The April 1st, 2011 article in the New York Times, titled "2 Rig Firm Workers Decline To Appear

At Oil Spill Inquiry" has many people questioning how it is that the order to testify can be ignored — not only by Transocean employees, but as you will remember, by BP staffers as well. The Times is quoted as saying: "Two employees of Transocean are refusing to appear before a federal panel investigating last year’s Deepwater Horizon blowout and oil spill, federal officials and lawyers for the company and its employees said on Friday. The inquiry, jointly conducted by the Coast Guard and the Bureau of Ocean Energy Management, Regulation and Enforcement, is holding hearings in New Orleans next week on the failure of the subsea blowout preventer to contain the explosive oil and gas that led to the accident, which killed 11 workers and bled nearly five million barrels of oil into the Gulf of Mexico." And therein the problem lies..."the inquiry, jointly conducted by the Coast Guard and the Bureau of Ocean Energy Management, Regulation and Enforcement..." Under normal circumstances, criminal investigations are normally conducted through the US Justice Department, the highest arm of regulation and investigation in the United States. You'll note that this is an "inquiry" only - one being conducted by two agencies who do NOT hold the authority to compel by force the testimony of anyone basically, who doesn't want to testify. How can this be? In the 70's an international convention was held which resulted in the formulation and inception of Marpol, an internationally agreed upon organization that set forth standards to help prevent ocean pollution from ships. This was borne out of incidents occurring in international waters that had gross environmental impact to coastlines and countries, sea life and the environment. Environmentalists as well as industry were quick to support MARPOL and it has long been regarded as one of the initial regulatory steps taken to help protected the oceans on a global platform. From "Marine Log" "In recent years, observers have questioned whether MARPOL 73/78 is destined to become a legal relic, irrelevant to the culture of modern environmentalism. After the sinking of the Prestige, certain European coastal states took unilateral action, patrolling the high seas for suspect single-hull tankers. Regulations governing the choice of hull type of internationally trading oil tankers went into effect."

From Wikipedia: "Marpol 73/78 is the International Convention for the Prevention of Pollution From Ships, 1973 as modified by the Protocol of 1978. ("Marpol" is short for marine pollution and 73/78 short for the years 1973 and 1978.). Marpol 73/78 is one of the most important international marine environmental conventions. It was designed to minimize pollution of the seas, including dumping, oil and exhaust pollution. Its stated object is: to preserve the marine environment through the complete elimination of pollution by oil and other harmful substances and the minimization of accidental discharge of such substances. The original MARPOL Convention was signed on 17 February 1973, but did not come into force. The current Convention is a combination of 1973 Convention and the 1978 Protocol. It entered into force on 2 October 1983. As of 31 December 2005, 136 countries, representing 98% of the world's shipping tonnage, are parties to the Convention. All ships flagged under countries that are signatories to MARPOL are subject to its requirements, regardless of where they sail, and member nations are responsible for vessels registered under their respective nationalities." Attorney George M. Chalos, Esq. of the U.S. law firm: Chalos & Co., P.C. has written a timely piece titled "Suspected Marpol Violations in the U.S. - The Human Cost" which helps to better understand not only the Marpol Convention - but also the reasoning behind why BP and Transocean employees are not compelled to testify in the inquiry regarding the BP Gulf Oil Disaster. To quote attorney Chalos: "It is well known throughout the global maritime industry that the U.S. Coast Guard has undertaken a comprehensive program of boarding foreign flag-state vessels calling U.S. ports. As a result of the new heightened security measures, there has been a significant increase in the scrutiny in which vessels, and its records/logs, are being inspected, and consequently, a rash of vessel and/or crew detentions. Similarly, it has been highly publicized that the U.S. Coast Guard has established a 'Oily Water Separation Systems Task Force' (OWSSTF), to investigate and prosecute suspected MARPOL violations. U.S. and International authorities have made it clear that they have, and will continue to, seek jail sentences for Masters, Chief Engineers and other crew members of ships found guilty of committing pollution offenses. Many times, even if no pollution incident has occurred, the Coast Guard and U.S. prosecutors will commence a Grand Jury investigation seeking to prosecute suspected illegal activities (i.e. possible Marpol violations, presentation of false records and/or obstruction of justice charges). The U.S. authorities have successfully prosecuted numerous commercial vessel operators, cruise line operators, captains, chief engineers and other engine room personnel of illegal bypassing of the oily water separation system and the presentation of an Oil Record Book containing "false entries."

The credibility of the US Coast Guard historically has caused suspicion on the part of many who follow the prosecution of many of the alleged "violations" prosecuted by the U.S. Government, and this same suspicion breaks the trust of those who uphold and abide by the laws of Marpol. Chalos further cites: "During the U.S. authorities investigation of a suspected Marpol violation, officers, crewmembers, and various shoreside employees may be contacted by the US prosecution team, including but not limited to representatives of the U.S. Department of Justice, the Coast Guard, the FBI, the Environmental Protection Agency or other government agencies. It is imperative that all seafarer's and shoreside personnel involved in such a matter know their rights under U.S. law!" Additionally: "In the U.S every person has the right to representation by a lawyer. The most basic, yet essential, advice any lawyer can give to today's mariner is: seek the advice of counsel as soon as practical, and always be truthful and forthright in your dealings with the U.S. authorities. If U.S. authorities undertake any onboard investigation, which goes beyond the scope of the ordinary port state control inspection, the Owner and/or its' P&I Club should be immediately contacted and advised of the situation. Similarly, criminal counsel should be engaged immediately to protect the rights of the vessel officers and crew, as well as her owner, operator and/or manager. All of the individual crewmembers should invoke their Fifth Amendment privilege against self-incrimination until competent counsel is engaged and present. In short, once a criminal investigation has commenced and a mariner invokes his own Fifth Amendment privilege, he/she is not required to speak with the U.S. authorities and/or respond to any of their questions, which may lead to self-incrimination. As a wise, old mariner once said: "The only fish that get caught are the ones with their mouth open." "Knowledge" is, indeed, "power," and today's mariner must be aware of his Fifth Amendment privileges when calling U.S. ports." THAT IS CORRECT - THEY ARE NOT LEGALLY BOUND TO TESTIFY TO THE U.S. COAST GUARD. U.S. Law itself provides for this in the Fifth Amendment: "Legally speaking, the Fifth Amendment Privilege against self-incrimination is not dependent upon the nature of the proceeding in which the testimony is sought. It is applicable wherever the answer might tend to subject one to criminal responsibility and applies in both civil and criminal proceedings. Lowe's of Roanoke, Inc. vs. Jefferson Standard Life Ins. Co., 219 F. Supp. 181 (S.D.N.Y., 1963); McCarthy vs. Arndstein, 266 U.S. 34 (1924).1" When the United States and the Administration and leadership of our country finally decide to begin treating the BP Oil Disaster as a CRIMINAL CASE, as it should have

been all along, perhaps then - and only then, will the subpoena and testimony of BP, Transocean, and all other parties and individuals involved with the worst environmental crime of our country’s history be properly charged with the crime they have committed. Given the severity of the environmental, ecological, economical, health, and human destruction that has occurred as a result of BP's "spill", the remedy for the damage caused will not be felt for generations to come, and in many cases, can never be repaired. The least we, as the generation responsible to making certain that history appropriately records the correct and proper prosecution of those responsible, owe it to those who will inherit this earth to do the best we can to make certain that all parties responsible are held responsible, and that history records that we did everything within our power to make certain that it was, and that disasters of the magnitude can never be repeated again. References:

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