Monday, August 9, 2010


(V.M. Syam Kumar LL.M., Advocate, Cochin, Faculty Member for Maritime Law, National University for Advanced Legal Studies, (N.U.A.L.S)., Ernakulam.)

India has a long coast line blessed with picturesque beaches and lagoons which are home to highly endangered marine flora and fauna. Large communities live along the coast line, both on the east and west coast of the Indian peninsula, engaged since time immemorial in fishing and allied activities. Many of our important cities like Mumbai and Chennai lie along the coast and are home to millions. Not far from the mainland we have the island territories of Andamans and Lakshadweep which are strategically located. Andaman and Nicobar Islands now have a Major Port and the Lakshadweep Islands are the only group of coral islands forming part of India. Major establishments having tremendous national importance like the Atomic Power stations, offshore oil platforms, oil refineries and Research establishments lie scattered along our coast line. The need for protecting our coastline from oil spills which would wreck a catastrophe on all the above interests and installations need not be overemphasized.
Marine pollution is not the only major issue arising out of collision of ships. Collision could trigger off a string of other issues like handling and disposal of distressed vessel/wreck, salvage and general average contributions/sacrifices, if any, safety of navigation though channels, interference with the port operations, claims of cargo owners whose merchandise are on board the involved vessels etc.
Let us examine, in the backdrop of the collision of two ships along the coast of Mumbai (the magnitude of said shipping causality, even while writing this, is just unfolding gradually as hour by hour tones of oil is leaking into the sea), the Indian law as it stands now with regard to collision of ships and consequences thereof with emphasis on protection it offers from marine pollution.
Law relating Collision of ships is subject matter of a number of international conventions and are connected to the norms evolved in International law with respect to safety of life at sea. Collision Regulations or COLREGS as they are known in acronym, have been around since more than a century. A detailed survey of the international norms regarding collision and the consequences thereof may be out of place here. Suffice to say that in India, the Merchant Shipping Act, 1958 brings some of these norms into the national legal systems (which are more or less verbatim reproductions of international norms) and the Government of India had framed Regulations for prevention of collision at sea.
A bare perusal of the Merchant Shipping Act itself would reveal the haphazard manner in which the provisions regarding collision lie scattered in the said statute, lacking coherence and clarity. A part of the provisions relating to collision can be found in Part IX dealing with Safety. Sections 285 to 287 thereunder deals with prevention of collisions. Sec. 285 (1) empowers the Central Government to make regulations for the prevention of collisions at sea. The contents of the section remind us of a bygone era when the navigations techniques and mechanisms were not advanced as now. It speaks of lights and signals and fog and distress signals etc. which due to the great advancements in maritime technology has rendered redundant. The said section specifically speaks of Indian ships and sailing vessels registered in India. Sec. 285 (2) speaks of an important aspect viz., the applicability of Indian law to the foreign ships. The collisions regulations, thereby meaning the International norms relating thereto including the Indian law pertaining to the point have been made applicable to Foreign ships within Indian Jurisdiction. It is learned from news paper reports that the vessels that collided in Mumbai though flying foreign flags, were clearly within Indian territorial waters, thereby they could, as regards the collision regulations and the said provisions of the Merchant Shipping Act be deemed as Indian ships registered in India. Whether the provisions in the Merchant Shipping Act pertaining to Marine Pollution would apply to these vessels would lie beyond Part IX .
A liability regime is brought in by Sec.286 of the Act which requires closer scrutiny. Sec. 286 after making it imperative on every owner or master of every ship to obey collision regulations under sub clause (1), further proceeds to create the liability regime whereby if any damage to person or property arises from the non observance by any such ship of any of the collision regulations, the damage shall be deemed to have been occasioned by the willful default of the person in charge of the ship. So there exists a presumption against the ship in such cases. If the ship wants to get over this liability regime, it ought to prove to the satisfaction of the court that the circumstances of the case made a departure from the regulations necessary.
Though the above section sound stringent and seems to have the teeth to bite, its just chimerical. Let us examine it further closely. In a proceeding pursuant to collision and damage, under the section, one has to first prove that the damage arose from the non–observance of the collision regulation norm. This is a question of evidence and any lawyer practicing on the trial side in India will understand that it’s not an easy and simple task to prove. Unless this is proved successfully, the rest of the section that deals with liability does not apply unless the fit hurdle is successfully got over. Now even if it is got over successfully, what is it that we achieve? It is just that the damage will be deemed to have been occasioned by the willful default of the person in charge of the ship. The deeming provision necessarily presupposed that even if it is not actual, by way of a legal fiction - which again is a product of legal convenience in larger public interest - the person would be deemed to have committed that default of non-complying with the collision regulation, willfully. Willfully would mean with mens rea and by knowing well the consequences of his non compliance. What is the impact of such a finding if at it comes ultimately? The concept of willful default and its practical legal implications would come to the fore. Along with the same, the question whether the ship owner can be made liable for the willful default of the person in charge would also come to the fore. The non compliance and the resultant damage to could have tortuous and in worse scenarios criminal over tones. Can there be a vicarious liability on the part of the owner to clean up the shores muddled with oil or to partake financially in the cleaning up operations undertaken by the Government in such instances of marine collision and consequent damage? Now the last part of the said section. What type of evidence would be necessary to prove to the satisfaction of the court that the circumstances of the case made a departure from the regulations necessary? The travails of bringing the evidence to the satisfaction of the court justifying such a departure, if it did actually and truly exist, are unparalleled. So there is nothing in the section for the victim or for the accused to cheer about and we the public are not in any manner safer by the said section. Appearances can indeed be deceptive and legal provisions are not exempted from this.
Sec. 287 under Part IX empowers the inspectors to inspect the lights and shapes and fogs and distress signals. Once the damage has been done there is only minimal relevance to this section.
The next Part in the Merchant Shipping Act relevant to the subject matter is Part X. The same is concerned more with the disputes inter se the parties to the collision and deals with the division of loss in case of collision, apportionment of liability, damage payable to persons on board for personal injury, right of contribution from the ship owners etc. It also speaks about damage for personal injury (Sec.346) and the right of contribution (Sec.347). Certain empowering powers as well as administrative ones are laid down in Secs.348-351.
As regards the division of loss in case of collision, the law provides that whenever by the fault of two or more ships, damage or loss is caused to one or more of them or to the cargo of one or more of them or to any property on board one or more of them, the liability to make good the damage or loss shall be in proportion to the degree in which each ship was at fault (Sec.345). Thus this section excludes from it ambit the loss or damage caused to the environment or to coastal residents detrimentally affected by said oil spill or the other loss occasioned directly connected to the incident of collision like the closing down of the port and the huge economic loss suffered by the country and its citizens therefrom. The wordings of the section would thus require, and rightfully so, that first the fault has to be proved and then the question of liability in proportion to the degree of each parties fault would be decided. The problems associated with the proof regarding fault had already been examined herein above.
The proviso to the said section lays down with respect to apportionment of liability that if in the circumstances of the case it is not possible to establish different degrees of fault, the liability shall be apportioned equally sub-clause (a). More importantly, sub-clause (b) to the proviso stipulates that the ship shall not be liable for any loss or damage to which her fault has not contributed. The contractual rights regarding extent of liability, a total exemption from liability or the benefit of limitation of liability under law stands protected under sub-clause (c) to the section. Salvage or other expenses rendered consequent to the fault has been included within the damage or loss stated in the section and are thus recoverable by law by way of damages.
With respect to question of damages for the personal injury in case of collisions, the provision (Sec.346) only speaks of such injuries suffered by any person on board a ship. As regards such persons, the if the injury was due to the fault of the ship or any other ship or ships, the liability of the owners of the ships concerned are joint and several. That would mean that either one or both or all if there are more than two can be proceeded against by the inured person for claiming damages for personal injury. It is however to be noted here that injuries arising out of and as direct consequences of collision to persons not on board the ships are not within the purview of the section. Sub section (2) of that section protects the right of defense that any person might have as well as his right to limit liability under law.
In view of the joint and several liability fixed on the ships, the Part further provides a right of contribution to one ship to realize from other ship/s the amount paid by her in excess of her fault and while doing so she will have the same rights and powers as the person who is entitled to sue for damages in the first instance (Sec.347). A mandatory duty has been cast on the Master of the ship to assist in case of collision (Sec.348) and to enter a statement of the collision, circumstances under which the same occurred etc. in the log book which has to be signed by the Master, the mate and one crew (Sec.349) and to forward a report of the accident to Central Government (Sec.350).
It is relevant to note that Part X does not speak about marine pollution arising from collision of ships presumably because the need for categorizing marine pollution arising from collision of ships as a category of marine pollution necessitating separate treatment was not felt necessary. Is there a need for such a separate categorization is an aspect which we need to look into in view of the increasing number of collisions involving tankers and other merchant vessels leading to enormous spills endangering the fragile marine environment.
Collisions at sea leads to marine pollution and hence it would be relevent to examine the provisions under the Merchant Shipping Act with respect to marine pollution also to the extent they are relevant to incidents of collision.
MARPOL conventions and international norms evolved to contain marine pollution from ships have found way into the Indian legal system though the amendments made from time to time to the Merchant Shipping Act. Marine Pollution concerns lie scattered in three different parts of the Merchant Shipping Act. They are Part X B dealing with Civil Liability for Oil Pollution Damage, Part X C dealing with International Oil Pollution Compensation Fund and Part XIA which concerns Prevention and containment of pollution of the sea by oil. The International Convention on Civil Liability for Oil Pollution Damage, 1992, The International Convention on the establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (Fund Convention) and the International Convention for the Prevention of Pollution from Ships, 1973 including the 1978 Protocol with their amendments from time to time have thus been made part of Indian law by the Parts XB, X C & XI A respectively of the Merchant Shipping Act. Do these provisions make our coastline safer and empower us towards dealing with the consequence arising out of marine pollution from collisions? Let us examine the relevant provisions closely.
Part X B dealing with Civil Liability for Oil Pollution Damage, defines a ‘ship’ as any sea going vessel and sea borne craft of any type whatsoever constructed or adapted for the carriage of oil in bulk as cargo [Sec.352H (h)]. This would mean that ‘ship’ therein denotes ‘Tankers’, as we know them in common parlance and does not take in vessels of any other category like container carriers. So does it mean that spilling of oil used as fuel on board by ships like container carriers, which itself would be in substantial quantities capable of disastrous oil spills, would not fall within Part XB? The definition of ‘Oil’ in the same part is helpful to shed light. Sec.352H (c) inter alia states that oil includes “…oil whether carried on board a ship as cargo or in the bunker of such ship.” Thus though the definition of oil takes in bunker which could mean bunker fuel oil used as fuel on board ships, since in the category of ships the clause only contemplates ships adapted for carriage of oil in bulk as cargo, other ships that use oil or bunker as fuel on board and not as cargo would not fall within the net of Part XB. The practical effect of the same would be leaving out all ships other than tankers from the provisions dealing with civil liability for oil pollution damage.
Thus though it had limited scope and application, let us see how does that part deal with oil spills from tankers. Pollution Damage as defined in Sec.352H (f) includes loss or damage caused outside the ship by contamination resulting from escape or discharge of oil from the ship, wherever such escape or discharge occurs, provided that compensation for impairment of environment other than losses or profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken. It also includes the costs of preventive measures and further loss or damage caused by such measures. What is exactly meant by reasonable measures of reinstatement is nebulous and deliberately left so as to suit the circumstances of each case. Would the losses suffered by the people living along the coast line and fishermen who make it their living come within the terms loss or damage? Would the loss suffered by the Port authorities as a result of closing down of the Port due to oil spill pollution be eligible under the terms loss or damage? Who will in such cases represent the community interests collectively? Can such a duty be relegated to State with disastrous consequences as was seen in Bhopal tragedy claims?
Sec.352 I deal with liability of the owner and no claim for pollution damage can be made against any owner other wise than in accordance with the provisions of that section. Owner has been defined as the person registered a owner of the ship, in the absence of registration, the person owning the ship or in the case of a ship owned by a foreign state the person registered in that state as the operator of the ship[Sec.352H (d)]. It has been laid down that owner shall be liable for any pollution damage caused by oil which had escaped or been discharged from the ship as a result of the incident. The term ‘Incident’ therein means any occurrence or series of occurrences having the same origin which causes pollution damage or creates a grave and imminent threat of causing such damage [Sec.352H (a)]. Subsection (2) to Sec.352 I lays down that no liability for pollution damage shall attach to the owner if he proves that pollution damage resulted from circumstances beyond his control to prevent which have been enumerates as war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character was wholly caused by an act or omission done with the intent to cause such damage by any other person or was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in exercise of its functions in that behalf.
In cases where there is oil spill and pollution due to collision of two or more ships, it would be interesting to examine the inter play of Sec.286 and Sec. 352 I (2) (b). Sec.286 as we have seen earlier, proceeds to create the liability regime whereby, if any damage to person or property arises from the non observance by any ship of any of the collision regulations, the damage shall be deemed to have been occasioned by the willful default of the person in charge of the ship. On the other hand, Sec. 352 I (2) (b) stipulates that no liability for pollution damage shall attach to the owner if he proves that pollution damage was wholly caused by an act or omission done with the intent to cause such damage by any other person. So on the one side law provides a strict or absolute liability regime upon a ship-owner and on the other hand the owner of the other vessel which pollutes due to the collision is called upon to prove that pollution damage was wholly caused by an act or omission done with the intent to cause such damage by the other.
A proposition akin to contributory negligence but of a higher and rigorous grade is seen laid down in Sec. 352 I (3) where there could be a total exoneration of the liability of the ship owner if he can prove that the pollution damage either wholly or partly resulted from an act or omission done with the intent to cause such damage by the person who suffered damage or from the negligence of that person. For such damages that are not reasonably separable arising out of an incident involving two or more ships causing pollution damage, the owners of all ships are jointly and severally liable for such damage unless entitled to exoneration as stated above [Sec. 352 I (4)]. No claim for compensation for pollution damage can be made against the servants or agents of the owner or the members of the crew, the pilot or any other person who without being a member of the crew renders service for the ship, any charterer or manager or operator of the ship any person performing salvage operations under specified conditions any person taking preventive measure and against servants and agents of all the above said persons [Sec. 352 I (6)] unless the incident causing the damage occurred as a result of their personal act or omission committed or made with the intent to cause such damage or recklessly and with knowledge that such damage would probably result.
All the above said clauses insisting on the mental element or knowledge are capable of giving rise to complex issues in cases involving collision and consequent oil pollution in view of the strict liability regime under Sec.286.
Of utmost importance is the limitation of liability provision with respect to pollution damage. Sec. 352 J provides that the owner shall be entitled to limit his liability under Part XB in respect of any one or more incident as may be prescribed. The owner looses his right to limit the liability if it is proved that the incident causing pollution damage occurred as a result of his personal act or omission committed or made with the intent to cause such damage or recklessly and with knowledge that such damage would probably result [Sec. 352 J (2)]. A party contending that the owner is not entitled to limit his liability in view of his ‘personal’ act or omission will have an uphill task in the Court. Any owner who desires to avail the benefit of limitation of his liability as above had to make an application to the High Court for constitution of a limitation fund. Such fund may be constituted either by depositing the sum with the High Court or by furnishing bank guarantee or such other security as in the opinion of the High Court is satisfactory.
The Fund Convention laid down in Part X C provides for contribution to the Fund in respect of contributing oil carried by sea to ports or terminal installations in India. Fund has been defied as the International Oil Pollution Compensation Fund established under the Fund Convention, 1992. The persons liable to pay contributions to the fund are in case of in case of contributing oil imported into India, the importer and in any other case by the person whom the oil is received in India. The said part further deals with contributions payable by persons to the fund, liability of the fund etc. The said provisions may not be much relevant for our discussion except for Sec.352W which provides that where any person suffering pollution damage has been unable to obtain full and adequate compensation for damage under the terms of the Liability Convention on any grounds specified in the Fund Convention, the Fund shall be liable for pollution damage in accordance with the provisions of the Fund Convention.
Part IXA relating to International Convention for the Prevention of Pollution from Ships, 1973 assumes relevance because it applies to a wide category of ships and does not limit itself to tankers as we saw in Part X B. Under Sec. 356A the applicability has been laid down as to be applicable to oil tankers of one hundred and fifty tons gross or more and other ships of four hundred tons gross or more and off shore installations and incidents of marine casualty or acts relating to such casualty occurring with grave and imminent danager to Indian coast line or related interests from pollution or threat of pollution in the sea by deliberate, negligent or accidental release of oil, ballast water, noxious liquid and other harmful substances into sea including such incidents occurring on the High Seas. Thus it is evident that Part IXA has a wider sweep and applicability.
Cargo as defined in this part includes ballast and ships stores and fuel and ship means vessels of any type whatsoever including floating platforms. The relevant provision that could be pressed in to service when a contraventions happens is Sec. 356H which empowers the DG to detail the oil tanker or ship until the causes of such contravention is removed to the satisfaction of the DG and also the DG may proceed against the tanker or other ship for recovery of cost of pollution damage, if any, and the cost of prevention of pollution damage cleaning of such pollution. Sec. 356 J enumerates the powers of the Central Government to issue notice to the owner , agent, master or charterer of the polluting ship and also to require such person to take action relating to a catena of matters enumerated therein which includes action to disperse the oil or noxious liquid substance slicks on the surface of the sea in such manner as may be specified in the notice [See generally Sec. 356 J (1) (2)].
Central Government is also empowered under Sec. 356 K to take measures for preventing or containing oil or noxious liquid substance pollution. There is a deeming provision therein under Sub. Sec. (2) whereby any expenditure or liability incurred by the Central Government in or by reason of the exercise of powers conferred on it in relation to any ship or its cargo of oil that had escaped or was discharged into the sea shall be a debt due to the central Government by the person or persons on whom notice was served and may be recovered by detaining the ship. Rest of the provisions in the said part are for vesting ancillary powers on the central government to give directions to certain ships to render certain services, oil pollution cess, refusal of port clearance until cess is remitted, power to make rules etc.
There is lack of a comprehensive law in India for dealing with marine pollution from collisions at sea. The existing law will prove too inadequate to deal with incidents like the one that happened two days back off the Mumbai coast involving two Foreign Flag vessels. If the oil slick is huge, as in cases involving tankers, then the entire coast line of India along the point of incidence could be reduced to mere waste land. The human catastrophe that would follow is unimaginable. The provisions of law discussed above does not envisage or prepare for such a grave eventuality. Detaining the vessels especially those flying flags of convenience will be of little or no use at all. The owner would conveniently abandon the vessel and the state will be left with the job of cleaning up the mess, if at all it could be cleaned and also will have to provide for multitudes who will be bereft of not only their avocation but also their dwelling houses. The ecological disaster would take decades to be remedied and many species of flora and fauna will be lost for ever.
There are statements in the media that carelessness of the port authorities had contributed to the present accident since the vessels involved could not establish any radio communication as they were using two different radio frequencies. Whatever that may be , authorities have now awaken from their slumber to the stark realization that they have neither the technical competence nor a legal frame work in place to deal with such a causality.
There is a need for urgent reassessment and comprehensive restatement of law regarding marine pollution from collisions ate sea. The mechanical incorporation of the provisions of international conventions in to our legal system as is seen in Part XB, X C and XI A is bound to fail unless we temper them with the stark realities of our sub continent and out socio- economic milieu. The present incident is just a wake up call. Is any body listening?
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