The lessons after the blame games and legal gambits
By Sumudu Chamara
The Singapore-flagged container ship MV X-Press Pearl caught fire on 20 May off the western coast of Sri Lanka, and even though the authorities managed to extinguish the fire, the ship has since mostly sunk while throwing into the ocean its hazardous cargo of containers.
What followed was one of the biggest disasters in recent memory, and the chemicals, chemical products, and pieces of plastics the ship was carrying were released to the Sri Lankan waters, causing massive damage to Sri Lanka’s marine and coastal environments. As social media platforms were flooded with photos and videos of the damages the said substances had caused, environmentalists started raising awareness and expressing strong opposition in that connection. Also, it became an internal issue when the beaches were polluted due to the said substances and the people started collecting the debris of the ship. Consequently, the law enforcement authorities had to take action to stop it, as some of the debris was considered highly toxic.
This is not the first such incident Sri Lanka faced in the recent past; last year, a ship named MT New Diamond caught fire off the eastern coast of the country, also causing damage to Sri Lanka’s marine and coastal environments. In light of the two incidents within a period of several months, there is now a discourse among a multitude of parties about the manner in which Sri Lanka handled the two situations, and they are wondering how equipped Sri Lanka is to handle such situations.
In light of the major national furore this incident has caused, today’s Spotlight looks into its status quo.
Following this incident, emphasising the importance of taking proper measures to obtain adequate compensation for the damages caused to the environment and the expenses borne by Sri Lanka to douse the fire, leading environmental organisation Centre for Environmental Justice (CEJ) filed a fundamental rights (FR) petition in the Supreme Court.
Speaking to The Morning, CEJ Chairman Attorney-at-Law Ravindranath Dabare said that Sri Lanka has a number of legal provisions to obtain compensation from those responsible. He, however, added that identifying every responsible party is also of great importance.
Speaking of the said petition, Dabare added: “This FR petition was filed because some public officials and even ministers have claimed that there is a certain uncertainty regarding obtaining compensation for the damages caused due to the fire aboard the ship. We are very confident that there can be no such uncertainty because Sri Lanka has adequate legal provisions and reasons to obtain compensation. Investigations are underway to ascertain whether there were faults on the part of the ship crew, the ship owners, or the Government, and one of our requests is that a comprehensive and an impartial investigation be conducted into the incident, and that the responsible persons be penalised after the investigation. Also, we intend to present to the court and all the relevant parties, the alternative methods that can be employed to obtain compensation.”
Noting that action should also be taken to ensure the proper management of compensation, especially with the aim of using it to rebuild the environment, he added: “In addition, we have sought a court order demanding that the Government utilise the compensation Sri Lanka receives exclusively to deal with the damages this incident caused to the environment, and that the compensation received should not be utilised for any other purpose. Also, we sought court orders for the appointment of special committees comprising experts in various fields, in order to estimate the damages caused to various sectors. For example, a marine scientist is not equipped to estimate the damages caused to the atmosphere, and therefore, it calls for a special team of experts. The damages caused to the marine ecosystems should be evaluated by another special team. We request that these teams be entrusted with the task of estimating the nature of the damages and to determine the amount of the compensation.”
“Also, we request that compensation for each affected sector be obtained separately and that a transparent mechanism be devised which includes maintaining separate bank accounts for each sector. In addition, through this petition, we request that orders be issued to prevent any shortcomings, irregularities, and obstructions during this process, and also order to ensure the accurate calculation of the due compensation. By the time we filed the petition, the Government had not taken satisfactory steps to deal with the situation; however, now we see that the Government has appointed various groups to take the necessary steps including investigating the impacts of the incident. But we feel that it is not sufficient and that immediate actions should be taken. We have not reached any agreement regarding whether the ship’s owners accept the responsibility for what happened, and there are several such matters with regard to which we see a delay. Also, filing a criminal case in the High Court in this connection should be done, because it is after doing so that we can obtain court orders to take further action.”
Dabare also explained that there are misconceptions about the applicability of the existing legal provisions to obtain compensation. “Whether there are inadequacies or not, there are a number of other legal provisions in the Sri Lankan law that makes it possible to obtain compensation for the damages the incident caused. For example, the concept known as ‘polluter pays’ is a part of our country’s law, and whether we obtain compensation under the Marine Pollution Prevention Act or another law is not actually relevant. There is another special concept called ‘precautionary measures’ which has been recognised by courts, and that concept too can be used to obtain compensation. In addition, there are several other special legal provisions that can be used in the process of obtaining compensation. There are legal provisions under the Coast Conservation Act to obtain compensation for the damages caused to the coast, the Fisheries and Aquatic Resources Act to obtain compensation for the damages caused to the aquatic resources, and the National Environmental Act to obtain compensation for the air pollution caused due to the smoke.”
Meanwhile, former Fisheries State Minister and incumbent Samagi Jana Balawegaya (SJB) Parliamentarian Dilip Wedaarachchi, speaking of the process of obtaining compensation, said that the Government’s approach should be changed.
He explained: “When I raised this issue in Parliament on 8 June, it was stated that each relevant ministry would set up committees to present their suggestions to the shipping firm and the insurance company to get compensation. But that sort of approach would not help Sri Lanka obtain compensation, and therefore, I suggested that all these committees be amalgamated and that a skilful international representative be appointed to put forward the suggestions of these institutions. If the ministries engage in this process, Sri Lanka might lose compensation.”
Maritime laws, policies
According to some who have been vocal about Sri Lanka’s existing maritime laws and policies in light of this incident, Sri Lanka should pay attention to strengthening those laws and policies, in order to prevent difficulties Sri Lanka may face in the future in the event of similar incidents. Strong laws and policies are beneficial in not only getting compensation but also in safeguarding the country’s shipping industry, according to them.
To look into this aspect of this issue, The Morning spoke with maritime lawyer and scholar attached to the International Max Planck Research School for Maritime Affairs, Prof. Dan Malika Gunasekera, who said that numerous concerns arise as to the legality of the ship’s entry to Sri Lankan waters, and whether Sri Lanka has properly exercised the procedures in dousing the fire.
He added: “These kinds of ships and containers have been coming to the Port of Colombo regularly for well over several decades. So the ship coming into our Port is not the issue here. The issue is, whether our Port was informed of the dangerous cargo that was onboard and also whether we could have attended to the technical requirements that had been requested by the Captain. A question arises as to whether our authorities could handle it properly. If this was brought to the attention of our authorities, and if our authorities have given the permission, then of course we could assume that the Port of Colombo was better equipped to handle such a situation and to attend to the particular leak that was onboard the ship.”
Adding that whether proper management procedures had been executed and taken into account is a concern, Prof. Gunasekera noted that Sri Lanka should learn from similar experiences of other countries and adopt such methods.
He explained: “Sri Lanka does not have much experience and expertise to handle such a calamity as these types of incidents have not occurred in such magnitudes in the past in Sri Lanka. So in such situations, it is paramount for us to learn from the experiences of other countries in handling these kinds of situations and we do have a lot of such examples in world history, both in the distant past and in the recent past. So, whoever is attending to such incidents must also go through reports of how other countries have handled such incidents, and also study them and keep records of them, because, we need to at least know the drills pertaining to attending to such incidents which might take place at any moment.”
He emphasised that Sri Lanka should not ignore this incident, as Sri Lanka is located at a strategic location in the Indian Ocean.
Prof. Gunasekera, describing extensively the importance of Sri Lanka adopting modern international maritime practices and comparing Sri Lanka’s maritime laws and policies with those of other countries, added: “We do have what is called the National Oil Spill Contingency Plan (NOSCOP) managed by the Marine Environment Protection Authority (MEPA). However, we do not have any other national contingency plans, especially when it comes to hazardous and noxious substances. We lack certain legal provisions in the Marine Pollution Prevention Act, as we are not a party to the Hazardous and Noxious Substances by Sea Convention of 1996 brought by the International Maritime Organisation (IMO). Although we do have certain provisions to deal with such chemical substances, it is not in its entirety the law which can be used to deal with these kinds of materials. Therefore, we do need to develop further, in order to deal with these kinds of substances that are coming to our waters.”
“The other most important element here is whether Sri Lanka is legally covered in our own legislation to deal with problems of this nature. Now Sri Lanka has its own marine pollution-related legislation, known as the Marine Pollution Prevention Act. It is more equipped to handle oil pollution incidents than incidents that involve chemicals or hazardous or noxious substances. This is mainly due to the fact that we have not ratified some important conventions such as the aforementioned Convention dealing with this particular area. Had we become a party to that, and brought it into our national legislation or amended the Marine Pollution Prevention Act in line with that, we would have been much more equipped to handle this. Under the said Convention, there are various kinds of provisions concerning compensation that could have been used in these types of incidents. Also, Sri Lanka needs to become a party to the Convention on the Limitation of Liability for Maritime Claims of 1976. Also, we do not have limitation regimes in our national law. We need them also to safeguard the shipping industry. It is an extremely important element, and we need to protect the shipping industry in times of such liabilities arising out of these kinds of situations.”
He noted that in this context, Sri Lanka needs to ratify and become a party to some very important conventions at least now, before another catastrophe of this nature or even a much greater catastrophe can occur.
Due to the damages caused to the environment, several parties such as the fisheries community and the hotel industry have been affected, according to those raising a voice in connection with the incident. According to some who have been vocal about these risks, Sri Lanka’s fisheries sector may have to face long-lasting effects.
Speaking of the hardships the fisheries community is facing, Wedaarachchi claimed that the Government has to accept responsibility for the issue being faced by the country’s fisheries community and that the damage the incident caused to the fisheries community is massive.
He added: “The Puttalam area has become a prohibited area, and fishermen have been rendered unable to continue their activities. There are around 25 industries linked to the fisheries industry and none of them have a good environment to do their jobs until the ship is removed. But, we do not know when that will happen. Therefore, the Government should take action to give every affected person in the fisheries industry a substantial monthly compensation. Not only industries such as tourism and fisheries, marine life have also been severely affected by this incident.” He further added: “There are six turtle species that live in Sri Lankan waters. We think that only fish died due to this incident, but it affected all other types of marine species such as coral which takes years to grow.”
Wedaarachchi also criticised the manner in which the Government handled the ship’s situation, especially the fire, and added that ignorance, recklessness, and short-sightedness on the part of the authorities had caused the fire aboard the ship, resulting in a disaster. He also said that the responsible parties should resign.
He noted: “The coastal area was severely affected. All of this is because of the Government’s fault, and the responsible persons including ministers must resign. Several institutions, namely the Fisheries Ministry, the MEPA, the Environment Ministry, the Coast Guard, and the Sri Lanka Ports Authority (SLPA), should take some responsibility.
He revealed that several persons including SJB members had lodged a complaint with the Human Rights Commission of Sri Lanka (HRCSL) seeking measures for the protection of the rights of the fisheries community.
As a large number of various allegations have been levelled against the Government and the authorities by politicians, environmentalists, and those in the fisheries industry, The Morning also attempted to contact the relevant authorities. However, multiple attempts to contact officials of the MEPA and the National Aquatic Resources Research and Development Agency (NARA) to obtain more information about the evaluation of the environmental damages this incident caused, proved futile, while Ornamental Fish, Inland Fish, and Prawn Farming, Fishery Harbour Development, Multi-Day Fishing Activities, and Fish Exports State Minister Kanchana Wijesekera and Ports and Shipping Minister Rohitha Abeygunawardena were not available for immediate comment.
However, when queried about the allegations that there were certain shortcomings on the part of the authorities in dousing the fire, SLPA Chairman Gen. (Retd.) Daya Ratnayake said that the SLPA’s responsibilities were fulfilled by taking every measure in accordance with the proper procedures, and that the SLPA’s policies and procedures are in step with the international standards.
He added that the ongoing investigations are mostly legal, and that the role the SLPA plays in this process is a straightforward, rather small one. Speaking further, he noted: “What the SLPA is doing is more of a business. The process of allowing the ship to enter Sri Lankan waters was legitimate. Steps were taken based on the information that was presented to us. When the fire was reported, we responded as we should. However, later it was reported that there were certain things that we were not informed of, and the legal authorities are looking into them. We have also submitted a report to the Attorney General’s Department.”
He added that other institutions such as the MEPA and the Navy are the main institutions carrying out the necessary responsive activities in this connection, and that the SLPA has extended its co-operation. He added that steps have already been taken to claim the expenses borne by the SLPA during the process of extinguishing the fire onboard the MV X-Press Pearl.
As many of those who spoke with The Morning for this article and before have observed, this incident could be a good lesson, if Sri Lanka is willing to update its policies and procedures to safeguard the country’s territorial waters.
There are various speculations as to whether Sri Lanka could have prevented the fire from worsening, and those questions would be answered soon now that the authorities have commenced investigations. However, the reality is that the damage, mostly environmental, that the ship caused is still being assessed, and what is left to do is to take measures to ensure that Sri Lanka would be more ready to face similar situations in the future.