By Sulochana Ramiah Mohan
Dr. Dan Malika Gunasekera, Attorney-at-Law, Expert in Law of the Sea and Maritime Law said that the MV X-Press Pearl became a hot topic last year when it caught fire. He said that State officials have already lost a huge stake in this entire episode. While our authorities have been counting days and months to institute legal actions against the responsible, and failing to take prompt measures in detaining the wreck against the settlement of due compensation, the relevant shipping company and other parties interested in the beneficial ownerships and various interests including that of cargo have instituted Limitation Proceedings in London to limit their liability towards the various losses and damages caused as a result of the incident.
“Since we were quite aware that Sri Lanka is not a party to the London Limitation Conventions or what is officially known as the Conventions on Limitation of Liability for Maritime Claims 1976/96, and the country did not have any domestic limitation regimes, our State officials maintained the position of a deaf-elephant without taking prompt legal action on land to secure a much needed compensation package. While the Government maintained the position that it would obtain the services of a foreign legal firm, the expert legal opinions provided by me in particular as an authority in this area of the law were not welcomed allowing me to raise the question: what opinions have the experts made in respect of securing the country’s benefit?”
Law enforcement authorities as well as the Attorney General Department have yet failed to secure the due compensation or bring the relevant perpetrators before the law. Despite the obtaining of an extremely low figure of what it called an ‘interim payment’ of around USD 3.7 million, and instituting criminal proceedings against the crew; these authorities have failed to provide justice to the State of Sri Lanka and its people possessing the sovereign power while the marine environment being held in custodianship of the Government.
Now it’s a shame! Sri Lanka experienced its worst maritime disaster in its history, and our State officials have failed to bring home the necessary compensation not only as a matter of reparation or restitution, but a foreign currency package of around USD 5-7 billion at a time that this country has run into bankruptcy in wake of the economic crisis.
Slow and lethargic progress
While the Marine Pollution Prevention Act No. 35 of 2008 provides considerable amount of teeth for the responsible State authority to obtain compensation, the matters are been dragged over a year already without submitting a full–detailed damage assessment report on which compensation could be sought. One day after the other, they seem to be giving so many excuses for their failure in presenting a formidable claim against those liable. On the other hand, the State Attorneys have been keeping silent over any institution of legal proceedings against the ill-fated vessel or those liable such as the ship owner, charterer, managers, or insurers. Reportedly, MV X-press Pearl, like any other ship that sail in international waters, had possessed various insurance policies known as P&I covers ranging from ship to pollution, and towards the wreck removal. For example, the Oil Pollution Limit of Liability extending to USD 1 billion was the cover provided by The London P&I Club that this vessel had to maintain in order to enter a certain port of call. Apart from that, it had also covered several other risks as per its Clauses in accordance with the Class Rules including Wreck Removal risks and pollution caused to the marine environment from various substances that are carried on board.
It is sad that our authorities failed to take prompt legal action against those responsible under civil law for compensation from loss or damage while relying upon an extremely low interim payment they secured against a huge burden that could have been rested upon those liable for the incident. Obtaining of the interim payment has hit a brick wall on the part of the State that prevents itself from instituting legal action at present. While the country could benefit for an estimated sum of around USD 5-7 billion at a time it is in an economic crisis, the lethargic and unwarranted actions of those officials of the State are indeed unwelcoming. This has even raised alarming concerns among the public whether these State officials have been involved in some sort of fixing a deal, and such concerns can be readily seen in the discussions that go-round the various media including that of the social media.
Removing the wreck and losing the opportunity
The other major concern is that the State law enforcement authorities including the maritime regulator of the country, the so-called Director General of Merchant Shipping (DGMS) allowed the wreck to be removed without obtaining the necessary guarantee that could have been supported by the responsible parties with a P&I cover. The Caretaker Agreement in respect of the wreck removal had been coordinated and entered between the owner of the vessel and the salvager without the Government of Sri Lanka not becoming a party. As the Merchant Shipping Act in Sri Lanka readily provides provisions for the DGMS to act as the Registrar of Wrecks in the country and to obtain any wreck under his possession subject to the authority of allowing it to be removed under his supervision and strict control such as upon being provided with security and other relevant approvals, any failure in overlooking these regulations and simply allowing a unilateral approach towards the salvager to take control of the removal of the wreck would certainly deprive the legal and financial benefits that this country would otherwise have.
The vessel X-Press Pearl, carrying 400 containers had nurdles estimated to be over 50 billion pellets among other materials, as well as 300 MT of bunker oil, caught fire in the waters of Sri Lanka on 27 May 2021, is one of the world’s worst marine disasters. After a year, there has been no progress in developing preventative measures to avoid future maritime disasters.
The Foreign Ministry is pursuing funding for the proposal to establish a maritime disaster coordinating hub, but it may be further delayed due to the financial crisis, implying that if another disaster strikes, Sri Lanka will be unprepared.
It also came to light that the Indian Coast Guard, who helped put out the fire, had still not being paid by the Sri Lankan Government.
The State’s apex body, the Marine Environment Protection Authority (MEPA), is in charge of preventing, controlling, and managing pollution in Sri Lanka’s waters.
The wreck is still stuck in the seabed at a depth of about 21 metres off the coast of Colombo in the Dikkovita area, and MEPA has been ordered not to reveal any details to the public due to an ongoing lawsuit filed against the X-Press Feeders, and it is believed that if these details are leaked, Sri Lanka will be unable to obtain the assessed compensation.
The harbour master and the ship captain had conflicting accounts of how the ship arrived in Sri Lankan waters. The public was outraged that a ship emitting smoke was allowed to enter the Colombo Port anchorage. The ship arrived in Colombo on the night of 19 May and was anchored in the outer harbour, waiting for a berth, while the smoke billowed.
The X-Press Feeder crew discovered a container loaded at Jebel Ali, Dubai, was leaking nitric acid on 11 May 2021, and requested that it be offloaded at both, Hamad, Qatar, and Hazira, India, but permission was denied. According to X-Press Feeders, the requests were denied because “no specialist facilities or expertise were immediately available to deal with the leaking acid,” and the vessel continued on its planned journey to Colombo.
The debate then focused on how Sri Lanka ‘invited’ trouble while ports in Kuwait and India avoided the disaster. The Colombo Harbour was suspected of trying to make a buck by dousing the fire and claiming insurance, but it backfired, resulting in the Indian Coast Guard arriving to rescue the ship, but it eventually sank after becoming completely charred by the fire.
According to Ceylon Today, the dangerous cargo that was loaded at Jebel Ali was actually from Iran, who had irresponsibly packed the cargo.
The Sri Lankan Government has sent the operator an “interim claim” for USD 40 million in response to costs incurred through 1 June – the day before the vessel partially sank off the coast of Colombo.
The European Union Maritime Safety Agency (EUMSA) has also provided satellite imaging support for spill detection, as well as a USD 240,000 donation to cover clean up equipment and personal protective equipment.
It is only the MEPA’s official Facebook page recently updated its recent activities, stating that the X-Press Pearl shipwreck has been a year and that they have begun clearing the coast. The MEPA website is out of order when Ceylon Today tried to obtain information.
According to MEPA’s recent updates on Facebook, 64066.5 bags of garbage (approximately 1,700MT of nurdles and other wastes) are currently being removed from beaches while clean up efforts will continue for the next 280 days.
According to international salvage experts and the P&I Club, the removal should not begin until the current monsoon weather season has passed. However, the Sri Lankan Government is negotiating to speed up the process.
Ceylon Today has learned, however, that the final report will not be ready until all of the nurdles have been cleared and all other environmental damages have been assessed and addressed.
“We’re still finding nurdles and plastic waste from the shipwreck, so how do we make the final report?” said an MEPA official who asked to remain anonymous.
The shipwreck, he claims, has not been removed, and only a few burned cargo containers have been removed and collected at a Wattala yard.
Despite his lack of knowledge about the compensation and funding involved in clearing the ocean, he added that the removal of the wreck is a lengthy process, with the cables still in place and the containers gradually being removed. He stated that the ship would be removed in sections, which would be a time-consuming and laborious process.
MEPA Chairperson Dharshani Lahandapura was not contactable even after emailing several questions asking for updates on the disaster and calling her mobile phone was futile.
The owners of the X-Press Pearl and their P&I Club hired Resolve Marine, an American company that is a member of the International Salvage Union (ISU), to remove debris from the casualty and surrounding waters in Sri Lanka. An international team of experts is on board to assist with imaging, positioning, recovery, and processing for ashore handling, as well as a specialised DP Vessel mobilised from Singapore to assist with recovery operations. Resolve Marine is continuing to collaborate with all stakeholders in order to expedite the operation while minimising environmental impact.
Resolve Marine was hired as the interim caretaker on site, according to a senior MEPA official, and was in Sri Lanka from October 2021 to March 2022. They cleaned up the area surrounding the wreck. The debris removal was put on hold due to the monsoon, but it may resume in November, he said.
In addition, the contract to remove the sunken container ship X-Press Pearl from waters off the coast of Sri Lanka was awarded to Shanghai Salvage, a division of China’s Ministry of Transport. They arrived in Sri Lanka in November 2021 and are currently there. The wreck’s removal from the sea has no timetable, according to MEPA.
Pearl Protectors on the disaster
The MV X-Press Pearl disaster, according to Pearl Protectors, a volunteer-based organisation that advocates for the protection of Sri Lanka’s marine environment, was one of the world’s largest maritime disasters, causing the world’s worst nurdle spill. According to reports, a fire on board was caused by a nitric acid leak. It was at this point that hell broke loose at sea for Sri Lanka. Following a massive explosion on board, the fire quickly spread across the vessel, making it impossible to put out. Heavy hazardous smoke began to billow towards land after containers were thrown overboard.
Pearl Protectors say that what followed was many severe impacts on the marine environment and dependent industries; multiple feet of nurdles washed ashore, fishing was banned in the area, heaps of bunker oil continued to spill despite MEPA Chairman claiming that there was no oil spill, countless turtles, dolphins, marine animals started beaching, warning of toxic rain announced, oil contingency plan initiated and local communities banned from visiting the beach. The impact from this disaster still lingers heavily. Some started pointing fingers away from the disaster. As for the reason of marine deaths; it has come to light that the disaster was indeed responsible for the deaths. Based on the severity, Sri Lanka should have requested a compensation worth over USD 1 billion, yet only USD 3.2 million has been received. The Government has failed to be transparent regarding this disaster. Meanwhile, large amounts of nurdles are still washing ashore, the environmentalists say.
Muditha Katuwawala, the coordinator of the Pearl Protectors, told Ceylon Today that MEPA is not forthcoming with information and has provided no updates on the X-Press Pearl disaster. “The Chairperson of MEPA stated that there was no marine impact in the MV New Diamond vessel disaster in 2020. Because of a court case, nothing has been said about the X-Press Pearl interim report. Why were there such a large number of sea animals killed, and why was the USD 40 million compensation payment reduced to only USD 3.2 million are some unanswered questions, he added.
Katuwawala questioned why there isn’t a Disaster Management Centre for ship disasters. He also claimed that there is a significant geopolitical intervention in this matter, and that the majority of the information received on the wreck was obtained from third parties, with officials refusing to speak up.
The International Convention for the Prevention of Pollution from Ships (MARPOL), which covers the prevention of pollution of the marine environment by ships due to operational or accidental causes, must be incorporated into the legal system.
“We won’t be able to take legal action if some of the conventions aren’t made into laws, and there’s also absolute corruption and internal strife, as many have claimed.” As a result, some people are wondering if there has been any proper investigation into the matter. The impact on fisher livelihood, marine animals, tourism and on coastal community is not known.
The ship disaster in Mauritius water resulted in a claim of USD 1.2 billion for oil spill, while the Gulf of Mexico disaster resulted in a claim of USD 15 billion, and the X-Press Pearl spilled a massive amount of nurdles and was deemed the worst in the world.
Global intervention on maritime disaster
The Sri Lanka Ports Authority has already submitted a proposal to the Foreign Ministry and other stakeholders to establish a disaster coordination centre in the event of a major disaster, and is seeking funding. As long as the country’s crisis situation persists, there appears to be no viable solution in place to deal with any future maritime disaster that may occur in Sri Lanka.
In this context, India and Sri Lanka have signed a Memorandum of Understanding with Bharat Electronics Ltd (BEL), an Indian public sector company, to establish a state-of-the-art Maritime Rescue Co-ordination Centre (MRCC) in Colombo. The Memorandum of Understanding was signed on 28 March, 2022 in Colombo during the visit of Indian External Affairs Minister S. Jaishankar. BEL compnay based in Bengaluru, has proposed improving Sri Lanka’s small MRCC by putting in place advanced software systems that will boost the country’s communication and coordination capabilities in its Search and Rescue Region in the Indian Ocean, where it is the first responder. The India-Sri Lanka MRCC will be funded with a USD 6 million grant from India.