{"id":12024,"date":"2019-12-01T04:36:56","date_gmt":"2019-12-01T04:36:56","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=12024"},"modified":"2020-07-02T00:46:58","modified_gmt":"2020-07-02T00:46:58","slug":"feds-seek-reimbursement-of-costs-to-salvage-grounded-fishing-vessel","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=12024","title":{"rendered":"Feds Seek Reimbursement of Costs To Salvage Grounded Fishing Vessel"},"content":{"rendered":"\n

The federal government is suing the\nowners of the Pacific Paradise <\/em>for at\nleast $1.66 million in an effort to recover\ncosts associated with removing the fishing\nvessel from the reef off Waikiki where it ran\naground in October 2017.\n<\/p>\n\n\n\n

The claim was filed in U.S. District Court in Honolulu on October 17, two years and a week to the day that the 79-foot longline vessel drifted onto the reef, carrying 20 individuals, nearly all of whom were foreigners being brought to Hawai\u2018i from American Samoa to work on other vessels in the Honolulu-based longline fleet. <\/p>\n\n\n\n

But whether any of this claim will be repaid, much less all of it, is not at all clear. <\/p>\n\n\n\n

For one thing, the company that owned\nPacific Paradise <\/em>appears to have no assets\nat this time. That company, TWOL,\nLLC, had owned two longline vessels,\nPacific Paradise <\/em>and Pacific Dragon<\/em>. Pacific\nParadise <\/em>was burned and damaged beyond\nrepair as a result of the grounding, and now\nsits on the seafloor some 13 miles offshore\nof O\u2018ahu.\n<\/p>\n\n\n\n

For another, the owners of TWOL \u2013 Loi\nChi Hang and Nguyen Ngoc Tran \u2013 were\ndetermined in another federal action settled\nlast August, to be virtually indigent. In\nthat case, involving significant violations\nof the Clean Water Act, civil penalties\nwere proposed totaling several hundred\nthousand dollars. After reviewing tax and\nother financial records of Hang, Tran, and\nTWOL, the Justice Department allowed\nthem to settle for a total of just $13,000.\n<\/p>\n\n\n\n

On February 15, 2018, barely two months after the Pacific Paradise <\/em>was sunk, Hang and Tran formed a new company, LNK Fishery, LLC, and transferred ownership of the Pacific Dragon <\/em>to this entity. That leaves TWOL without any apparent assets that could be attached to satisfy the Justice Department\u2019s claim. <\/p>\n\n\n\n

Oil Pollution Act Claims\n<\/strong><\/p>\n\n\n\n

The Oil Pollution Act of 1990 allows the government to recover any and all removal costs incurred by the Oil Spill Liability Trust Fund. In the case of the Pacific Paradise <\/em>grounding, the fund was tapped to pay for costs of removing the vessel from the reef. <\/p>\n\n\n\n

The contractor Resolve Marine undertook most of the removal efforts. The claim for its work comes to $902,350.17. All other claims are to reimburse the Coast Guard for contracts ($47,169.08), equipment ($282,453.31), personnel ($351,271.45), travel ($73,648.23) and civilian overtime ($475.93). In addition, the lawsuit says the government will seek to recover \u201cinterest, administrative and adjudicative costs, disbursements, and statutory attorneys\u2019 fees recoverable\u201d under the Oil Pollution Act. What\u2019s more, \u201cthe United States expressly reserves the right to amend this complaint to add … claims for natural resource damages.\u201d <\/p>\n\n\n\n

According to the claim, the lawsuit was filed only after demand for payment was made upon the defendants: \u201cThe United States has made demand upon Defendants for reimbursement for all the outstanding response costs and damages owed by Defendant as a result of the [Oil Pollution\nAct] Removal and Response Action, and\nsaid monies remain unpaid.\u201d\n<\/p>\n\n\n\n

The complaint also alleges that the defendants are in violation of the Federal Debt Collection Procedures Act. Instead of \u201cdischarging debts owed to the United States,\u201d the complaint says, defendants \u201ctransferred, sold, spun off, and assigned assets so as to prejudice and cause irreparable harm to the United States.\u201d <\/p>\n\n\n\n

The Response\n<\/strong><\/p>\n\n\n\n

On November 13, attorney Bryan Ho filed\nan answer to the complaint, which, he says,\n\u201cfails to state a claim or claims … upon\nwhich relief can be granted.\u201d\n<\/p>\n\n\n\n

If the Coast Guard \u201csustained any damages as alleged … which is denied, defendants are entitled to limit their liability\u201d under the Oil Pollution Act limits on liability, Ho claims. <\/p>\n\n\n\n

Ho also denies that Tran and Hang were\nvessel owners and argues that, in any event,\nthe government\u2019s claims are \u201ctime-barred by\nthe applicable statute of limitations.\u201d\n<\/p>\n\n\n\n

The government also proposes to fine the\nvessel master, Cong Van Nguyen, $5,000\nfor \u201coperating a vessel in a negligent manner\nso as to endanger life, limb, and property.\u201d\nNo filing on Nguyen\u2019s behalf was made by\npress time.\n<\/p>\n\n\n\n

A scheduling conference has been set\nfor December 16 before Magistrate Judge\nRom Trader.\n
<\/p>\n\n\n\n

The Clean Water Act\nViolations\n<\/h4>\n\n\n\n

A federal lawsuit alleging violations of the Clean Water Act was filed June 21, 2018, and concerned illegal discharges of oily bilge water from the Pacific Dragon <\/em>that occurred in early 2017. <\/p>\n\n\n\n

\u201cThe Elizabeth <\/em>has a history of violations of the Coast Guard\u2019s pollution control regulations,\u201d the Justice Department alleged early on in the complaint, although it does not provide any details of that history. <\/p>\n\n\n\n

\u201cLoi Hang and Nguyen Tran knew before December 1, 2016, that the Elizabeth\u201d <\/em>\u2013 now renamed the Pacific Dragon <\/em>\u2013 \u201clacked the equipment and capacity to retain oily mixtures generated while underway and that the Elizabeth <\/em>regularly discharged oil overboard during voyages,\u201d it went on to say. Nonetheless, it continued, they \u201cdirected the Elizabeth <\/em>to get underway for fishing voyages between December 1, 2016, and March 2, 2017.\u201d <\/p>\n\n\n\n

As described in the complaint, conditions in the vessel were not just in violation of federal law with respect to oily wastes, but unsanitary and unsafe as well: \u201cPathways for excess water to enter the engine room included a corroded and deteriorated metal bulkhead and a faulty shaft seal that allowed free flow of fluids between the engine room bilge and the fish hold. When ice melted in\nthe vessel\u2019s fish hold, water flowed through\nthe unsealed shaft fitting and other holes in\nthe bulkhead into the engine room bilge.\nBilge water containing oil waste and other\nbilge contaminants could also flow from the\nengine room into the fish hold.\u201d\n<\/p>\n\n\n\n

These were the conditions found when,\non March 2, 2017, a law enforcement team\nfrom the Coast Guard boarded the vessel as\nit was returning to port in Honolulu.\n<\/p>\n\n\n\n

\u201cTWOL LLC, Loi Hang, and Nguyen Tran are each liable for civil penalties of up to $46,192 per day of violation or $1,848 per barrel discharged\u201d under the Clean Water Act, the complaint noted. And if those violations are proved to be \u201cthe result of gross negligence or willful misconduct,\u201d the fines would rise to a minimum of $184,767, and up to $5,543 per barrel discharged. <\/p>\n\n\n\n

In addition, the Elizabeth <\/em>had no capacity to retain oily mixtures on board, making the defendants liable for penalties of up to $46,192 per day of violation, and it also did not display placards informing crew members of prohibitions on the discharge of oil in languages read by the crew and displayed in the engine room or ballast pump control stations. Rather, \u201cCoast Guard officers found a \u2018Discharge of Oil Prohibited\u2019 placard written in English and no other language affixed to the mess deck door…. [F]oreign crew members working aboard the Elizabeth <\/em>between December 1, 2016 and March 2, 2017, were unable to read English.\u201d <\/p>\n\n\n\n

A week after the complaint was filed, notice of a proposed consent decree was published in the Federal Register<\/em>. The defendants were to correct the violations identified in the lawsuit and pay a total of $13,000 in penalties. \u201cThe penalty amounts were set after considering each defendant\u2019s limited ability to pay a higher penalty, as demonstrated through documentation submitted to the United States and analyzed by a financial expert,\u201d the notice says. \u201cTWOL LLC must pay a civil penalty of $1,000; Mr. Hang must pay a civil penalty of $8,000; and Mr. Tran must pay a civil penalty of $5,000.\u201d <\/p>\n\n\n\n

Tran and Hang are listed on the state\nDepartment of Commerce and Consumer\nAffairs website as principals of two\ncompanies that hold longline permits.\nThey are the sole members of LNK, LLC,\nwhich owns the Pacific Dragon<\/em>. And they\nare listed as directors of Lady Karen, Inc.,\nwhich owns the Lady Karen II.\n<\/em><\/p>\n\n\n\n

\u2014 Patricia Tummons\n<\/strong><\/p>\n\n\n\n


<\/p>\n","protected":false},"excerpt":{"rendered":"

The federal government is suing the owners of the Pacific Paradise for at least $1.66 million in an effort to recover costs associated with removing the fishing vessel from the reef off Waikiki where it ran aground in October 2017. … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":12025,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[461,8],"tags":[7],"class_list":["post-12024","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-december-2019","category-fisheries","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12024","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12024"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/12024\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/12025"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12024"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12024"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12024"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}