UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-2443 D.C. No. Plaintiff - Appellee, 3:22-cr-02762- TWR-1 v. DENYS KOROTKIY, OPINION

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding

Argued and Submitted May 16, 2024 Pasadena, California

Filed October 10, 2024 Before: N. Randy Smith and Salvador Mendoza, Jr., Circuit Judges, and John Charles Hinderaker, District Judge. *

Opinion by Judge Mendoza; Dissent by Judge N. Randy Smith * The Honorable John Charles Hinderaker, United States District Judge for the District of Arizona, sitting by designation. 2 USA V. KOROTKIY

SUMMARY **

Criminal Law

The panel affirmed the district court’s order denying Denys Korotkiy’s motion to dismiss a count charging him under 33 U.S.C. § 1908 with violating 33 C.F.R. § 151.25 (2023), a regulation that requires shipmasters to, among other things, maintain a record of certain bilge-water operations while in U.S. waters. Under international and federal law, it is unlawful to dump the polluted water that collects in a boat’s bottom— otherwise known as “oily bilge water”—while at sea. The same laws require ships to log their bilge-water operations in an Oil Record Book. Korotkiy, the Chief Engineer of a foreign-flagged ship, along with the crew, flouted those laws by dumping oily bilge water on the high seas and covering it up with misleading entries in the ship’s Oil Record Book. Korotkiy argued (1) § 151.25 does not require crewmembers to maintain substantively “accurate” records in Oil Record Books; (2) neither Congress nor the international community intended for such prosecutions to occur; and (3) only ship masters, and not chief engineers, should be charged for violations of § 151.25. Joining four other circuits, the panel held that § 151.25’s plain language proscribes Korotkiy’s conduct. The regulation imposes a duty upon a foreign-flagged vessel to ensure that the record in its Oil Record Book is accurate (or ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. KOROTKIY 3

at least not knowingly inaccurate) upon entering the United States’ territorial waters. Korotkiy’s reading of “maintain” as entailing exclusively “preservation” is inconsistent with § 151.25’s other provisions; the panel’s interpretation of the “maintenance” requirement is consistent with the term’s place in the overall statutory scheme and with the legislative purpose of the Act to Prevent Pollution from Ships (APPS), pursuant to which Congress delegated to the United States Coast Guard the authority to prescribe regulations to carry out the provisions of the 1973 International Convention for the Prevention of Pollution from Ships and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships (collectively, MARPOL). The panel rejected Korotkiy’s alternative argument that because he is not a “shipmaster” he is not bound by § 151.25’s maintenance requirement. Courts uniformly agree that chief engineers can be prosecuted, as Korotkiy was, for aiding and abetting the failure to maintain an accurate record book. Judge N.R. Smith dissented. He wrote that ordinary meaning, usage in related provisions, the language of MARPOL, and the MARPOL-focused purpose of APPS all support interpreting “mainta