By R. Devapriya –
On 20th May, news reached about the fire on ship “X-Press Pearl” which had entered Colombo out harbor. This ship belongs to EOS RO Pte Ltd, a Singaporean company but the ship had been hired for maritime transportation of cargo by renowned X-Press Feeders Company which has been ranked 17th top shipping company. Available information indicates that X-Press Feeders Company has given the ship building order (“X-Press Pearl) to a Chinese company known as Zhoushan Changhong International Shipyard Company Ltd. The usual practice for giant shipping lines is to register and sail their ships under small companies in different names. They do so to restrict huge compensation payable for serious marine accidents by showing their meagre income and assets of the smaller shipping company.
According to the shipping agent, on board the ship, there had been 1486 containers, inclusive of 25 metric tons of nitric acid, the leakage of which had been the cause of fire. Nevertheless, unconfirmed reports reveal that there had been 87 containers with raw material used for making polyethylene and plastic, 88 urea laden containers, 42 containers with caustic soda and 8 containers with lead. In addition, the ship had been carrying chemicals like ethanol, methanol and sodium monoxide, 348 tons of petroleum and lubricants, electronic items, rubber and certain raw material including finished products. All these 195 odd items had been in containers. Anyway, there had been containers laden with a total of 42 different kinds of chemicals.
The ship started its voyage from Dubai Jebel Ali harbor on 10th May and On 11th May at Hamad seaport in Qatar, the ship crew had reported of a leakage of nitric acid, which is an inflammable substance carried in the containers. However, shortage of workers during Ramadan season had made the Qatari authorities to ignore the request. Thereafter, X-Press Pearl had set sail to India and had reached Hazeera harbor in Gujarat on 15th of May, belonging to Adani Pte Ltd. Inadequate facility coupled with hazardous nature of the inflammable substance leaking inside the ship had made Indian harbor authorities to reject the request for mending. Hence, the ship had diverted course to sail towards Colombo and had reached Colombo out harbor to be anchored on 19th May.
Neglect of duties by the shipping company and other responsible parties
As both Qatari and Indian harbor authorities had failed to provide assistance, the captain of the ship should have immediately contacted the shipping company or the Marine cargo recovery agent for relief. Without notifying them about the looming fire risk, the ship had sailed for eight consecutive days to reach Colombo out harbor, purely to avoid payments.
Sri Lankan Port Authority (SLPA) claims that in accordance with the agreements in force within the harbors in the Indian Ocean, Hazeera harbor in India had failed in its duties to provide advance notice of the impending fire risk to the ship, before leaving its port for Colombo. More so, it had been revealed that neither the crew nor the shipping agent in Sri Lanka had given advance notice to SLPA about the looming danger on board the ship. Nevertheless, they have informed SLPA only about containing the nitric acid leak. SLPA further claims that this information had been notified to them only at the eleventh hour. SLPA also claims, had Hazeera harbor passed down timely advance notice about the crisis, SLPA would have either prevented the ship entering Sri Lankan waters or would have been in preparedness to meet any contingency. On the other hand, had the Shipping company or the crew given early notice about the hazardous inflammable substance being carried in the containers, SLPA would have had prepared for the right method of fire fighting to douse the fire. Hence, in view of poor communications, there had been a delay in decision making about choosing the right method for dousing the fire.
Neglect of duties by Sri Lankan authorities
It is claimed that the Sri Lankan authorities did not have any idea about the hazardous chemicals in the ship’s cargo. Later, when the Sri Lankan officials came to know of the hazardous chemical, they embarked the ship to inspect the nitric acid leakage. On embarking the ship, the crew had said that the chamber had been filled with carbon dioxide and the ship had depleted all its carbon dioxide stocks. Local officials at this point should have taken immediate measure to replenish the stock of carbon dioxide to the vessel. But this had not taken place.
When dousing a fire on a ship, various precautionary measures need to be taken and especially before extinguishing a blaze, a barricade is created surrounding the ship using items like buoys to have a safety zone. In this instance, local authorities had failed to take this measure. Although hazardous chemicals, petroleum products and all other items had to be unloaded and emptied to prevent them getting mixed up with the ocean, this procedure had not been followed. This clearly shows that, before starting to extinguish the fire, the fire-fighters had not been mindful of finding out the real scientific cause for the fire in the ship. Hence fire has spread fast while extinguishing.
However, the Government of Sri Lanka (GOSL) had found it difficult to contain the fire and has taken the situation for granted, leaving the fire to spread gradually throughout the ship for several days. Meanwhile, GOSL had not made any effort to get assistance from neighbouring countries. However, on September 2020, when the ship “New Diamond” was ablaze, GOSL got the assistance of neighbouring India to extinguish the blaze. Later, a part of the compensation received for the damage had to be shared with India. Hence, we doubt that this time, GOSL had refrained from seeking assistance from the neighbouring countries with the intention of obtaining the full compensation.
Similarly, it seems that GOSL had not made a minuscule of effort to seek the intervention of even local institutions dealing in such matters. In the meantime, the marine cargo recovery agents had inspected the ship to observe water seeping into the engine room and had cautioned the authorities about the prevailing situation. What is worse, the local officials failed to heed this advice. Subsequently, when the ship started to sink, on the following day President Gotabaya Rajapakshe had ordered to tow the ill-fated ship to mid sea area.
All in all, throughout the whole ordeal, GOSL and the subject Minister in charge seemed to have had no contingency plans or had any foresight to manage this crisis. At a time when assistance of several ministries and foreign organizations had to be mustered and needed most, no proper coordination was seen to take place. Even so, GOSL and the state minister of Urban Development, Coast Conservation, Waste Disposal and Public Sanitation minister for coastal protection were continuously issuing irresponsible communiques to justify the whole ordeal, regardless of the extent of the damage to the environment, marine life etc. We have a reasonable doubt that GOSL from the start had been willfully negligent and had turned a blind eye to the disaster as their focus was on getting compensation. Past experiences of this nature in Sri Lankan waters bear ample testimony in this regard and further confirm this doubt. Based on the above weaknesses of GOSL, shipping agents are now readying to pass the total blame on to Sri Lankan authorities.
Legal background and procedural activities
Although Marine Environment Protection Authority (MEPA) was aware of “X-Press Pearl” blaze with a load of hazardous substances, being anchored in Colombo out harbor for 11 days, neither instructions were issued nor action had been initiated to arrest and take the ship into custody. At least, MEPA should have instituted legal action through Attorney General’s Department that has the powers to sue the shipping agents or the shipping company in Commercial high court of Colombo.
In any event, provisions are there to institute legal action against the shipping agents or the company, even before the ship had sunk or before the blaze took place, forecasting the likely danger as provided for in provisions of section 38 of the act number 2008/35. Accordingly, owners of the ship could have been brought before the law to get their early intervention to prevent the possible disaster or to make them pay a deposit as a guaranty, in the event need arises to pay a hefty compensation. Nevertheless, as timely legal intervention had not taken place, undue influences are being made on the procedural process to avoid payment of compensation by the shipping company for the current marine pollution. Meanwhile, on the part of GOSL, in respect of the overall damage, thus far no legal action has been instituted against the shipping company, agent or the relevant parties. Instead, the local authorities seem to be busy still collecting information and evidence on the damage.
It should be pointed out that sufficient international conventions and agreements are in place to prevent marine pollution, as well as for post marine pollution of this nature. The procedures to be followed by all key stakeholders are clearly laid down therein. However, International Maritime Organization (IMO) has been in the forefront and responsible for acting in such situations. One could identify the relevant clauses in the convention for marine pollution caused by “X- Press Pearl” like the safety and protection of marine life. viz: SOLAS 1974- Safety of life at sea. Sea pollution due to ships sailing in the ocean viz: MARPOL 73/78 Prevention of pollution from ships.
Importantly, Sri Lanka is a signatory to the above-mentioned conventions and agreements. Although, certain laws are incorporated into our legislatures, much remains to be done to update our statute books. Interestingly, locally there is a lacuna in certain areas of the laws as against international improvements in maritime laws to face situations like the “X-Press Pearl” disaster. This is another reason for the GOSL’s deadlock in forging ahead with legal proceedings. But Sri Lanka is not a signatory to the international convention on maritime transportation of hazardous chemicals vide: HNS 1996- Hazardous and noxious substances by sea convention. According to this convention, should chemicals mix with the ocean during any marine transportation, a compensation is payable by the owner of the ship. Additionally, if the compensation payable is considered insufficient, the affected party could legally demand an additional payment up to a maximum sum of 380 million US dollars. However, many poor countries including Sri Lanka had not signed this convention as they are not in a position and cannot afford to contribute such amounts to this fund. Hence, law relating to marine transportation of hazardous chemicals had not been incorporated into Sri Lanka’s statute books.
The economic cost
This disaster has a huge impact on Sri Lankan economy, especially in the fisheries sector. Fish consumption has drastically dropped for fear of chemical contamination and consumers have scaled down buying fish. Hence, fish vendors are in immense financial difficulty and finding it unable to sell their daily catch. Around 60 percent of the fish harvested for consumption is from the shallow waters of highly contaminated zone of Sri Lankan waters. Loss incurred by the fishing sector from 21st May to 03rd June is estimated to be Sri Lankan Rs. 1076 million. A sum of around Rs.519 million has been spent during this period on the fisheries industry for breeding, cleaning hatcheries and allied tasks. There were also plans to clean 75 field marine vegetation spots.
Local needs of fisheries products including exports to overseas have been adversely affected. Sri Lankan crabs, a delicacy in many countries are in high demand and exported overseas. But today the damage caused to the shallow waters, has posed a threat to crab export. Negombo lagoon and the local shrimp breeding areas in the western coast of Sri Lanka have been adversely affected by the recent marine pollution. Although the daily losses to the fishing industry can be estimated in rupees and cents, overall losses to other aspects of the fisheries sector and its impact on our economy have yet to be estimated.
Among other things, Sri Lanka occupies a prominent place in tourism and classified as an ideal tourist destination. Through tourism industry, Sri Lanka earns a major share of foreign exchange. This marine disaster has severely affected the tourism industry, rendering colossal damage to the beaches, marine life, coral species in the reef etc. As a result, there is a drop in overseas and as local tourists visiting the sea beaches. At the same time, many poor families involved directly and indirectly in tourism industry are on the brink of losing their livelihood.
On the other hand, the sunken ship is an impediment to the routine activities of the harbor. According to global rankings, Colombo harbor occupies a top place out of the selected few high-ranking harbors. Importantly, the strategic location of the harbor provides easy access to get connected to East and west Asia, Gulf regions and East Africa. Hence, the impediment to incoming and outgoing vessels to Colombo harbor is incurring a great loss to daily income of Colombo port.