Why are officials not fighting for USD 20M in compensation?

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Ceylon Today has serious concerns concerning what the Government has done to secure its claims for environmental damages caused by the fire aboard the cargo ship MT New Diamond, a Greek-owned vessel chartered by Indian Oil. So far, no payment has been recovered from the fire, resulting in no opportunity for Sri Lanka to seek compensation.

The New Diamond commenced its journey on 23 August 2020, but while transiting in the Sri Lankan Exclusive Economic Zone the vessel experienced an explosion followed by fire.

Reportedly within the two years from the date of incident (3 September 2020), the relevant authorities or the expert committee should have filed its claims through the Attorney’s General (AG’s) Department failing which it would be null and void.

What did the MEPA’s expert committee do about filing for compensation? Also the AG’s Department is responsible for claiming the damages from the MT New Diamond and two years have passed since.

When questioned, Marine Environment Protection Authority (MEPA) Chairperson Dharshani Lahandapura said, they have filed a case on 2 September 2022 a day before the due date for filing a case would expire.

According to sources, a letter of demand has been sent before filing the case.

Instead of pushing for claims, the AG’s Department’s environmental lawyers had waited till the last day to file a letter of demand. Speculations are rife that the claim would be around USD 22 million, but this would depend on the Judge’s discretion.

In October 2020, the New Diamond vessel departed Sri Lankan territorial waters after paying Rs 442 million in compensation for the costs expended by the Government’s stakeholders to put out the fire. However, this amount did not address the environmental harm the ship created.

There has been no adequate response from the P&I Club (A Protection and Indemnity or P&I club is a non-governmental, non-profitable mutual or cooperative association of marine insurance providers to its members which consists of ship owners, operators, charterers and seafarers under the member companies: Marine Insight), as officials have not approached them on marine life destruction caused by the fire.

The AG’s Department has been lethargic on pushing for millions of dollar in claims from P&I for which could have gone for the conservation of local marine life and putting back the ecosystem in order by monitoring and restoration work and enhancing the population of sea turtles. Sea turtles take around 30 years to grow into adults and out of thousand of eggs only one will grow into maturity, because sharks and other big sea animals feed on baby turtles.

The claim can be used for future oil slicks if so immediate action can be taken to protect endangered species like sea turtles and marine mammals. Fish airbladders explode, resulting in internal bleeding and death; as a result, the evidence can be used to study marine disasters. So, following the New Diamond incident, the carcasses of sea turtles, two dolphins, and two other sea creatures washed ashore.

Sea turtles exhibit innate behaviour as well. When they lay eggs and are then released into the water, they return to lay eggs at the same location. This behaviour has not changed for eons.

According to sources, approximately 20 dead sea turtles were found washed ashore. Local media reported that several more deaths which were not officially recorded and around four sea mammals that had died as a result of the fire.

Environment impact

On a TV programme called Pethikada the colossal disaster to the environment and marine life was discussed where one of the members of the expert committee, retired Faculty of Fisheries and Marine Sciences and Technology University of Ruhuna Prof. Palawinnege Ruchira Tharangini Cumaranatunga. She said, the New Diamond caught fire during the monsoon season (Mosam) which was a breeding time. If foreign substance or elements mix in seawater at that time, fish eggs and juvenile fish would have swept along with the current towards the ship as well. These are not visible to any experts; only large fish in distress could float and be spotted. They may be captured by fishermen and also found dead in the sea, far from the area affected by the fire and oil slick.

She claimed that marine animals had never died this way before in Sri Lankan waters. She said, MEPA’s submission to the COPE committee declared that there was no damage to marine life. She asserted that she never said anything about sea animals not being vulnerable to the calamity, during the talk show. Her report, in which she provided her knowledge of marine life, was misrepresented. “In my report, I discussed the effects on marine life and described how they had happened and may happen.”

“I was wondering how it was mentioned differently. My research claimed that a certain fish species’ found with a distinctive brown colour deposit in their gills was what ultimately led to their demise. I expanded on my report. Despite it being mentioned, the absence of a confirmed cause of death was shocking. In my capacity as a marine biologist, it was disrespectful. They gave me a job to compile a report and they should divulge information just as I did. We need to be honest since we used taxpayer’s money,” she continued. “We were asked by COPE’s Chairman why an amount of around USD 18 million had been requested, but MEPA did not provide a satisfactory response”.

She describes sea turtles as “extremely sluggish” in this context. The male species do not visit the beach. They live on the seafloor and only come to the surface to breathe once in a while. They hold their breath and stay on the seafloor for days. Such maritime disasters are a significant calamity for these animals.

She claims that if one sea turtle dies and is washed up on the beach, there could be five or more dead in the sea. Many sea turtles can rot and perish in the sea when fire and chemicals are combined. When turtles come to the surface to breathe, they might inhale toxic fumes and lose consciousness.

Research on the disaster has to be analysed in different level and dimension hence the destruction due to the ship fire raises serious environmental concerns.

A research review paper titled “Oil spills and sea turtles: documented effects and considerations for response and assessment efforts” compiled a by team of scientists and experts for Open Access say that oil spills and efforts undertaken to collect or dispose of spilled oil pose a number of potential threats to sea turtles on land and at sea, depending on where and when a spill occurs, what species and life stages are present, and how turtles use habitats within the spill area. Alteration of the physical characteristics of nesting substrate by oil can impact incubation environment, as well as the respiratory function of eggshells (Phillott and Parmenter 2001), but requires further study. Effects of shoreline oil deposition can be short-lived or long-term, depending on factors such as degree of inundation, remediation, and entrainment of oil in beach substrate (Peterson et al. 2003). Also, some nesting areas have rocky intertidal platforms that are traversed by hatchlings crawling to the sea, and oil that becomes permanently affixed to rocks can be a persistent hazard (N. Pilcher pers. obs.).

Tourism could suffer immensely if the calamity persists as in more ship disasters. Coastal sea turtle hatcheries rely on tourism, therefore marine animal protection is critical. There has already been a decrease in the number of sea turtles arriving on the beaches.

The ocean surrounding Sri Lanka is reported to be a productive breeding habitat, and five of the seven sea turtle species of the world are found in Sri Lankan waters.

Slow legal action

The calamity induced by Xpress Pearl in 2021 might be seven times worse, and if New Diamond compensation cannot be claimed or a credible fact-finding mission cannot be conducted, there will be no way to make a claimant for Xpress Pearl.

The main stakeholders on this matter are MEPA, the National Aquatic Resources Research and Development Agency (NARA) and the AG’s Department.

In March 2022, the Government gave instructions to expedite the recovery of the unpaid Rs 3,480 million for the MT New Diamond disaster.

Due to peak Covid months, the expert committee did not meet often with correspondence being mostly online. It may have caused some delays, but overall it has impacted immensely in filing action.

Immediately investigate the situation governing the Legal Division of the Authority and take necessary action, recommendation extended to the Secretary to the State Ministry stated.

According to parliament.lk, the Government’s recommendations were to submit a report regarding the 10-year delay in taking legal action against the ship MV Thermophile which sank in 2012.

A Court injunction that forbade it from departing in 2009 caused a Cyprus-flagged ship to remain in Sri Lankan seas; nevertheless, after it sank, worries of environmental damage were raised. While the legal dispute over the ship was still on going, the MV Thermopylae Sierra sank not far from the coast of Panadura.

The accusations that will be brought against those responsible for the MT New Diamond disaster off the South Eastern coast also received considerable controversy. Legal provisions have resulted in the recovery of Rs 12 million, it was disclosed.

Although the anticipated recovery value is Rs 3,480 million, it was revealed that the money has not yet been received. Further information was provided, including a receipt of Rs 51.3 million in response to the ship’s fire and oil spill in particular.

Additionally, no marine animal deaths are included in the compensation.

This estimate of Rs 3,480 million was developed by an expert committee to repair environmental damage that is covered by civil liability. Acting General Manager of the Authority, Jagath Gunasekera stated that the report has been sent to the AG’s Department and would be discussed later. To avoid these delays and to swiftly recover the money owed to the Government, the Committee highlighted the necessity of communicating with the AG’s Department.

The Committee emphasised that the Authority’s legal manager has to be more involved in these decisions. The paperwork pertaining to the maritime disaster was lost after being given to the legal manager, according to the head of MEPA. When the committee asked the Legal Manager about it, she denied that such a thing had occurred and said it was unlikely that she would even show up to these sessions. COPE’s Chairman advised the Secretary to the State Ministry to launch an immediate investigation and submit a report because such internal problems are a significant barrier to the Authority’s advancement.

The committee brought up the 10-year delay in filing a lawsuit against the MV Thermophile. The officials said that the Attorney General’s Department had received all the relevant data. COPE’s Chairman suggested that the AG’s Department create an emergency intervention strategy to avoid postponing legal action and send a report to the COPE to the Secretary to the Ministry.

It was also discussed to discharge significant amounts of contaminants into the ocean at Modara and Wellawatte in the Colombo District. The Secretary to the Ministry was advised by COPE Chairman Prof. Charitha Herath to investigate into this and provide a report within three months.

COPE’s Chairman inquired as to why the two posts of General Manager of the Authority and Director of Finance and Administration remain as acting posts. COPE’s Chairman advised that necessary interviews be conducted and recruitments be made as it was not a favourable situation.

The main concern is why the relevant Government institutions, stakeholders, and those who should be fighting for the conservation of marine life and against those who destroyed Sri Lanka’s ecosystem are instead debating with environmental experts and academics who demonstrate the impact of the disaster. Are there any parties who have received P&I’s gifts and getting invited to marine-related workshops abroad? Why the delay and why the silence?

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BY Sulochana Ramiah Mohan