FR petition seeks orders for culpability and damages over ship fire

A fundamental rights petition seeking compensation from the owners of the MV X-Press Pearl container vessel for causing damage to the environment was filed in the Supreme Court on Friday by the Centre for Environment Justice and three other parties, including a traditional fisherman whose livelihood has been jeopardised by the effects of the country’s worst maritime disaster.

The litigants are also seeking to sue any public officers who had intentionally failed to carry out their duties.

The petitioners want a court order to credit damages and compensation to a dedicated account.

Among a host of other pleas, they also seek the formulation of a national contingency plan to promptly respond to any future maritime disaster.

“As the country is located near a busy international shipping lane makes it critically important that the country is prepared for contingencies like the fire on the X-Press Pearl in order to protect our invaluable marine ecosystem. The inadequacy of preparedness and response mechanisms, the extraneous and collateral considerations of the respondents, has contributed to this massive and irreparable damage to marine and coastal ecosystems,” the petitioners stated.

The MV X-Press Pearl, now a smoking hulk partly sunk to the ocean floor, was a newly commissioned Singaporean container vessel owned and operated by X-Press Feeders, which is regarded as the largest feeder operator in the world.

It was carrying 1,486 containers including 25 tonnes of hazardous nitric acid, highly reactive and inflammable chemicals such as sodium methodoxide and other chemicals such as caustic soda and sodium methylate as well as plastic, lead ingots, lubricant oil and quicklime when it caught fire outside Colombo harbour, according to papers filed in court.

The petitioners claim that on June 2, the ship had begun to sink quickly with nearly 300 tonnes of oil still in its fuel tanks. They said they fear an even greater disaster if the 278 tonnes of bunker oil and 50 tonnes of gas in the ship’s fuel tanks leak into the

Indian Ocean.

The petitioners allege Sri Lankan port authorities, including the Director-General of Merchant Shipping (cited as a respondent), had acted thoughtlessly in allowing the ship to enter Sri Lankan waters without assessing the nature and status of the cargo.

“The captain and the crew members of the MV X-Press Pearl who apparently knew about the nitric acid leak from about 11th May 2021, nine days before the blaze started, had willfully failed to inform the Sri Lankan authorities of such risk,” alleged the petitioners, stating that those on board had thereby committed offences under penal code and were liable to pay compensation.

They further allege that Sri Lankan public officers had failed to ratify and accede to the Hazardous and Noxious Substances Convention (HNS Convention 1996) and the 2010 Protocol. “Had Sri Lanka ratified the Protocol it would have been able to claim compensation for the damage under such protocols,” they pointed out adding that “the protocol aimed to ensure effective compensation for damages to persons and property, costs of clean-up and reinstatement measures and economic losses resulting from maritime transport of hazardous and noxious substances such as chemicals.”

The petitioners state that the disaster would have adverse implications on the livelihood of fishing communities in coastal areas from Kalpitiya to Hikkaduwa and on the health of the general public, and that future generations would, in violation of the Principle of Trusteeship, be deprived of their right to a clean and healthy environment.

The petitioners called upon the court to conduct an independent and impartial investigation into the fire to ascertain its cause, determine the parties responsible to pay damages, and order respondents to formulate a methodology to calculate damage caused to affected sectors such as fisheries and tourism.

The court was also asked to order the safe disposal of plastic pellets and other debris released from the burning and sinking ship or issue an order directing the owner and local operator of the X-Press Pearl to re-export the debris.