Sri Lanka has ratified MARPOL, as well as UNCLOS and it has ratified the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.
by Dr. Ruwantissa Abeyratne in Montreal
Pollution is the forerunner of perdition
John Trapp
On 3 June 2021 Reuters reported: “Sri Lanka is readying for the possibility of an oil spill after a cargo ship laden with chemicals sank off its western coast. The Singapore-registered MV X-Press Pearl, carrying 1,486 containers, including 25 tonnes of nitric acid along with other chemicals and cosmetics, was anchored off the port city of Negombo when a fire erupted onboard after an explosion on 20 May”. Although the ship’s owners had said that the possibility of an oil slick was rare in this instance, photos taken by the Sri Lankan coast guard showed otherwise, with clear evidence of a “layer of green film blanketing the ocean surrounding the vessel, and millions of plastic pellets have fouled surrounding beaches and fishing grounds, forcing the government to ban fishing along an 80km stretch of coast”. The Sri Lankan authorities are conducting salvage and cleaning operations with the help of international expertise including the Dutch salvage company SMIT. The first attempt by divers of the Sri Lanka Navy was thwarted by stormy seas and wicked waves.
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| Burning ship at Colombo Anchorage |
The discharge of elements carried in the vessel has been described by a well known and respected microbiologist in Sri Lanka as devastating. The nitric acid would increase acidity in the sea and as the ship was closer to the shore where the biodiversity was most concentrated, large swathes of marine life would be threatened, affecting the entire food chain in the sea. The spillage could spread both to the North and the South along the Western coast. The ship was also carrying plastic pellets which could be ingested by larger marine life. The most heinous, however, as identified by this scientist, is the consignment of micro plastics carried in the ship that are used to make cosmetics. Micro plastics are plastic particles, which are less than 5 micro meters in diameter, and which originate from a variety of sources, including cosmetics, clothing, and industrial processes. These cannot be seen by the naked eye and would therefore go undetected. They would inevitably affect algae and coral, destroying them.
BBC Global News reported a Sri Lankan spokesman as saying that the country would seek compensation in accordance with principles of local and international law. Local laws aside, accountability and ensuing compensation would depend on the relevant international treaties Sri Lanka has ratified.
The preeminent multilateral treaty governing pollution from ships is The International Convention for the Prevention of Pollution from Ships (MARPOL) which was adopted on 2 November 1973 at The International Maritime Organization. Article 4 of MARPOL prescribes that sanctions be imposed under the laws of the state of administration for violations of the Convention. Article 6 obligates the administration of a ship to allow searches to be carried out by officials of a State in whose jurisdiction the vessel is located at the time of an incident.
Environmental costs regarding salvage have their genesis in the York- Antwerp Rules which are embodied in the International Convention on Salvage of 1989. The Convention carries the fundamental principle of the tort of negligence founded on the duty of care owed by one to another to prevent or minimise damage to the environment. This principle enables salvors to receive compensation for their efforts and skill in minimizing damage caused to the environment by pollution. Compensation varies with the degree to which such efforts are exercised.
The United Nations Convention on the Law of the Sea of 1982 (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 results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities. At the time of writing, no signs oil spillage from the wreck had been detected nor were there any signs of expulsion of other dangerous and delirious material. However, it was reported that experts are fearing that hundreds of tonnes of oil in the ship's tanks could devastate nearby marine life and beaches. If there is such an eventuality, liability may not accrue as The International Convention on Civil Liability for Oil Pollution Damage of 1969 at Sea covers only oil carried in bulk as cargo or as a subsequent Protocol decreed, ships in ballast (empty ships) where traces of oil previously carried as cargo are found to have been dispersed.
Another important international treaty was adopted in 1989 called the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. The purpose of this treaty is to control international trade in hazardous wastes. It entered into force in 1992. The Convention prohibits trade in hazardous wastes without the importing country's written consent to a particular export; or where the exporting country has reason to believe that the particular wastes will not be handled in an environmentally sound manner. It is a much-subscribed treaty, having more than 160 ratifications.
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 that favor the shipowner, salvor, insurer and any other person for whose act, neglect or default they are responsible. Here the term “shipowner” is inclusive in that it includes owner, charterer, manager, and operator. The liability limits also extend to “any person who has an interest in or possession of a ship”, Exempted categories from the limitation of liability are claims for remuneration for salvage, marine pollution damage, nuclear damage, and certain claims by servants of the shipowner or salvor. Special compensation claims under the Salvage Convention are excluded from limitation of liability.
Sri Lanka has ratified MARPOL, as well as UNCLOS and it has ratified the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. There is no evidence that Sri Lanka ratified 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 Act, while giving legal legitimacy to the international treaties Sri Lanka has ratified, provides for the prevention, reduction, and control of pollution in Sri Lanka waters. Specifically, Article 26 provides inter alia that if any oil or other pollutant is discharged or escapes into Sri Lanka waters from any ship, or from any apparatus used for transferring oil or other pollutant to or from a ship (whether to or from a place on land or from another ship) where the discharge or escape is from a ship, the owner. operator. master or the agent of the ship, is guilty of an 'offence and will be liable on conviction to a fine not less than four million and not more than fifteen million rupees. Article 24 requires the owner, master agent or salvor to take steps to prevent such a disaster. Article 34 lays down criteria for compensation payable by the aforesaid categories of persons to those suffering damage.
The Epilogue to this disaster tells the perennial tale: that in any disaster, man made or natural, the worst affected would be the poor. Small scale fishermen along the Western coast of Sri Lanka have lost their only means of livelihood with the ban imposed on fishing. Their plight was evident when they were interviewed by the BBC. This is a pity.
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