By P.K.Balachandran
Colombo, July 24 – In a landmark judgement delivered on Thursday, the Sri Lankan Supreme Court ordered the X-Press Pearl group, the Singapore-based owners of the drowned container vessel MV X-Press Pearl, to pay USD 1 billion as compensation within a year for causing severe pollution of the seas off Colombo in June 2021.
The container vessel MV X-Press Pearl was carrying dangerous cargo. Upon detection of a nitric acid leak from one of the containers it had on board, the Master of the vessel made requests to the Ports of Hamad and Hazira seeking permission to discharge the nitric acid.
But when the request was turned down by the two ports, the vessel continued its voyage to Colombo. Upon reaching Colombo it made another request to discharge the contents of the leaking container. But on 20.05.2021, a fire was reported on-board the vessel, which was initially brought under control, but it re-ignited and continued for several days, until the vessel sank off Pamunugama village on 02.06.2021. The sinking vessel caused the worst disaster ever to the marine environment of Sri Lanka.
Massive quantities of toxic chemicals, including 46,960 bags of Low-Density and High-Density Poly Ethylene in 20 containers, were spilled into the sea. At least 70-75 billion plastic nurdles were released into Sri Lanka’s Western coastal belt.
The pollution resulted in the death of 417 turtles, 48 dolphins, eight 8 whales and a large number of marine species which were washed ashore. Analysis of the carcasses established the nexus of the causes of death to marine pollution.
Due to the heavy marine pollution, a fishing ban was imposed by the Sri Lankan government for well over a year in the Western coastal area. The ban deprived fisher folk of their income, livelihood and their right to engage in lawful employment.
The five-member Supreme Court bench headed by Chief Justice Murdu Fernando ruled that the first instalment of the compensation should be paid on or before 23rd September 2025.
Sea Consortium Lanka (Pvt.) Ltd., the Sri Lankan agents of the vessel, has been ordered to declare the names and present addresses and other contact details of all (a) Directors, and (b) principal executive officers of the company who were involved in different matters relating to MV X-Press Pearl, as at 2nd June 2021.
Compensation Commission and Committee
The court ordered the establishment of the MV X-Press Pearl Compensation Commission and appointed a retired Justice of the Supreme Court, E.A.G.R. Amarasekera, as its Chairman. It also established and constituted the MV X-Press Pearl Marine and Coastal Environment Restoration and Protection Committee.
The Chairpersons and members of the MV X-Press Pearl Compensation Commission and the MV X-Press Pearl Marine and Coastal Environment Restoration and Protection Committee and independent experts should be jointly responsible for the execution of the respective mandates entrusted to such Commission and Committee, and shall be answerable to the Supreme Court.
This Court directed the Attorney General to give necessary advice to the Criminal Investigation Department (CID) to conduct further investigations and conclude such investigations within a period not exceeding three months from the date of this Judgment into all offences disclosed, including offences already identified and in respect of which investigations are ongoing, offences under the Penal Code, the laws relating to the marine and coastal environment, and thereafter consider the institution of criminal proceedings against all offenders.
The Director of the CID has been directed to conduct investigations relating to matters in respect of which the Attorney General gives advice, and ensure the completion of such investigations within a period of not exceeding three months.
The Attorney General was directed to report to the Supreme Court once in every three months about investigational and prosecutorial action taken by the Attorney General to give effect to the orders of the court.
The Attorney General was directed to undertake an analysis of international law, norms and standards relating to shipping and related maritime affairs and the applicable domestic laws and regulations, and advise the Government of the need to enact or amend existing legislation, regulations and rules, should there be a need to ensure compliance with international law, norms and standards.
The Attorney General was directed, in consultation with the relevant competent authorities including independent experts, to undertake a study and advise the Government on the need to amend legislation including the Marine Pollution Prevention Act and the Coast Conservation Act should there be a need to do so, for the purpose of bringing such legislation in line with contemporary international norms and standards.
The Attorney General was directed to advice the Director of the CID to take necessary steps in terms of the law, to ensure that (a) individuals whom this Judgment has referred to, to be deemed to be responsible to give effect to the directions for the payment of compensation, are available in Sri Lanka, should the need arise to take action against them for non-compliance with any direction made against Sea Consortium Lanka (Pvt.) Ltd. or any other party of the MV X-Press Pearl group.
The Director General of the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) is directed to conduct a fresh investigation into the allegations of bribery and corruption referred to in this judgment and deviate from the unnecessary investigation that appears to have been launched into the causes of the incident of pollution relating to MV X-Press Pearl.
In that regard, the DG CIABOC is directed to pay attention inter alia to (a) the contents of this Judgment, (b) the speeches made in Parliament by several Members of Parliament during the debate into the matter relating to MV X-Press Pearl environmental pollution disaster (c) other allegations that exist in the public domain, and (d) intelligence and information that may be available at the CIABOC and may be called for from different sources.
To facilitate the conduct of such investigations, the DG should initially call for and consider investigations already conducted into such allegations by the CID. The DG CIABOC should obtain the assistance of the Financial Intelligence Unit of the Central Bank of Sri Lanka and the State Intelligence Service and process intelligence that may be received.
Interim Reports relating to the progress and outcomes of investigations conducted by CIABOC should be submitted under confidential and sealed cover (with the covering Motion being appended to the external cover of the sealed envelope) to the Registrar of the Supreme Court, once in every three months.
The Petitioners shall be entitled to claim from the Attorney General the actual costs of litigation (including counsel fees, payments to instructing Attorneys, and documentation charges) relating to the several Applications filed by them and prosecuted, the court said.
Court’s Findings
This Court held that, for the purpose of gaining entry to the Colombo Port, obtaining anchorage and thereafter using the berthing facility that had been issued by the Harbour Master of the Colombo Port, the Master, Operator and the local Agent of MV X-Press Pearl intentionally suppressed and withheld from the Harbour Master of Colombo Port, truthful, timely, comprehensive and accurate information regarding the situation that evolved over a period of time.
The afore-stated suppression and withholding of information resulted in the Harbour Master of the Colombo Port and other related parties from not taking necessary measures to properly redress the situation that had arisen on board the MV X-Press Pearl.
The handling of, responses to, and the management of the situation that evolved and later prevailed on board and in MV X-Press Pearl by the Master, Owner, Operators and the local Agent of the vessel, resulted in causing marine and coastal environmental pollution in Sri Lanka.
In the circumstances that prevailed, such parties could have managed the afore-stated situation in a manner that would not have resulted in marine and coastal environmental pollution. Therefore, they were jointly and severally responsible for the marine and coastal environmental pollution that was caused.
By deliberately concealing the true situation on board and inside MV X-Press Pearl including the evolving condition of the damaged container, the situation that prevailed inside Cargo Hold No.2, and by failing to provide adequate and timely notifications regarding such matters, the Master, Operators, and the local Agent of MV X-Press Pearl had undermined applicable international reporting norms, and thereby deprived Sri Lanka’s competent authorities of the critical response time that was necessary, and exposed the marine and coastal environment, coastal and fisheries communities and marine eco-systems to a marine and coastal environmental disaster that was preventable.
The Agent of MV X-Press Pearl was responsible both as a corporate entity and its Directors and principal executive officers were responsible on an individual basis for the suppression of relevant information to the Harbour Master of the Colombo Port, and such suppression ex-facie constituted the offence of Cheating.
The then State Minister for Urban Development, Coast Conservation, Waste Disposal and Community Cleanliness Dr. Nalaka Godahewa, MP (former), had failed to constitute the Marine Environment Council of the Marine Environment Protection Authority (MEPA) and thereby did not comply with his statutory obligation under Section 14 of the Marine Pollution Prevention Act. Such non-compliance resulted in the MEPA not having the benefit of an instrument designed to enhance both readiness and response capacity in the face of a marine environmental emergency.
In this instance, the absence of the said Council to respond to the incident relating to the MV X-Press Pearl and related marine and coastal environmental pollution contributed towards the malfunctioning of the MEPA in response to the incident.
Dr. Nalaka Godahewa had failed to exercise the supervisory duties conferred on him by Section 52(3) of the Marine Pollution Prevention Act in respect of the MEPA, and thereby permitted MEPA and its Chairperson to respond to the situation relating to the MV X-Press Pearl incident, without necessary ministerial supervision.
The Marine Environment Protection Authority (MEPA) and its chairperson, Mrs. Dharshani Lahandapura had failed to efficaciously respond to the situation pertaining to the MV X-Press Pearl incident in the manner described in this Judgment, and thereby were non-compliant vis-a-vis their statutory duties and obligations under and in terms of the provisions of the Marine Pollution and Protection Act.
This Court found that Mrs. Dharshani Lahandapura, Chairperson of Marine Environment Protection Authority (MEPA) had failed to convene the Board of Directors of MEPA when it was required to, and thereby failed to obtain the views of the members of such Board specifically appointed to guide decision-making in the MEPA, and failed to assess the effectiveness of the measures already taken in light of the worsening emergency.
The economic and financial losses suffered by fishing communities and others associated with the fishing industry referred to in the several Applications and in respect of which cogent evidence had been presented to this Court, are directly due to the situation that arose as a result of the marine and coastal environmental pollution caused by MV X-Press Pearl.
The Attorney General had failed to perform his statutory function of indicting the Owner and the Operator(s) of MV X-Press Pearl, with regard to their criminal responsibility arising out of Section 26 paragraph (a) of the Marine Pollution Prevention Act. The decision taken by the Attorney General to institute civil legal action against the X-Press Pearl group of companies in a Singapore court, as opposed to instituting action in the High Court of the Republic of Sri Lanka exercising Admiralty jurisdiction, was an unreasonable, irrational and arbitrary decision, and was not in the best interests of Sri Lanka.
The Non-State party Respondents (X-Press Pearl group) shall be jointly and severally accountable and liable under the Polluter Pays Principal for the marine and coastal pollution caused by MV X-Press Pearl.
Court’s Rulings
By failing to constitute the Marine Environment Council of the Marine Environment Protection Authority (MEPA) and thereby failing to comply with his statutory obligation under Section 14 of the Marine Pollution Prevention Act, the then State Minister for Urban Development, Coast Conservation, Waste Disposal and Community Cleanliness Dr. Nalaka Godahewa, MP (former), had infringed the fundamental right of the Petitioners and the people of Sri Lanka.
By its failure to efficaciously respond to the situation pertaining to the MV X-Press Pearl incident in the manner described in this Judgment, and thereby being responsible for non-compliance with its statutory obligations under and in terms of the provisions of the Marine Pollution and Protection Act, the Marine Environment Protection Authority (MEPA) had infringed the fundamental right of the Petitioners.
By her failure to efficaciously respond to the situation pertaining to the MV X-Press Pearl incident in the manner described in this Judgment, and thereby being responsible for non-compliance with her statutory obligations under and in terms of the provisions of the Marine Pollution and Protection Act, Dharshani Lahandapura, Chairperson of MEPA had infringed the fundamental right of the Petitioners and those whom they represent.
The Attorney General had infringed the fundamental right of the Petitioners, those whom they represent and by extension the People of Sri Lanka guaranteed by Article 12(1) of the Constitution. by his unreasonable, irrational and arbitrary decision to institute civil legal action against the X-Press Pearl group of companies in a Singapore court as opposed to instituting action in the High Court of the Republic of Sri Lanka exercising Admiralty jurisdiction. The Attorney General had infringed the fundamental right of the Petitioners, those whom the Petitioners represent and by extension the People of Sri Lanka guaranteed by Article 12(1) of the Constitution.
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