Six foreign sailors who were forced to remain in San Diego for more than a year as witnesses to potential environmental crimes aboard a cargo ship have been allowed to return home after testifying last week in the federal trial of the ship's chief engineer, who was convicted by a jury on three charges.
The sailors have been kept in San Diego since May 31, 2022, and were accused of no wrongdoing. But as potential witnesses to crimes aboard the cargo ship MV Donald, the federal government took away their passports, and a judge ordered that they remain here until the defendant pleaded guilty or went to trial.
On Tuesday afternoon, the same judge signed an order essentially releasing them and allowing them to return home, a process that was expected to happen almost immediately.
Their situation highlighted a legal mechanism in maritime law that allows the U.S. government to hold foreign witnesses in the U.S. for long stretches, sometimes even for months before criminal charges are ever filed. The witnesses in this case — five Filipino crew members and the ship's Ukrainian captain — had no say in the agreement made between the U.S. Coast Guard and the MV Donald's operating company. However, the Filipino crew members, who testified for the government, stand to benefit as they could be in line for whistleblower compensation.
Last week, all six of the sailors testified at the trial of 40-year-old Russian citizen Denys Korotkiy, the MV Donald's chief engineer, with the captain testifying in his defense. The five-day trial ended Friday with the jury convicting Korotkiy on two of three counts related to obstructing justice, acquitting him on the other count. They also convicted him of failing to maintain an accurate oil record book — a largely technical charge that can sometimes allow the U.S. government to prosecute those who pollute international waters.
In this case, the government alleged Korotkiy had ordered crew members to pump oily bilge water directly into the ocean rather than running it through a filtration system — an act that the U.S. Attorney's Office claimed in a similar previous case accounts for about 37 percent of worldwide ocean oil pollution. The government also alleged Korotkiy conspired with officials from the ship's operating company to cover up such conduct after they learned that a crew member had blown the whistle to the Coast Guard in late May last year as the ship was about to arrive at port in San Diego.
Last month, about a week before Korotkiy's trial was set to begin, the MV Donald's German operating company, Interunity Management GMBH, pleaded guilty to a count of failure to maintain an accurate oil record book and agreed to pay $1.25 million in fines.
According to that plea agreement, $312,500 will be a community service payment to the National Fish and Wildlife Foundation, which has agreed to use the money to fund projects or initiatives that benefit marine and coastal natural resources in and around the Tijuana River National Estuarine Research Reserve.
The other $937,500 is a criminal fine, according to the plea agreement. Assistant U.S. Attorney Melanie Pierson said that according to the whistleblower provision in the federal law under which the case was prosecuted, half of that money could be split between the ship's five crew members who testified for the government.
All six of the witnesses — as well as Korotkiy — had been ordered off the ship last May after it sailed into port in San Diego and the Coast Guard launched an investigation based on the whistleblower complaint. The ship, without the witnesses and the suspect, was allowed to leave about a week later after its operating company paid a $1.1 million surety bond.
For months, the witnesses idled in San Diego, bouncing around hotel rooms paid for by the ship's parent company, but with no word of charges being filed. The crew members eventually settled in a shared rental home in Vista, and in November they filed an emergency petition asking a judge to allow them to participate in depositions and go home to their families. They called their continued presence in the San Diego area unjust and a de facto form of detention.
The petition, which the Ukrainian captain also later joined, forced the government's hand to speed up the process. Two days after it was filed, prosecutors filed a criminal complaint against Korotkiy, who was later indicted. But prosecutors opposed the witnesses' petition, and a magistrate judge ruled they were not entitled to give depositions and leave the country since they were not detained.
At least three crew members have not been home to the Philippines since they joined the MV Donald's crew in late 2021. All three were expecting to return home last summer before they were pulled off the ship, including an oiler who wrote in the petition last year that he had not yet met his first child, born in January 2022.
The ship's captain wrote in his petition that he's been away from his home in the Ukrainian frontline city of Kherson during the entirety of Russia's war, which had forced his family to flee to other countries.
On Tuesday, prosecutors and attorneys for the witnesses filed a joint motion requesting that a judge allow the men to return home, writing that the "ship's owner and operator remain on standby to make immediate travel arrangements." The judge obliged with a signed order.
Korotkiy faces up to 21 months in prison when he's sentenced in September.
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