X-Pess Pearl Fire – The Legal Regime
Sri Lanka has ratified MARPOL, as well as UNCLOS and ratified the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.
through Dr Ruwantissa Abeyratne in Montreal
Pollution is the precursor of perdition
June 3, 2021 Reuters reported: “Sri Lanka is bracing for the possibility of an oil spill after a cargo ship laden with chemicals sank off its west coast. The Singapore-registered MV X-Press Pearl, carrying 1,486 containers, including 25 tonnes of nitric acid as well as other chemicals and cosmetics, was anchored off the port city of Negombo when a fire broke out. declared on board after an explosion on May 20 ”. Although the ship’s owners said the possibility of an oil spill was rare in this case, photos taken by the Sri Lankan Coast Guard showed the opposite, with clear evidence of a ‘green film coating’. covering the ocean surrounding the vessel, and millions of the plastic pellets have fouled the surrounding beaches and fishing grounds, forcing the government to ban fishing along an 80 km coastline ”. The Sri Lankan authorities are carrying out rescue and clean-up operations with the help of international expertise, including the Dutch rescue company SMIT. The first attempt by Sri Lankan Navy divers was thwarted by rough seas and raging waves.
|Burning ship in Colombo Anchorage|
The discharge of items carried on the ship has been described by a well-known and respected microbiologist in Sri Lanka as devastating. Nitric acid would increase the acidity of the sea and as the ship was closer to the shore where biodiversity was most concentrated, vast swathes of marine life would be threatened, affecting the entire food chain in the sea. The spill could spread both north and south along the west coast. The ship was also carrying plastic pellets that could be ingested by larger marine life. Most obnoxious, however, as identified by this scientist, is the shipment of microplastics carried in the ship which are used to make cosmetics. Microplastics are plastic particles smaller than 5 micrometers in diameter from a variety of sources including cosmetics, clothing, and industrial processes. These cannot be seen with the naked eye and therefore would go unnoticed. They would inevitably affect algae and corals, destroying them.
BBC Global News a Sri Lankan spokesman reported saying the country would seek compensation in accordance with the principles of local and international law. Aside from local laws, liability and consequent compensation would depend on the relevant international treaties that Sri Lanka has ratified.
The main multilateral treaty governing pollution from ships is The International Convention for the Prevention of Pollution from Ships (MARPOL) what was adopted on November 2, 1973 by the International Maritime Organization. Article 4 of MARPOL requires that sanctions be imposed under the laws of the administering State for violations of the Convention. Article 6 obliges the administration of a ship to allow searches to be carried out by officers of a State in whose jurisdiction the ship is located at the time of the incident.
The environmental costs associated with recovery have their origin in the York-Antwerp Rules which are embodied in the International Rescue Convention 1989. The Convention carries the fundamental principle of the tort of negligence based on the duty of care of one another to prevent or minimize damage to the environment. This principle allows rescuers to receive compensation for their efforts and ability to minimize environmental damage caused by pollution. The remuneration varies according to the degree of exercise of these efforts.
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) defines pollution of the marine environment as the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which has or is likely to have deleterious effects such as damage to living resources and to life marine life, risks to human health, interference with marine activities, including fishing and other legitimate uses of the sea, degradation of the quality of seawater use and reduced amenities. At the time of writing, no sign of an oil spill from the wreck had been detected, nor any sign of other dangerous and delusional material being expelled. However, it has been reported that experts fear that hundreds of tons of oil in the ship’s tanks could devastate nearby marine life and beaches. If there is such an eventuality, the liability cannot accumulate as The International Convention on Civil Liability for Oil Pollution Damage of 1969 at sea only covers oil transported in bulk as cargo or in accordance with a later decreed protocol, ships on ballast (empty ships) where traces of oil previously carried as cargo have been found to be dispersed.
There is another treaty that is relevant – the Convention on Limitation of Liability for Maritime Claims (LLMC) adopted in 1976 which contains limitation of liability provisions which favor the shipowner, helper, insurer and any other person for whom they are responsible for their act, negligence or breach. Here, the term “shipowner” is inclusive in that it includes the owner, the charterer, the manager and the operator. The limits of liability also extend to “any person who has an interest in or possession of a ship”, the categories exempted from the limitation of liability are claims for remuneration for salvage, damage due to marine pollution, nuclear damage and certain claims from the shipowner’s employees. or lifeguard. Special compensation claims under the Rescue Convention are excluded from the limitation of liability.
Sri Lanka has ratified MARPOL, as well as UNCLOS and ratified the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. There is no evidence that Sri Lanka has ratified the LLMC. In the context of domestic law, there is the Marine Pollution Prevention Act No. 35 of 2008 (administered by the Marine Environmental Protection Authority / MEPA), which is applied to protect Sri Lankan waters from pollution. The law, while giving legal legitimacy to international treaties that Sri Lanka has ratified, provides for the prevention, reduction and control of pollution in Sri Lankan waters. Specifically, Article 26 provides, inter alia, that if oil or other pollutant is discharged or escapes into Sri Lankan waters from a vessel or any device used to transfer oil or other pollutants to or from a ship (whether to or from a location on land or from another ship) when the release or escape originates from a ship, the owner. operator. captain or agent of the ship, is guilty of an offense and shall be liable on conviction to a fine of not less than four million and not more than fifteen million rupees. Section 24 obliges the owner, chief agent or rescuer to take measures to prevent such a disaster. Article 34 sets out the criteria for compensation owed by these categories of persons to injured persons.
The epilogue of this disaster tells the eternal story: that in any disaster, man-made or natural, the poorest would be the poor. Artisanal fishermen along the west coast of Sri Lanka have lost their only livelihood with the ban on fishing. Their situation was evident when they were interviewed by the BBC. This is a pity.