Introduction
The world was celebrating Environment day on 5th June but at the same time one country was facing its worst man-made environmental disaster as claimed by many environmentalists. Sri Lanka is facing its greatest environmental calamity in history after a cargo ship MV X Pearl carrying chemicals caught fire off its coast, dumping microplastics on the country’s beautiful beaches and destroying marine life. From this event a lot of question remained unanswered. First and foremost, how did this fire start, was this really an accident or it is a negligence, what does this accident unavoidable and most importantly the legal facet of instant event.
Whenever someone utters the word ‘trade’ the first thing that comes to mind is generally cargo ships with dozens of containers carrying goods, they become synonymous for global trade. According to vision project roughly 70% of world’s goods are transported by sea as containerized cargo. Many a times accidents occur on carrier boats during transit, resulting in crude oil pouring into the oceans that leads to devastating effect on environment and marine life. Despite a dramatic decline in the incidence of oil spills since 1970, these incidents continue to be a major source of contamination in the environment. The latest is of Sri Lanka’s worst environment disaster that is in limelight. The MV X pearl was carrying chemical and cosmetics including 25 tons of Nitric Acid. Thankfully it was not carrying oil along with it but it was carrying something more dangerous as aforesaid.
Legal Facet and Global Trade
The instant event is pertaining to maritime law in a wider scope but it needs to be noted that within a maritime domain the issue of marine pollution — whether generated by invisible chemicals, considerably more obvious types of plastics (including micro-plastics), or (probably the most evident of all) oil contamination — is a notable illustration of the absorptive between “public” and “private” international maritime law. The carriage of cargo by sea through ships, vessels and bulky containers is generally governed by the body of private international law but the environmental damage or any harm including pollution or like a catastrophic event like the instant one is governed by the Public International law as per the agreements between states. Therefore, the damages to victims in context of maritime environmental damage is a matter concerning to both private and public International law.
Accidents at sea frequently have long-term implications, resulting in loss of life or property damage. Ship-related mishaps and accidents leads to loss of marine life, affects the live and livelihoods of many and damage a toxicity in the surrounding environment. In the instant case of Sri Lanka, due to the chemical spill already untold damage has been faced by Sri Lanka’s coastline. Thus, apart from the destruction of the surrounding marine life, different industries, particularly tourism, fishing and the food and beverage are also adversely affected.. Thus, the question of determining liability in a disaster like oil spill or event like Sir Lankan one is of utmost importance.
Liability in Common Law:
In the case of MV Pearl it is pertinent to unravel the facts completely to ascertain the liability of this catastrophic event. The Ship lefts India’s Hazira Port on 15th of May the coast is set to Singapore which went sailing around Sri Lanka. Where in sail. It seems that Nitric acid leaked but it does not burn itself. However, if it touches certain metal then it causes explosion. And, once fire broke out the whole ship was engulfed in flames. It seems like an accident but this wasn’t some accident as ship operator was aware of this leak but then why did they continued sailing. It appears a case of negligence but is it really, that is a question here. Because, the ship tried to leave the container not once but twice since it sets on sail firstly in Qatar and then again in India but both ports did not have the facilities to store the container. Therefore, they decided to sail with the container instead of calling for help. It is evident here that it is a case of negligence or more appropriately criminal negligence.
It is easy to impute the liability in cases where damage is caused due to negligence of crew members or results of defects in ship due to lack of maintenance by applying the rule of Strict liability as originated in case of Rylands v Fletcher. But, a tortious liability under tort of public nuisance is more appropriate under such circumstances. Still there is a grey area on the aspect of criminal liability in particular for such cases.
Liability under International Legal regime
Ongoing attempts have been undertaken since 1954 to develop international accords that may hold shipowners accountable for pollution produced by their vessels or any mishap happens by their vessel due to their mistake. This is also an example of the “polluter pays” concept, which states that the company that causes the damage must pay for the damage. The two major framework in international regime to curb marine pollution especially related to oil is the International Convention on Civil Liability for Oil Pollution Damage (“CLC”), 1969, and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (“Fund Convention”), 1971. Both the aforementioned conventions were superseded by the 1992 CLC and 1992 fund convention. The concept of compulsory liability insurance, International Oil Pollution Compensation Fund and other concepts were adopted to pay the damages to victims.
Apart from the aforementioned conventions there are few other conventions also but the cause of concern is the nature of existing legal framework because none of them has penal aspect involved. Only paying compensation and damaging environment due to negligence is not a good way to achive the SDG goals and a sustainable future hence the legal ponderance is an urgent need on the subject matter. With a growing threat to environment and instance like Mauritius oil spill, FSO Safer oil tanker Yemen, Russian Oil spill in rivers and the latest one is of ship MV X Press Pearl in Sri Lanka. This events in past are enough to divert the attention of international community to take stringent legal steps to safeguard the marine flora and fauna. Such events was not only limited to marine life but they affect the economy as well as human life in an unprecedented manner every time.
Few highlights as how the Sri Lankan disaster is an all-round disaster as it took 6 whole days to douse the fire and now the Sri Lanka’s beaches are swapped with plastic pallets, the spilled nitric acid already killed marine life and the livelihood of fisherman is already in danger for coming days as Lankan government banned fishing. It is an all-round disaster that also affects human rights to an extent but it could have been prevented. For Sri Lanka the disaster like this seems too often as last year MT new diamond ship caught fire on coast. The captain and ship owner of MT new diamond paid fine after the order of Sri Lankan High court But this fine cannot undone the impact on ecology the long term effects will be there and hence there is need to re-examine legal framework, cargo trades and other aspects.
Conclusion
As established at the very outset, that the marine pollution in particular is a global issue. The international regime that has emerged throughout time is an honourable attempt to provide a global solution to a global issue. While no system is flawless, it is clear from the preceding discussion as with the changing time there is a need to adapt new solutions to deal with the problem in a more determinative way. If we continue to ignore it, we are just adding one more tool of ecocide towards nature.
The problem associated with incidents of oil spill or mishap in ocean are multidimensional in nature ranging from environmental crisis, economic loss to catena of things that can be mentioned. At their heart, mishaps like Sir Lankan one in the oceans are obviously avoidable tragedies that have a huge and wholly negative impact on the ecosystem. Given the current state of the environment, avoiding future such holocaust or catastrophe should be considered a top priority. It is a need of hour to enact more stringent laws to prevent, deter and subsequently manage mishaps as necessary.
In toto, when countries talk about trade deals, we need to make trade sustainable and safe by pondering on legal framework and making negligence as criminal offence in such cases especially.