India cleans up

POLLUTION of the sea by oil is a problem of national, regional and international concern. It has an irreparable ecological impact on the marine environment unless appropriate and timely steps are taken to prevent, mitigate, control, remove or combat it. Environmental disasters, by their nature, can be devastating, especially in developing and under-developed countries where risk prevention and management is poor and where resources are limited. Prevention and management of these disasters becomes even more significant in a country like India which is surrounded by water on three sides and has eight major commercial docks.

Remedies under the Indian legal system

Indian shipping policy is not isolated or any different from the global maritime environment. The main source of maritime law, besides domestic law, has been international conventions to which India is a signatory. Under the Constitution of India, merchant shipping is dealt with by the Ministry of Surface Transport. The principal legislation dealing with the combating of oil pollution is;

• The Merchant Shipping Act of 1958 (MS Act)
• The Marine Insurance Act of 1963
• The Merchant Shipping (Prevention of Pollution of the Sea by Oil) Rules, 1974.

Civil liability

The MS Act limits the liability of the shipowner in case of injury to property, or personal injury claims. Section 352 I of the Act deals with the extent of the liability of the shipowner. However, the shipowner is exempted from liability in certain specified cases. The provisions incorporated therein apply to every Indian ship wherever it may be, as well as to every foreign ship at a port or place in India or within the territorial waters of India.

There are provisions under the MS Act to limit the liability of the shipowner in case of oil pollution damage. However, if the incident occurred as a result of the actual fault or privity of the owner, the owner is not entitled to such limitation. Additionally, the owner has to apply to the high court for constitution of a limitation fund to avail itself of the benefit of the above limitation of liability. India is currently considering amending the MS Act to increase the level of limitation of liability.

Furthermore, the MS Act prevents the discharge of oil or oily mixtures into the sea anywhere within the coastal waters of India. Violation of this provision attracts a penalty which may extend to $10,000.

Role of the port authorities

Section 331 of the MS Act regulates the carriage of dangerous goods, while sending an unseaworthy ship to sea is an offence under Section 334 of the Act. Also, the MS Act enables the state to detain unsafe and unseaworthy ships. However, if a ship is wrongly detained, the state is liable to pay costs and damages. Additionally, the MS Act provides for the creation of an oil pollution tax which is used to provide oil reception facilities and to purchase equipment and materials to combat oil pollution at various ports in India. A ship cannot be granted port clearance until the requisite amount of tax has been paid.

The MS Act does not apply to pollution on the high seas. However, for a peninsular country like India, it is extremely important to have provisions to prevent pollution of the high seas adjoining its EEZ. The International Convention relating to Intervention on the High Seas in case of Pollution Casualties, 1969, extends the jurisdiction of a coastal state to the high seas, but only when it poses a grave and imminent danger to fishing, tourism and wildlife. India has not yet ratified this convention.

Furthermore, the MS Act empowers the court to hold formal investigations, arrest witnesses, board vessels, commit trial, and censure or remove masters, mates or engineer. A marine board can be appointed if the casualty occurs in foreign waters.

These provisions play an important role in combating pollution. However, the statute needs certain amendments. For instance, it would be desirable to constitute a formal board of investigation, headed by a judge or some other suitably qualified person, instead of giving control to the court, which takes far too long coming to a conclusion.

India is not a party to the convention on the Arrest of Ships. The convention puts power over maritime liens in the hands of the signatories. According to the International Convention dealing with the Arrest of Ships, 1952, the ships against which maritime claim are brought can be arrested. India has no specific provision dealing with maritime liens and has been following UK law under which courts with admiralty jurisdiction are competent to deal with cases pertaining to maritime liens. With the enactment of the Administration of Justice Act, 1956 and the Supreme Courts Act, 1981, the UK has brought maritime lien cases in line with modern practices. India urgently needs to do the same. India should also ratify the international conventions of 1926 and 1967 dealing with maritime claims.

Clean-up costs

The persons and entities responsible for oil pollution must compensate not only for the actual damage caused by the pollution but also for the clean-up costs. The international liability scheme is governed by the following conventions:

• The Fund Convention, 1971/1992;
• CLC, 1969/1992.

India ratified the International Convention on the establishment of an International Fund for Oil Pollution Damage in 1990. The fund provides compensation for oil pollution damage resulting from oil discharge from tankers in members states. The 1971 fund is able to pay compensation only in respect of claims fulfilling the criteria for admissibility laid down in the CLC and Fund Conventions. However, certain jurisdictions, such as Australia, are trying to increase the amount of compensation.

Criminal liability

The shipowner can also be criminally liable in certain cases. Under the CLC and Fund conventions, the shipowner was not criminally liable. However, the International Convention for the Prevention of Pollution from Ships, 1973 (ICPPS), in an attempt to deter shipowners, introduced criminal liability. ICPPS covers pollution by oil, chemicals, harmful substances in packaged form, sewage and garbage etc. It deals with operational pollution and some aspects of accidental pollution too. It provides that any violation within the jurisdiction of any state which is a party to the convention shall be punishable under the law of that state. Under ICPPS, very limited discharge is permitted but, when the discharge is due to force majeure, the polluter is exempted. India ratified ICPPS in 1986.

Marine insurance

Section 352 N of the MS Act makes it compulsory for the owner of a ship which carries 2,000 tons or more of oil to have suitable insurance or some other form of financial guarantee. Marine insurance, under the Act, is basically a contract embodied in a policy. It should be noted that the definition of the term ‘contract of marine insurance’ under the Marine Insurance Act, 1963 (MI Act) is the same as found in Section 1 of the (English) Marine Insurance Act. Under the MI Act, a contract of marine insurance must be embodied in a policy. Otherwise, it is inadmissible in evidence.

The MI Act further provides that, if the contract of marine insurance expressly includes any liability to third parties, the measure of indemnity would be the amount paid or payable by the assured to such third party in respect of such liability. India urgently needs to develop its insurance regime in tune with the rest of the world. For instance, it should be mandatory to include coverage for liabilities to third parties in a contract for maritime insurance.

Prevention measures by Indian coast guards

Marine environment security is a statutory function of a coast guard under the Coast Guard Act, 1978. The coast guard identifies marine environment security through protection, preservation, prevention of the marine environment and control of marine pollution.

The Indian coast guard is the designated national authority for oil spill response in Indian waters under the National Oil Spill Disaster Contingency Plan. There have been twelve spill incidents so far where the coast guard has undertaken response actions in Indian waters, including the Lajpat Rai in Bombay Port (1984) and the Puppy (1989) which occurred offshore but led to shoreline oiling. Oil from the Maersk Navigator spill in 1993 was monitored by coast guard aircraft and treated with dispersant from a coast guard cutter.

Oil pollution affects the human community at large. It is not only the owner, crew, government, port authority or industry adjoining the sea who are affected by it, but society as a whole. Any harm to an industry or the environment of a port ultimately affects the citizens of a nation too. It is vital that civil and criminal liability regimes are developed to deal with oil pollution but, more importantly, steps should be taken to prevent pollution in any form or manner in the first place.