Let Justice Rise, Not sink

Senior Adv. V. J. Mathew

The ship MSC Elsa 3, which left Vizhinjam port for Kochi with 643 containers, sank 13 nautical miles off the Kerala coast, and that about 150 of its containers were empty and 13 of the remaining containers contained a dangerous chemical called calcium carbide, the Shipping Director General’s Office and the Mercantile Marine Department said in a press conference. It was also revealed that the ship was carrying 367 tons of bunker oil and 84 tons of diesel.

Even after two weeks since the ship sank, the official cargo manifest, which contains detailed information about the cargo in the containers, has not yet been published in the public domain by the state and central governments, the Pollution Control Board, the Disaster Management Department, the Shipping Ministry, the Mercantile Marine Department, or the ship owner.

This issue was also raised in the public interest litigation that came before the Chief Justice of the Kerala High Court yesterday. Although a list of the cargo on the ship has now come out, is the cargo manifest authentic? There has been no action by the central and state governments or other agencies to investigate whether there were any illegal goods contrary to the cargo manifest.

Let the scientific community assess the future effects of this incident on our fisheries and marine environment. It is understood that the state government has formed a committee comprising about a dozen officials and a few experts. But most importantly, an effort should be made to find out the cause of the shipwreck. The voice data recorder from the captain’s room, the log books of the captain, chief officer and chief engineer, and the ship’s chart were not recovered before or after the sinking. If they are examined, the cause of the accident will be clear.

The state government, ministers and officials are currently maintaining that the state government does not have the authority to take cases beyond 12 nautical miles. However, in June 2016, through a special gazette notification issued by the central government, each coastal police station in the coastal states of India was given the authority to take criminal cases up to 200 nautical miles. According to this notification, it can be seen that the Fort Kochi Coastal Police in our state has been authorized to take cases up to 200 nautical miles.

When I was the Chairman of the State Maritime Board, the ship carrying Naphtha near the Cochin port had been shifted to a distance of 13 nautical miles and no one had removed it even after many years, so the issue of removing the ship from the Kerala coast was discussed. I explained this in a meeting attended by the then Chief Secretary, DGP, State Secretaries and department officials, and subsequently accepted the removal of the ship through the court.

It should be recalled that in the 2012 ‘Enrica Lexi’ maritime murder incident that took place at a distance of 24 nautical miles, the Coastal Police had called back the ship when it had reached a distance of about 45 nautical miles and investigated. The Cochin Coastal Police had initially registered the case and later handed it over to the Neendakara Police.

The State Government should seek legal advice from the Director General of Prosecutions of the High Court, who is supposed to advise on criminal law, on what to do here.

In connection with the accident, the state government can file a case against the ship owner, investigate the cause of the accident, take further action and collect compensation as per the provisions of the Indian Penal Code, Dangerous Navigation, Safety of Life and Protection of Environment and many other international treaties such as the ‘Marpol Convention’. However, it has not been possible to remove the dangerous containers that have been floating in the sea for two weeks, or to file a case against the criminal act of the ship owner that is causing concerns about the environment and health.

The government can ask the ship company to deposit this amount after estimating the loss to the government, fishermen and the public and the potential loss to the wider community.

A report should be prepared on the loss to the state government and various government agencies due to the removal of the broken containers and cargo on the ship, the damage caused to the environment and the fisheries sector by the dangerous cargo, and the damage caused to the environment and fisheries sector and action should be taken expeditiously.

By filing a case against the shipping company MSC and demanding compensation, the newly inaugurated Vizhinjam port will not suffer any loss, and the ships of the MSC company will not be left out of this case alone. But now the soft approach shown to the MSC shipping company and the failure to disclose the details of the cargo on the ship will sow the seeds of suspicion among the public. That is why the Division Bench of the High Court, comprising the Chief Justice, asked the government to make all available information public.

If the dangerous containers are still submerged, steps should be taken to remove them on a wartime basis. If the state government does not have the facilities for this, the shipping company can be asked to remove them in a timely manner. Maritime laws and international conventions stipulate that all the costs of this should be recovered from the ship owner.

Considering the losses already incurred and those to be incurred in the future, the estimated amount of loss can be deposited with the government and if not, any other ship of the MSC Shipping Company can be arrested under Admiralty law and legal action can be taken to recover the compensation amount.

Since there is a provision to recover the losses incurred by the government, the public and the fishermen and the losses that are expected to occur in the long term from the shipowner, legal action should be initiated for that.

(The writer is a senior advocate in the High Court, a maritime law expert and former chairman of the State Maritime Board, and is also the senior vice president of the Indian Maritime Law Association (CMI))