A Legal Perspective
What does the law say? Answers to certain basic questions about maritime/admiralty law in the wake of the MV Wakashio shipwreck
By Vimalen Reddi
What is the flag state of MV Wakashio? MV Wakashio is a bulk carrier sailing under the flag of Panama. This means that MV Wakashio is registered, licensed under and governed by the laws of Panama.
The flag state specifies the conditions for registration of a vessel in its registry. Some traditional flag states, such as the UK or Greece, have strict requirements and scrupulously follow the relevant international conventions (such as the International Convention on Safety of Life at Sea or the International Convention for Prevention of Maritime Pollution, etc). Many other countries have open registries (also called flags of convenience) with far less strict requirements and standards together with tax advantages. Panama is one of those countries.
What law applies to the present case of MV Wakashio’s shipwreck?
The simple answer is Mauritian law and international law, but only to the extent recognised by or consistent with Mauritian law. For example, the Merchant Shipping Act expressly recognises the Salvage Convention of 1989, which has the effect of importing rules under the Salvage Convention into our domestic law. Our Maritime Zone Act incorporates the United Nations Convention on the Law of the Sea.
“Our law specifically provides that any person affected in any way by a spill has a right to damages from the owner of the pollutant. Our law uses the expression ‘affected in any way’. Now, our environmental law expressly recognises that every Mauritian has stewardship of the environment. It may then be possible to argue that every Mauritian has standing before a court of law as an affected person to seek damages from the owner/s of the pollutant. The general principles relating to ‘faute’ under our Civil Code also provide a fallback position…”
All ships sailing in ‘Mauritius waters’, except for warships, are thus subject to Mauritian Law. Mauritius waters means our territorial sea, our internal waters, our archipelagic waters and our historic waters, including their beds, subsoils, resources and the air space above them.
Even outside the context of a shipwreck, Mauritian law applies anyway. This goes to the territorial integrity of Mauritius, a fundamental norm recognised in international law, aside from our own Constitution.
Our law, consistent with international law, recognises the innocent passage on vessels in our seas. However, all ships entering our seas are monitored by our National Coast Guard.
The National Coast Guard Act, again consistent with international law, empowers the Coast Guard to stop, arrest, board and search any vessel in Mauritius waters, irrespective of its flag state. It can do so to prevent entry by sea or any activity that is likely to constitute a threat to the maritime zones, including the seabed, the flora, the reefs, the beach and the coastline. The law goes as far as to expressly provide that the National Coast Guard may fire at or into the vessel which does not stop immediately and lie to or manoeuvre in such a way as to permit it to be boarded.
What does our law provide in the case of a shipwreck?
Our law (see the Merchant Shipping Act) is fairly comprehensive regarding shipping casualties, which include the stranding, grounding or damage of a ship.
The Director of Shipping has broad powers under the law, including the power to exercise general direction and supervision over all matters relating to wreck and salvage, as well as the power to seize and detain any wreck. Thus, the law expressly recognises the power of the Director to give directions in relation to any salvage operation.
The Director is also empowered to take measures to protect the environment from pollution or threat of pollution. All these rights are recognised in our domestic legislation as well as the Salvage Convention.
Our law also empowers the Director to carry a preliminary enquiry in the circumstances of the shipping casualty. This is in addition to and independent of the power of the Minister responsible for shipping to cause a formal investigation to be held by a ‘Court of Investigation’ – chaired by a judge or former judge and assisted by two other persons with skills and knowledge in maritime matters. A Court of Investigation has the same powers as a Commission of Inquiry.
Where a shipwreck results in oil spills, as is the case here, our environmental laws also come into operation. The Environment Protection Act imposes several obligations on the owner of the pollutant being spilled. The owner of a pollutant is defined under the Act as the owner or the person having the charge, management or control of a pollutant which is spilled or unlawfully discharged. There may thus be more than one owner of a pollutant. The owner of the spill must do everything practicable to prevent, eliminate or reduce the adverse effects of the spill, including to restore the environment to the state it was in prior to the spill.
Who is liable to pay for damages caused by oil spills?
Our law specifically provides that any person affected in any way by a spill has a right to damages from the owner of the pollutant. Our law uses the expression ‘affected in any way’. Now, our environmental law expressly recognises that every Mauritian has stewardship of the environment. It may then be possible to argue that every Mauritian has standing before a court of law as an affected person to seek damages from the owner/s of the pollutant. The general principles relating to ‘faute’ under our Civil Code also provide a fallback position.
International law provides a comprehensive regime dealing with liability for oil pollution. There is the 1969 International Convention on Civil Liability for Oil Pollution Damage and the 1992 Civil Liability Convention. Whilst Mauritius is a party to these conventions, these would not apply in the present case as they deal with pollution by oil tankers. The relevant convention would be the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001, to which Mauritius is also a party.
While liability of the registered owner of a vessel is not generally difficult to establish (liability is generally strict, even in the relevant international conventions), there are some additional considerations.
For example, the 1969 and 1992 Conventions applying to oil tankers provide a two-tier compensation regime. The registered owner of the vessel bears sole liability, but if adequate compensation cannot be recovered, the Conventions have funds (the International Oil Pollution Compensation Funds) for additional compensation to be paid.
In contrast, the 2001 Convention (relating to bunker oil spills) only provides a single-tier regime, although liability is not limited to that of the owner. Classification societies, charterers, salvors, operators or even in certain circumstances state authorities (e.g. 1992 Aegean Sea incident) may all be held liable.
* Published in print edition on 14 August 2020