Over the past few days, we have been hearing the Prime Minister and the Attorney General speak of a Court of Investigations. The former referred to it while questioning the authority of the BBC, with a resounding “So What?”. The British news channel had in fact enlightened us on the provisions of the Merchant Shipping Act which provide for a preliminary inquiry leading to a Court of Investigation.
Let’s take a look at the so-called Court of Investigation to avoid any disillusion. The Merchant Shipping Act 2007 (the “Act”) provides that “the Director [of Shipping] or a surveyor designated by him may hold a preliminary inquiry into the casualty” and “[…] the Minister may cause a formal investigation to be held by a Court of Investigation appointed by the Minister for that purpose […]”.
As per the Act, the Court of Investigation shall hold meetings and conduct its proceedings in the same manner, and shall have the same powers, as a Commission of Inquiry under the Commissions of Inquiry Act. Let’s pause for some time here. How many Commissions of Inquiry have been set up for the past years and how many of them have actually been resolved? Do we, Mauritians, have any confidence in Commissions of Inquiry. No. The Act provides that the Court of Investigation shall “consist of a Chairperson who holds or has held judicial office, and 2 other persons with skills and knowledge in maritime matters”. Who will they be, Mr Maneesh Gobin?
Let’s now move on to the powers of the Court of Investigation. As a result of the investigation, the Court of Investigation may recommend the cancellation, suspension or withdrawal of recognition of a ship’s officer’s certificate! I hope we can all safely agree that any such action would be useless in the case of Wakashio. Mr Maneesh Gobin spoke of broad terms of reference for that Court of Investigation but where are these spelt out and who dictates what those terms of reference will be? Who are the experts this time? Now that we have a somewhat vague view of what the Court of investigation is about, it would be ridiculous to keep on dissecting the Act to try to find further answers. Let’s then, in all fairness, move on to international laws and conventions.
While it remains to be determined how this incident happened, it is worth noting, first of all that, as the bunker oil spill is from a bulk-carrier, not an oil tanker, the IOPC FUND regime (International Convention on Civil Liability for Oil Pollution Damage (CLC) and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND), as amended in 1996), which by the way would have provided liability and compensation of up to approx. 286 million USD for this incident (also covers reinstatement of the environment), will not apply here.
Bunker oil spills from ships other than oil tankers, as in the present case, are covered by the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunkers Convention), which Mauritius, Panama, and Japan have ratified. The Convention was adopted to ensure that adequate, prompt, and effective compensation is available to persons who suffer damage caused by spills of oil, when carried as fuel in ships’ bunkers. Good news, finally, but let’s take a closer look at the Bunkers Convention.
The Bunkers Convention applies to “pollution damage” caused in the territory, including the territorial sea, and in exclusive economic zones of States Parties to it (Art. 2). “Pollution damage“, as defined in the Convention (Art. 1.9), covers: (a) loss or damage caused outside the ship by contamination resulting from the escape or discharge of bunker oil from the ship, wherever such escape or discharge may occur, provided that compensation for impairment of the environment other than loss of profit from such impairment shall be limited to costs of reasonable measures of reinstatement actually undertaken or to be undertaken; and (b) the costs of preventive measures and further loss or damage caused by preventive measures. (Art. 1.9).
What this means is that (subject to an overall financial cap), economic losses are covered, as well as loss of profit from impairment of the environment. Compensation for other environmental damage, however, is restricted to the costs of reasonable measures of reinstatement actually undertaken or to be undertaken; as well as the costs of preventive measures and further loss or damage caused by such measures.
Sadly though, liability can be significantly limited under the Bunkers Convention. Art. 6 provides that “shipowner and the person or persons providing insurance or other financial security to limit liability under any applicable national or international regime, such as the Convention on Limitation of Liability for Maritime Claims, 1976”. The Bunkers Convention goes on to limit the amount of liability to the size (gross tonnage) of the ship. Regarding the oil spill in Mauritius, if the gross tonnage of the vessel is, as reported 101.932 GT, then any liability for the incident under the Bunkers Convention would be capped at an overall maximum of about 65.17 million USD, that is, MUR 2,580,367,849.25. Is Mauritius entitled to that amount for the damage caused by MV Wakashio? However heartbreaking that may be, the answer is No.
Liability under the Bunkers Convention is excluded where “the damage was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function” (Art. 3.3(c)) .
This prompts us to the most frequently asked question these days in Mauritius: what did the Government do to prevent the damage? Was there any negligence or any wrongful act? Far from trying to appoint myself as an expert, I will leave these questions open to all Mauritians and I will rely on the Government to appoint real experts to answer these questions. In my humble opinion, there was negligence, backed by a cunning unwillingness to take any appropriate action to prevent this ecological disaster for the world to see. All of this explains the resistance of the Government to have volunteers on site because it was obvious that with the help of social media, the disaster would become an international concern. It now makes sense why and how out of nowhere, an Order was made by the National Crisis Committee under section 16(2) of the National Disaster Risk Reduction and Management Act to prevent the population from venturing in restricted areas, namely the lagoon region from Bois des Amourettes Jetty along an imaginary line up to Le Chaland, Pointe D’Esny, Pointe Vacoas, Pointe Jérôme, Blue Bay Marine Park, Pointe Brocus, Falaise Rouge up to Mahebourg Waterfront and Rivière des Créoles public beach.
The intent of this article is to question how Mauritius will wake up from this ecological disaster without the sufficient means. Given the Prime Minister’s obsessive addiction to experts, I would strongly advise the Government to consult those in the field of Maritime Law for a proper assessment of liability, compensation claims thereof under international laws and conventions. The probability is very high that, as mentioned above, Mauritius may not get a dime. But, please, prove us wrong !
By – Veritas