More than two months have passed since the destruction of the MV X-Press Pearl. An interim grant was received and distributed to the affected fishermen. Many investigations are apparently taking place. However, let us not be complacent about this, and in turn, observe the current state of affairs for a better understanding. As expected, people are slowly losing their interest, the media is focusing on other eventful broadcasts, and the bitter memories of the Pearl are gradually fading away from the collective mindset. Therefore, the question remains as to whether we, as citizens, are duly exercising our duties in dealing with the aftermath of the incident.
The most recent updates
Plenty of discussions and webinars were held, in which both foreign and national academics, environmentalists, scientists, attorneys, and various other speakers discussed about the destruction that has happened and how the Government of Sri Lanka (GoSL) can claim compensation for the damages that have been caused to the fishing community, and marine and coastal environments, and for the extinguishing of the fire, towing, and coastline cleaning missions that were carried out for days. Sri Lanka sought relief from international and national legislative frameworks. Accordingly, the applicable international framework can be summarised as follows: International maritime laws – the International Convention for the Prevention of Pollution from Ships (MARPOL) Annex I – VI, the International Convention on Oil Pollution Preparedness, Response and Co-operation (OPRC), the International Convention on Civil Liability for Bunker Oil Pollution Damage (BUNKER), and the International Convention on the Control of Harmful Anti-Fouling Systems on Ships (HAFS)The law of the seas – the United Nations Convention on the Law of the Sea (UNCLOS) and the International Convention for the Safety of Life at Sea (SOLAS)International environmental law related concepts and principles – the polluter pays principle, State sovereignty, State responsibility, the public trust doctrine, the precautionary principle and Sustainable Development Goal 14 (SDG 14): Life Below Water on conserving and sustainably using the oceans, seas, and marine resources The national statutory framework includes the Marine Pollution Prevention Act, the Merchant Shipping Act, the Sri Lanka Ports Authority Act, the Fisheries and Aquatic Resources Act, the Coast Conservation and Coastal Resource Management Act, the National Environmental Act, the Fauna and Flora Protection Ordinance and the Penal Code. Therefore, it is certain that if supported with strong evidence, Sri Lanka can claim significant remuneration for the damages caused by the X-Press Pearl. On 12 July, The Morning reported that the Justice Ministry had received the initial interim claim of $ 3.6 million, of which $ 2 million (approximately Rs. 420 million) would be distributed among the fishermen who were directly affected due to the disaster. The relief is supposed to cover up their loss of income and the harm caused to any equipment and boats following the incident, due to the debris. There is also a Fundamental Rights petition which seeks an order from the Supreme Court for the Government to use at least 70% of Sri Lanka’s compensation for the protection of the Ocean affected by the incident.
The destruction of marine life
Fortunately, the fishing community faced damages which can be remunerated, unlike the marine creatures that lost their lives. It was reported that on 30 July, the Attorney General informed the Court of the most recent number of animal deaths, including 417 marine turtles, 48 dolphins, and eight whales which had died and washed ashore. The number is not definite, and there is a possibility that more dead animals will be found in the days to come. It is also expressed by the experts that the actual fatalities could be tenfold of the discovered number, since all the dead marine animals do not reach coastlines. Therefore, it is challenging to assess the damages that have been caused to the marine ecosystem in Sri Lanka. The Marine Environment Protection Authority (MEPA) is of the opinion that the deaths of marine animals could be due to burns, harm caused by exposure to chemicals and asphyxiation owing to experiencing difficulties in breathing. There were dead fish which had many nurdles stuck in their gills and in their stomach. These nurdles are considered to be non-toxic. However, consuming them in considerable quantities could be life threatening to species of fish. Observations made on the deaths of the turtles indicated that the initial deaths were caused by burns while the current deaths are likely to be caused by difficulties in breathing. This could be as a result of exposure to the chemicals that were mixed with the water. There are only seven types of sea turtles in the entire world, of which five species are found in Sri Lanka, and all five species are listed as endangered on the national red list. Hence, 417 dead turtles is an alarming number and leaves a question as to how the loss of their lives can be recovered. Destruction caused to marine ecosystems is not limited to wildlife, but also includes the coral reefs and aquatic environment. The coral reefs are considered to be highly sensitive ecosystems. Therefore, the chemical spill and the debris of the Pearl, are most likely to have caused considerable harm to the marine ecosystem, which must be properly ascertained. Damages can be demanded for civil liability specified under Section 34 of the Marine Pollution Prevention Act No. 35 of 2008 for the pollution that has resulted due to this incident. Accordingly, as per Section 34(1), any damages caused by the discharge, escape or dumping of any oil, harmful substances or other pollutant, and the costs of any measures taken for the purposes of preventing, reducing, or removing any damage caused by the discharge, escape or dumping of any oil, harmful substance or pollutant into the territorial waters of Sri Lanka can be claimed. Section 34(2)(d) specifically refers to the protection and conservation of living marine resources and wildlife.
Our duty as responsible citizens
First and foremost, the major responsibilities are now held by the Government officials and any other person who represents Sri Lanka in any platform or media to discuss the consequences of this incident. The common responsibility of both these parties is to ensure that they do not hinder the attempts of claiming damages for the destruction that has been caused. Their failure to discharge their duties properly, whether it is related to causing an undue delay in disclosing information, tampering with evidence, or making unwarranted statements, could prove to be heavily disadvantageous at this stage. A few such instances are mentioned as follows: The necroscopies of the dead animals are still not released even after two months, which is clearly a hindrance slowing down the entire legal process. Whether this delay is deliberate or not is a question which is yet to be answered. Some parties also claim that the necessary technology is not available in Sri Lanka. Therefore, the Justice Ministry has already said that international assistance is sought to investigate the matters. Once again, it cannot be determined as to how long this process will take. The authorities will have to first select the intuition they are seeking help from, followed by the actual investigation and data finalisation procedures. Nevertheless, the ultimate disadvantage might be for the claim for damages, since it would take an unreasonable period of time just to determine the exact cause of death of these marine animals. There were also allegations that committee members who were supposed to analyse data and submit to the Governmental authorities, had disappeared after collecting such data. If people who are answerable to the Government fail to discharge their duties, it would only end up harming the country. They must be required to strictly adhere to their duties and responsibilities in assisting Sri Lanka without creating further problems. Moreover, as The Morning reported on 18 July, communication data from 1 May to 10 June, exchanged between the Captain of the MV X-Press Pearl and the Harbour Master, is apparently lost. It is not yet revealed as to whether the data had been deleted deliberately or out of sheer negligence, since the investigations are still taking place.
Either way, this conversation undoubtedly contains important evidence that is required for the claims related procedures and losing such crucial information is absurd. While waiting for the official reports, there were also instances where irresponsible parties made several premature statements. One example is that there is no harm caused to the marine ecosystem of the country from the X-Press Pearl destruction. If any person states that dead turtles, dolphins, and whales found in the coastline after the incident is a usual phenomenon which absolutely has nothing to do with the MV X-Press Pearl, then they are trying to undermine the efforts of the authorities who are making a claim about the damages caused by the ship, in particular, the MEPA. Such unwarranted claims made by any person or representative could be counter-productive to the GoSL. Therefore, the Government and speakers who are discussing this incident must ensure that they do not make such comments before the official documents are released. Furthermore, such gratuitous declarations are completely against the expert opinions which claim that the fire and the subsequent chemical spill from MV X-Press Pearl is undoubtedly the cause of deaths of the marine animals. It was evident that some irresponsible parties argue otherwise. One such argument is that only the larger sea mammals and turtles have been reported to have died. But such arguments are completely illogical. Firstly, the species of the marine animals that were found dead are the species that are found in the shallow waters. Secondly, when smaller fish die, there is the possibility that their bodies decompose in salt water. Thirdly, as it was already mentioned, all the dead marine animals are not washed up onto the beaches. Therefore, any person sharing such illogical opinions must be mindful of what they are conveying.
Most importantly, it is up to the Court to decide whether the post-mortem reports show that this unusually large amount of deaths of marine creatures is due to the pollution caused by the ship. The duty of the authorities is to lead the necessary evidence including the post-mortem and other evidence while the technical people including the scientists, should assist the process rather than hinder the process by making unwarranted and premature claims based on whimsical ideas. While some individuals get involved in the matter more than required, stoic silence is exhibited by certain segments of the scientific community, existing legal persons and the technical persons with the scientific knowledge who can actually assist in these procedures. It was also noticed that some counter claims made by certain people posing as scientists denoting that this is not a serious environmental crisis, can be used against the Government in a claim. It is also advised that the claim for damages must not be concluded depending on the events that have taken place so far. On 22 July, The Morning reported that an oil sheen was visible around the debris of the MV X-Press Pearl. This means that further damages will be sustained to the marine wildlife and ecosystems, since the oil leak is still continuing. Therefore, it is still premature to conclude the damages, and the relevant authorities must continue to observe the damages in their short-term, medium-term, and long-term effects, in this kind of instance. Accordingly, a major responsibility lies with the media, who should continuously give updates on current affairs relating to this matter. For instance, updates on the oil spill, dead marine animals washed up ashore, updates on whether the Government authorities are duly fulfilling or neglecting their responsibilities, etc. They have the obligation to keep the public updated on the harm caused in the aftermath of the incident. Furthermore, the public must show their interest in knowing what is taking place, since this destruction has caused irreversible damages to the environment and there is a possibility that it would take decades to restore these ecosystems. They must demand explanations as to how the reliefs are distributed and how the Government is planning to make amends for the pollution in the environment. The environment and the wildlife cannot represent themselves or communicate. Therefore, it is the responsibility of each and every member of the society to act beyond their capacity to ensure that the environment and wildlife survive for the years to come, for the sake of our own future generations.
Nation Online 2021.