/25/2013 Page 4 of 10 taken from the bilge wel in the m ain engine room, and concluded that each sam ple contained oil from the snm e source. During the Coast Guard's D ecember 17, 2012, port state control examination, inspectors also noted that the Oi1 W ater Separator onboard the M/V Amber Express was not functioning. The crew of the M/vAmber Express was not conducting the maintenance outlined in the Oil W ater Separator Operations and lnstruction M anual. Indeed, the crew did not have a copy of the manual onboard the ship. Defendant also failed to supply the ship with the pal'ts necessary to repair, m aintain, and operate the Oil W ater Separator, despite requests for same from the crew. The Coast Guard inspectors also examined the M/vAmber Express 's Oi1 Record Book. The Oi1 Record Book did not contain any entries reflecting the overboard discharge of bilge on November 22, The Oi1 Record Book also confinned that the ship's Oil W ater Separator had been in need of repair since Decem ber 27, lndeed, between August 21, 2012 and November 24, 2012, during which time the vessel twice visited Port of M iam i, there were no entries for usage of the Oi1 W ater Separator, no entries for accidental discharges, no entries for em ergency discharges, and no entries for offloads to shore facilities equipped to receive and handle bilge and sludge. By contrast, the Oi1 record Book revealed that between Februaly 20, and August 20, 2012, when the vessel visited Port of M iam i twice, it oftloaded 1,075 gallons of bilge and sludge. B. TERM S OF THE AGREEMENT 2. The defendant agrees to plead guilty to the Information, which charges the defendant with failure to maintain an accurate Oi1 Record Book, in violation of 33 U.S.C. j 1908(a). The elements of this ofense are: Page 4

5 Case 1:13-cr DLG Document 12 Entered on FLSD Docket 06/25/2013 Page 5 of 10 a. That the M/vAmber Express was a ship of 400 gross tons and above other than an b. oil tanker, That the Defendant's employees failed to m aintain an accurate Oil Record Book, That this failure to m aintain an accurate Oil Record Book occun'ed at a port or place of the United States; d. That the Defendant's employees acted knowingly; That each of the acts com mitted by the employee of the corporation were within the course and scope of the employment or agency given to the employee by the Defendant, and That the employee of the Defendant comm ited each of the essential elements of the offense, motivated at least in part, by an intent on the part of the employee to benetit the Defendant. The defendant understands and acknowledges thatthe Courtm ay im pose aterm of probation of not less than one year and not m ore than five years for the lone count of the infonnation. The parties agree, although not binding on the court, they wil jointly recommend the folowing speeial conditions of probation: a. That the defendant complies with the Environmental Compliance Plan ('ECP') that is contained in A tachm ent A to this Plea Agreem ent. The defendant understands and agrees that the ECP shal apply to the two subject vessels listed in the ECP. The ECP wil be binding on the M/V AMBER EXPRESS and the M/V SHEL L J' EXPRESS so long as these vessels are owned by the defendant, or remain under the ownership or technical m anagem ent of the defendant or its principals. lf any Page 5

6 Case 1:13-cr DLG Document 12 Entered on FLSD Docket 06/25/2013 Page 6 of 10 of the vessels is sold to a third party as a result of an ann's length transaction and the defendant no longer oversees their operation or marine managem ent, that vessel wil be relieved from the ECP. b. The defendant understands and agrees that the ECP shall last until the earlier of 1) the defendant's satisfaction of the ECP, 2) the end of the defendant's period of probation, or 3) the sale of the vessels to a third party and tennination of the defendant's m arine m anagem ent of the vessel. The defendant further agrees and understands that, in additionto seeking revocation or modification of the defendant's probation pursuant to 18 U.S.C. j3565, the Office reserves the right to prosecute the defendant if AM BER EXPRESS CARGO, INC. fails to com plete the ECP. That the defendant purchase and place a half-page notice in Florida Shipper magazine within 60 days of the date of sentencing. The notice will contain no words or representations other than those agreed to in this plea agreem ent. The advertisement wil state: On June 25, 2013, AM BER EXPRESS CARGO, IN C. pled guilty in the United States District Court for the Southern District of Florida to a felony count of maintaining aninaccurate Oil Record Book related to illegal discharges of bilge from the cargo freighter Am ber Express, in violation of the Act to Prevent Pollution from Ships, Title 33, United States Code, Section 1908(a). The M/V Amber Express was om zed and operated by AM BER EXPRESS CARGO, m C. at the tim e of the ilegal overboard discharges of bilge and the false entries in the Oi1 Record Book. Ahm ed Samee isthe owner of AM BER EXPRESS CARGO, IN C. M r. Sam ee wishes to express his profound regret for this action and a shared com m itm ent to ensuring that ilegal discharges of hazardous po lutants and illegal record keeping never happen again from any vessel in the A M BER EX PRESS CARGO, IN C. tleet. ln addition to a term of probation, the court may impose a fine of up to $500,000, or twice Page 6

7 Case 1:13-cr DLG Document 12 Entered on FLSD Docket 06/25/2013 Page 7 of 10 the gross gain or loss per count. 6. The defendant is aware and tmderstands that the court is perm ited to tailor the ultim ate sentence in light of other statutory concerns. Knowing this, the defendant understands and acknowledges that the cottrt has the authority to impose any sentence within and up to the statutory maximum authorized by law for the offense identified in paragraph 2, and that the defendant may not withdraw the plea solely as a result of the sentence im posed. The defendant further understands and acknowledges that, in addition to any sentence imposed underparagraphs 4 and 6 of this agreem ent, a special assessm ent inthe am ount of $400 wil be imposed on the defendant for each count of conviction. The defendant agrees that any special assessment imposed shal be paid at the tim e of sentencing. 8. The Oftke of the United States Attorney for the Southern Distrid of Florida (hereinafter çloffice'l reserves the right to infonn the eourt and the probation office of all facts pertinent to the sentencing process, including al1 relevant information concerning the offenses comm ited, whether charged or not, as well as concerning the defendant and the defendant's background. Subject only to the express term s of any agreed-upon sentencing recom mendations contained in this agreem ent, this Oftk e further reserves the right to make any recomm endation as to the quality and quantity of punishm ent. 9. The defendant is aware that the sentence has not yet been determined by the court. The defendant also is aw are that any estimate of the probable sentencing range or sentence that the defendant m ay receive, whetherthat estimate comes from the defendant's atorney, the governm ent, or the probation office, is a prediction, not a prom ise, and is not binding on the government, the probation office or the court. The defendant understands further that any recom mendation that the Page 7

8 Case 1:13-cr DLG Document 12 Entered on FLSD Docket 06/25/2013 Page 8 of 10 governm ent m akes to the court as to sentencing, whether pursuant to this agreement or otherwise, is not binding on the court and the court may disregard the recomm endation in its entirety. The defendant understands and acknowledges, as previously acknowledged in paragraph 2 above, that the defendant m ay not withdraw his plea based upon the court's decision not to accept a sentencing recommendation made by the defendant, the government, or a recommendation made jointly by both the defendant and the governm ent. 10. The defendant agrees that it wil provide to the United States writen evidence in the form of a certifiedresolution by the Board of Directors, certifying thatthe defendant is authorized to plead guilty to the charges as set forth in the lnfonnation, and to enter into and com ply with al provisions of this agreement. The resolution shal further certify that the designated corporate representative, Ahmed Samee, President of AM BER EXPRESS CARGO, INC. is authorized to take these actions andthat a1l corporate formalities required for such authorization have been observed. The defendant agrees to have the designated representative act on its behalf in these criminal proceedings, appear on the defendant's behalf to enter the guilty plea, and to appear for the imposition of sentenee. Defendant further agrees that he will not seek the discharge of any obligationto pay a fine im posed in this case, in whole or in part, in any present or future bankruptcy proceeding. Defendant further agrees to grant the United States an assignm ent of income, liquidate assets, or complete any other tasks which wil result in imm ediate payment in 111, or paym ent in the shortest tim e in which ful pam ent can be reasonably made. Defendant agrees not to oppose or object to any efforts undertaken by the United States to secure Defendant's payment of any fine, restitution, assessm ent orother financial obligation imposed aspartof Defendant's sentence. Such efforts m ay include, but are not lim ited to, a levy by the United States upon the property located at Allegheny Avenue, Page 8

9 Case 1:13-cr DLG Document 12 Entered on FLSD Docket 06/25/2013 Page 9 of 10 Glassport, Pennsylvania, pursuant to a writ of execution issued tmder the Federal Debt Collections Procedures Act, 28 U.S.C. j3203, and the appointment of a receiver to sel said property to satisfy the United States' lien and/or fine. 12. ln the event the defendant withdraws from this agreem ent prior to or after pleading guilty to the charges identified in paragraph two (2) above, or otherwise fails to fully comply with any of the tenns of this plea agreem ent, this Office wil be released from its obligations under this agreem ent, and the defendant agrees and understands that the det-endant thereby waives any protection afforded by any proffer letter agreem ents between the parties, Section 1B1.8 of the Sentencing Guidelines, Rule 11(9 of the Federal Rules of Criminal Procedtlre, and Rule 410 of the Federal Rules of Evidence, and that the facts set forth in paragraphs 1(a) through and including 1(k) wil be adm issible against the defendant without any lim itation in any civil or criminal proceeding brought by the governm ent. The defendant stipulates to the admissibility, in any case brought by the United States in any way related to the facts in this agreement, of the entire factual basis set forth in paragraphslta) through and ineluding 1(k) as being the defendant's own statement. The defendant voluntarily and knowingly adopts this factual basis as a post-plea discussion statem ent that is not protected by Federal Rule of Criminal Procedure 11(6) or Federal Rule of Evidence The defendant is aware that Title 18, United States Code, Section 3742 affords the defendant the right to appeal the sentence im posed in this case. Acknowledging this, in exchange for the undertakings m ade bythe United States inthispleaagreem ent,the defendanthereby waives all rights conferred by Section 3742 to appeal any sentenee im posed, including any restitution order, or to appeal the m anner in which the sentence was imposed, tmless the sentence exceeds the maximum permited by statute or is the result of an upward departzre from the guideline range that the coul't Page 9

10 Case 1:13-cr DLG Document 12 Entered on FLSD Docket 06/25/2013 Page 10 of 10 establishes at sentencing. The defendant further tmderstands that nothing in this agreement shall affect the government's right and/or duty to appeal as set forth in Title 18, United States Code, Section 3742(b). However, if the United States appeals the defendant's sentence pursuant to Section 3742(18, the defendant shall be released from the above waiver of appellate rights. By signing this agreement, the defendant acknowledges thathe has discussed the appeal and colateral atack waiver set forth in this agreem ent with his atonaey. The defendant further agrees, together with the United States, to request that the district court enter a specific finding that the defendant's waiver of his right to appeal the conviction or sentence to be im posed in this case was knowing and voluntary. This is the entire agreem ent and understanding between the United States and the defendant. There are no other agreem ents, prom ises, representations, or understandings unless contained in a leter from the United States A torney's Office executedby a1l parties and counsel priorto the change of plea. W IFREDO A. FERRER UNITED RNEY SOUTH ISTRI OF FLORIDA Date:(p- zs-- ( rs Date:C - W - $ 1 Date:$' - kzy - y j By: - ' ALEJ DRO 0. SOTO ASSIS T UNITED STATES ATTORNEY By:. ROB T AMSEL COUN S FOR DEFENDANT AMBER E RG s INC. By: AMB R EXPRESS CARGO, INC. DEFENDANT Page 10