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Legal implications on claiming damages by SL under international law

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Fire on New Diamond crude oil tanker:

BY Dulip Jayawardena

A Very Large Crude Career (VLCC) double hull tanker under the flagship of Panama was built by Mitsui Ichihara Engineering and Shipbuilding, Ichihara, Japan, in 2000 and has a gross tonnage of 160 079, with a dead weight of 299986 tons (DWT). The former names were Diamond Warrior (2013 Panama) and Ikomasan (2013 United Kingdom). It was reported that this tanker carried over 270 000 metric tons of crude oil above the gross tonnage.

The length of the tanker is 333 meres and breadth 60 metres. The present owner and manager are from New Shipping Company Athens, Greece. The International Maritime Organization (IMO) Registration No. 9191424 Maritime Mobile Service Identity (MMSI) is 351247000 for this tanker.

According to Ekathirinorini.com an Athens-based business site, the VLCC Panamanian tanker has been owned by Porto Emporios Shipping Inc., since 2013. The vessel’s commercial and safety manager is Greece-based New Shipping Ltd., which has a fleet of 32 oil tankers and bulk carriers under its care.

 

THE SEA ROUTE OF VLCC

NEW DIAMOND

This VLCC set off from Mina Al Ahmadi Port, in Kuwait, to the Paradeip Port, in the east coast of India, with 270 000 tons of crude oil. There were 23 crew members, comprising of five Greek and 18 from the Philippines. The position of the VLCC by the Automatic Identification System (AIS) was at the Persian Gulf (co-ordinates 26.32473 N/53.7858 E) on 23 August 2020 and was scheduled to reach the Port of Paradip Garh, on the east coast of India, on 5 September 2020, at 10.00 am. However, a fire erupted due to an explosion of a boiler in the main engine room on 3 September 2020 at 8.00 am, Sri Lanka time, when sailing 38 nautical miles off Sangamankanda Point off the eastern coast of Sri Lanka, according to the Sri Lanka Navy.

The VLCC, that left the Persian Gulf on 23 August 2020, reached the location of the explosion on 3 September 2020 after 11 days, travelling a distance of 2153 nautical miles at 195 nautical miles per day. It was scheduled to reach the port of Pradeep Garh on 5 September 2020 at 10 am travelling a distance of about 750 nautical miles at over 10 knots or 240 nautical miles per day. It is evident that the VLCC was to increase its speed while travelling from the south of Sri Lanka to the Port of Destination and it should be ascertained whether this caused a boiler in the engine room to explode.

 

PRESENT STATUS OF THE FIRE ON VLCC NEW DIAMOND AND SALVAGE OPERATIONS

According to News First, a Sri Lankan media, the VLCC, as of 6 September 2020 at 7.58 am, is 40 nautical miles away from land and there is a continuous effort to spray cooling agents to cool the oil storage section of the tanker.

As mentioned earlier, the vessel’s commercial outfit, New Shipping Ltd., of Athens, Greece, has appointed SMIT Singapore Pvt Ltd., as a salvage group for future operations and has one tug boat at site with the salvage chief who deals with such disasters. Two more large tug boats that can handle oil tankers of this size are expected. Further, 10 British and Dutch professionals with expertise in rescue operations, disaster evaluation and legal consultations have arrived in Sri Lanka and are expected to make recommendations on the future course of action.

It was reported that the fire erupted again on 8 September 2020 and was brought under control by the Disaster Management Team on the morning of 9 September 2020. A Dornier aircraft of the Indian Coast Guard air dropped diesel dispersant as there was a leak of diesel from the engine room. Further a research vessel from NARA has been dispatched to collect sea waters around the distressed tanker.

 

LEGAL IMPLICATIONS UNDEER

INTERNATIONAL LAW

The legal issues under international law are complicated as there are responsibilities under the three major entities involved, namely the Panamanian flag state, the owners Porto Emporios Shipping Inc and New Shipping Ltd of Athens, Greece.

The fire on board VLCC New Diamond as reported by the Sri Lanka Navy has occurred 38 nautical miles on 3 September 2020. Since this point is not within the territorial sea of 12 nautical miles and also is away from the contiguous zone of 24 nautical miles, it is within the Exclusive Economic Zone (EEZ) which is over 200 nautical miles.

 

UNITED NATIONS CONVENTION ON

THE LAW OF THE SEA (UNCLOS)

It is now evident that since the fire occurred within our EEZ, the vessel had the freedom of navigation under UNCLOS.

Sri Lanka ratified UNCLOS on 16 November 1994 the day that the Convention entered into force and therefore has the rights and obligations under international law.

 

NATIONALITY OF SHIPS AND FLAG STATE DUTIES UNDER ARTICLES 91 AND 94 OF UNCLOS 1982

Article 91 states that every State identify conditions for the grant of its nationality for registration of ships in its territory and the right to fly the flag and has a genuine link between the State and the ship. According to the Lloyds Register, there are 10 Flag State countries with the ships flying their flags. These are Panama (9367 ) Singapore (4962) China (4881) Marshall Islands (4163) Liberia ( 4027) Japan (3846) Hong Kong (3707) Malta (2637) Greece (1545) and Bahamas (1512).

Freedom of navigation and the right of flag State to sail ships on the high seas are included under customary law and codified under 1958 High Seas Convention and subsequently under Article 87 and 91 of UNCLOS 1982.

Freedom of Navigation as referred to in Article 87 of UNCLOS (Freedom of High Seas) also applies to EEZs.

Under Article 94 (1) (2) (3) and (4) of UNCLOS the flag State is responsible for duties related to effective jurisdiction and effective control over administrative technical matters on their ships on the High Seas or EEZs

Article 94 section 6 of UNCLOS refers to “A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not being exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate into the matter and, if appropriate take any action to remedy the situation.”

In the case of VLCC New Diamond the flag State is Panama and the appropriate authorities should initiate action, if not done so, inform Panama about this fire.

Attention is also drawn to Article 217 of UNCLOS highlighting the responsibility of the flag State to strictly take appropriate measures and adopt laws and regulations to prevent, reduce and control of pollution and ensure the compliance of those vessels flying its flag with international marine pollution laws. It must also be stressed that the flag State is bound to investigate any case where any ship registered under its flag violates any international anti–pollution laws.

However, the implementation of duties of flag States termed open registers or flags of convenience do not follow the obligations under UNCLOS and other relevant maritime Conventions under the International Maritime Organization (IMO).

The IMO Conventions are divided into (1) Maritime Safety – 11 Conventions (2) Marine Pollution – 7 Conventions (3) Liability and Compensation – 7 Conventions and (4) Other Subjects – 4 Conventions.

Some of the important Conventions relevant to the fire on board of New Diamond are International Convention for the Safety of Life at Sea (SOLAS) -1974 and International Convention on Maritime Search Rescue (SAR), 1979 International Convention for the Prevention of Pollution from Ships 1973 as modified by the protocol of 1978 relating thereto (MARPOL73/78),Convention on Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LDC) 1972, and International Convention on Oil Pollution Preparedness , Response and Cooperation (OPRC) 1990 .

As related to claiming of compensation and liability the applicable convention is the international Convention on Civil Liability for Oil Pollution Damage (CLC) 1969 and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND) 1971, and International Convention of Salvage (SALVAGE) 1989.

It is customary to delegate responsibilities of Flagship States to Ship Classification Organizations (SCO) which are private institutions who are delegated to establish and maintain standards for the construction, maintenance and classification of ships including tankers.

 

The major problem is that majority of flag States are delegating most of their duties to SCOs and it has been noted that the SCOs lower their standards due to competition and attract more clients.

Sri Lanka is a member of International Maritime Organization (IMO) since 1972.

IMO has formulated the International Safety Management Code (ISM) which applies to the safe operation and management of the vessels and also for prevention of environment pollution. As a member of the IMO Sri Lanka should take action to report if the VLCC New Diamond has violated the applicable conventions indicated earlier.

 

PROCTED WATERS OF SRI LANKA

An excellent article by Howard Martenstyn (https://www.slam.lk/protected-waters..) Have listed Marine National Parks and Marine and Associated Sanctuaries.

The fire on VLCC New Diamond if resulted to oil spills would have severely polluted the Yala and Kumana National Parks, Pigeon Island near Trincomalee The other Marine Sanctuaries such as Godayaya , Kalametiya Lagoon (Hambantota), Little Sober Island, Great Sober Island (Trincomalee), Kokilai lagoon would have also been subjected to severe oil pollution. The rare fauna and flora in these areas would have been subject to extinction, including the rare species of Omura Whales.

SUGGESTED FUTURE PLANS FOR PROTECTION OF THE SEA AREA OF THE EEZ ON THE EAST COAST

The Marine Environment Protection Authority (MEPA) is the main body established by the Government of Sri Lanka under the marine Pollution Prevention Act No 36 of 2008 with the full responsibilities for preventing control and manage the pollution of Sri Lanka’s marine environment. The fire on VLCC New Diamond was within the EEZ of Sri Lanka and it is queried whether customary laws have been formulated and enacted in conformity with the international laws conventions and treaties covering our EEZ.

It is also reported that there is no effective modalities to ascertain that flag States set their own individual standards for registration of ships including tankers and to identify and implement protocols to effect conditions covering all flag States have failed. (Refer 1986 UN Convention on Conditions for Ship Registration).

Accordingly, the legal framework in place for monitoring and implementing effective flag State is not complete. It is also noted that most flagship States do not give much importance to identification of ownership of ships and accountability of ship owners and most of these States register ships without the requirement of the identification of owners. Accordingly, such incorporation is secretive and will normally cover all the related jurisdictions.

It has been reported that the Attorney General has ordered that VLCC New Diamond to be towed out of our EEZ which is identified as 200 nautical miles from the high water mark on the coastline.

Sri Lanka is now in the process of claiming an extended see area of 1, 400,000 sq. kilometers on the eastern Indian Ocean which is over 24 times the land area of 650 612 Km 2 under Article 76 of UNCLOS Annex 11 UN Commission on the limits of the Continental Shelf. With this development Sri Lanka will have a major task to control maritime pollution in such a vast sea area apart from the security and exploitation of off shore non living and living resources.

RECOMMENDATIONS

As a researcher at United Nations ESCAP I was involved in covering marine affairs under UNCLOS for over 13 years.

I would recommend the following for future course of action related to the VLCC New Diamond.

(1) The Treaties Division of the Ministry of Foreign Affairs should get actively involved in filing claims related to marine pollution of the eastern seas of Sri Lanka together with the MEPA, NARA, Environment Ministry, Environment Protection Authority, Department of Maritime Shipping and other prevalent agencies.

(2) The Government must work out a new sea route for all VLCC tankers to avoid Sri Lankan waters and navigate south of Sri Lanka to the new sea port now operating at Port Blair on the Andaman Islands. From Port Blair the path of the VLCC tankers should go north to the Indian coast avoiding Sri Lanka’s EEZ at present and also the extended sea area after the finalization of the of the extended sea area by the UN Commission on the Continental Shelf. Bi lateral talks should be initiated with India and Bangladesh regarding this matter. India imported 2.724 million metric tons for its refineries on the eastern seaboard of India. Accordingly, Bangladesh imported 1.4 million tons of crude oil from the Middle East in 2020. Most of these tankers were of the VLCC class. It is also reported that Sri Lanka also imports crude oil from India and to maintain our clean seas programme should also recommend avoiding our sea area defined as our EEZ.

(3) All VLCC tankers bound to the Chinese coast and Japan avoids Sri Lanka’s waters and navigates on a sea route to the Malacca Straits. The Chinese government as an integral part of the Belt and Road Project has initiated talks with Thailand to construct the Kara Channel, a 1220 kilometer Thai Channel . However the project is still on hold by Thailand and when this project is completed our southern sea waters will be safe from any oil spills from VLCC tankers and any ships carrying dangerous chemicals.

References :

(1) A Critical Analysis of Flag State Duties as Laid Down Under Article 94 of UNCLOS – Nivedita M. Hosanee – The United Nations – Nippon Foundation Fellowship Programme 2009 -2010.

(2) The International Law of the Sea by Yoshifumi Tanaka University of Copenhagen, Faculty of Law Cambridge university Press 2012

(3) Maritime Security and the Law of the Sea by Natalie Klein Oxford Monograph in International Law 2011.

(4) Environment Protection and Biodiversity Conservation – The Application and future development of IMOs Particularly Sea Area Concept by Julian Roberts 2010 Springer Publication.

(5) The Law of the Sea United Nations Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea United Nations New York, 1983

 

(The author is a Retired United Nations ESCAP Economic Affairs Officer and also worked as a Senior Research Officer at NARA from 1986 -1989 and a World Bank Consultant to the Ministry of Industries in early 1990 and can be reached at fasttrack@eol.lk)



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Features

On the hunt for China’s most famous green tea

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Longjing is one of China’s most revered green teas. But as its traditional production has dwindled, one of the best ways to taste the real thing is to head to the hills where it’s harvested.

On a lush hillside on the fringes of Hangzhou, Ge Xiaopeng stands between rows of tea bushes and examines a tiny leaf. He grips it between his thumb and forefinger and carefully lifts it upward, effortlessly detaching it from its stem. He drops the bud into his basket, which is already full of tender leaves, each one smooth and slender, green as jade.

Xiaopeng, like other farmers who grow Longjing tea, has been waiting for this moment all year. Literally meaning “Dragon Well”, Longjing is one of China’s most revered green teas, famous for flourishing in the rolling hills around West Lake in Hangzhou, a former imperial capital in eastern China’s Zhejiang Province. On this breezy day in March, right around the spring equinox, Xiaopeng says the leaves have finally reached the standard of 2.5cm in length, which means the annual spring harvest is underway.

Longjing has been a recognisable name among tea lovers for centuries, ever since the Qianlong Emperor visited Hangzhou in the 18th Century. According to legend, he was so taken with the tea that he ordered 18 bushes to be bestowed with imperial status and reserved their yields for the court.

For centuries, farmers have built their year around the springtime Longjing harvest [BBC]

In recent years, Longjing’s reputation has only deepened, driven by a tightened geographic designation, renewed domestic appetite for traditional goods, and rising global awareness of regional Chinese teas. At the same time, the case for visiting these hillside farms has never felt more pressing. A persistent counterfeit market has made genuine Longjing trickier to identify, while the labour-intensive hand-firing work that shapes the tea’s character is increasingly being  replaced by machines.

Today, traditionally made Longjing is both more coveted and harder to come by. As a result, visiting Hangzhou’s tea villages is one of the surest ways to see the tea made at its source.

For Xiaopeng, a fourth-generation tea grower, the year has always been organised around the springtime harvest.

“Timing is highly important when it comes to Longjing,” he explains.

The earliest flushes, which bud in mid- to late-March, are the most prized, renowned for their restrained chestnut aroma and delicate, understated flavour. So treasured are these buds that Longjing is graded according to when it was plucked in the Chinese calendar, which divides the year into 24 micro-seasons based on the Earth’s position relative to the Sun.

Getty Images Longjing has been harvested in the hills near Hangzhou for generations (Credit: Getty Images)
Longjing has been harvested in the hills near Hangzhou for generations (BBC)

 

The mingqian tier refers to the early batches plucked before Qingming, the solar term that begins on 4 or 5 April; while later harvests are called yuqian (meaning “before Guyu”, the following solar term). Even a few days’ difference when harvesting can significantly influence the value of the leaves: from Xiaopeng’s family farm, just 500g of the earliest mingqian batches can now fetch upwards of 30,000 yuan (roughly £3,250 or $4,400). Xiaopeng says this figure would have been unimaginable a generation ago – the result of rising labour costs and a widening gap between supply and demand.

I came to Xiaopeng’s family farm in Longwu Tea Village at the recommendation of my friend and Hangzhou native Meng Keqi, who previously owned a tea shop in Chicago before returning to his hometown. As I follow Xiaopeng through his field as part of a tour, the sky is overcast, the air balmy. “These conditions are ideal for the leaves,” he says, explaining that light, misty drizzles and gentle sunshine allow the shoots to grow slowly, lending the early harvests their signature clean, delicate flavour, free of astringency or grassiness.

Yet, this approximately two-week mingqian harvest window is as anticipated as it is narrow – not to mention increasingly hard to predict as climate change alters seasonal weather patterns. Once the calendar approaches Guyu, around 19 or 20 April, warmer temperatures and heavier rainfall hasten growth, drawing out more of the tea’s bitter notes. Not only do early-budding leaves have a sweeter, more subtle flavour, their delicateness also requires an especially careful and precise touch when wok-firing – a critical step in the craft of Longjing.

After the leaves are plucked, artisans perform the laborious work of pan-firing them by hand, tossing the leaves in enormous woks heated up to 200C. I watch as Xiaopeng’s father, Ge Zhenghua, sweeps leaves across the wok, scoops them up, then releases them back down in precise, practiced strokes – all without wearing gloves.

Getty Images Longjing is pan-fired in enormous woks (Credit: Getty Images)
Longjing is pan-fired in enormous woks (BBC)

 

Because my mother is from near Hangzhou, I grew up drinking Longjing, but this is my first time watching the wok-firing process up close, and I marvel at the fact that there are nothing but tea leaves protecting his palms from the searing hot pan.

The firing process is arguably what makes Longjing what it is, says Zhenghua. It halts oxidation, preserving the leaves’ green hue; and presses them into their distinctive spear shape, a Longjing hallmark. Importantly, it also evaporates moisture.

“Drying thoroughly is what helps release their fragrance, and it allows the leaves to be stored without spoiling,” says Zhenghua. “I don’t wear gloves because I need to feel the level of heat, the moisture.”

Nowadays, more farmers are relying on machines to handle the task of wok-firing, saving a great deal of time and exertion during the busy harvest season. “When we were young, we hardly slept during this stretch,” recalls Zhenghua, explaining how the family would fire leaves around the clock.

Megan Zhang Some traditional Longjing farmers, like Zhenghua, don't even use gloves when pan-firing the leaves (Credit: Megan Zhang)
Some traditional Longjing farmers, like Zhenghua, don’t even use gloves when pan-firing the leaves (BBC)

 

While machine-firing produces consistent-enough results that most drinkers likely wouldn’t perceive a difference, Zhenghua says he can still taste what is lost – a fuller-bodied fragrance and a more lingering sweetness. “Hands can decipher what machines cannot,” he says. “Machines are dead. These hands are alive.”

Where and how to experience Longjing

Mid-to-late March to early April is the best time to visit Hangzhou to see the Longjing harvest. To best access the tea villages, book a hotel in the West Lake scenic area and consider chartering a car for the day through the Chinese ride-share app Didi, or you can join a tour organised by a farm or tea centre.

China National Tea Museum  – A Hangzhou museum dedicated to Chinese and global tea cultures, where visitors can wander through Longjing tea plantations, watch tea demonstrations, trace the history of Longjing, sample brews and browse tea-ware and tea leaves to take home.

• Suve Tea Institute – A tea school in Hangzhou that organises Longjing farm tours, wok-firing demonstrations and tastings.

 Luzhenghao – A long-established tea brand with shops and tea houses across Hangzhou.

Yige Tea House – A cafe in Longwu Tea Village owned by the Ge family, who run farm tours, pan-firing demonstrations, and tastings.

When the firing is complete, Zhenghua weighs the leaves and packages them, pressing a sticker certifying their authenticity onto each bundle. He explains that the government has limited the designated growing area for genuine West Lake Longjing to within a 168-sq-km region. In certain production zones elsewhere in Zhejiang Province, the tea can be called Longjing, without the West Lake designation. Anything grown outside of that can only legally be sold as green tea. To curb counterfeiting, authorities now issue a limited number of authentication stickers for verified growers to affix to their products; each sticker carries a QR code linking to a traceability system.

Demand for real Longjing has surged in recent years, propelled in part by the guochao movement, a trend drawing younger Chinese consumers back towards traditional Chinese heritage products. But enthusiasm for Longjing – especially mingqian leaves – far surpasses what the hills can yield during the brief and variable harvest window. The supply gap has made Longjing a target for fraudulent buds grown elsewhere in China but still bearing the name.

For many customers, the most reliable guarantee is to know the hands that produced the leaves. It’s why, come spring, Zhenghua says that many of his regulars visit his farm, where they watch him fire the leaves with their own eyes. It’s also why the family opened Yige Tea House nearby, where the Longjing-curious can participate in farm tours, pan-firing demonstrations and tastings.

Megan Zhang One of the best ways to taste traditional Longjing is to travel to the farms where it's harvested (Credit: Megan Zhang)
One of the best ways to taste traditional Longjing is to travel to the farms where it’s harvested (BBC)

 

Tea education centres, too, can offer a more intimate look at Longjing, including guided farm visits, wok-firing workshops and expert-led tasting experiences. After leaving the tea fields, I head to one such school, Suve Tea Institute to meet tea instructor Chen Yifang, who had just sourced a batch of the season’s mingqian leaves.

All the effort that goes into producing a batch of Longjing ultimately expresses itself in the cup – a flavour so delicate and subtle that I always find it hard to describe. Chen likens its clean, fresh quality to the gentle aroma of spring pea flowers or fava bean blossoms – softly floral, mildly nutty, the faintest bit sweet.

“Part of the beauty is its understatedness,” says Chen, as she pours me a cup brewed from leaves harvested nearby just a few days earlier. Longjing, she explains, is a ritual that rewards patience and attention. She draws a comparison to bolder beverages, like black tea and coffee: “They will tell you very directly, ‘This is what I am,’ whereas with Longjing, you must spend time sitting with it before it reveals its personality.”

For years, Zhenghua worried that his craft might fade out with his generation. Many children of Longjing growers left the villages, pursuing university education and higher-paying jobs in the cities. Now, more people are returning to the fields to learn their parents’ skills, including his son, as the tea’s market value makes it a more sustainable livelihood than it once was. There is another pull, too: a recognition that if they do not inherit the knowledge, it could well die with their parents.

Megan Zhang More younger people are returning to the villages to harvest Longjing now (Credit: Megan Zhang)
More younger people are returning to the villages to harvest Longjing now (BBC)

 

“Young people who grew up on these tea farms, they smell this every spring,” says Zhenghua. “This is the aroma of their hometown.”

Over many visits to my mum’s home region throughout my life, I’ve come to understand that what draws people to Hangzhou every spring isn’t only the tea. It’s also the chance to experience a precious, fleeting seasonal window, one when timing and terroir align to summon the year’s first buds from those misty hillsides. Nowadays, perhaps it is also an opportunity to bear witness to a time-honoured trade that may not endure in its present form forever.

[BBC]

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Lunatics of genius

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Brahms and Simon

Tales of Mystery and Suspense 2

A very different sort of murder mystery today, one of the few intended to provide laughter too. Written in the thirties, it deals with a murder during a ballet, its title being A Bullet at the Ballet. It was a collaborative effort by Caryl Brahms and S J Simon, to whom I was introduced nearly half a century ago by Robert Scoble, the friend with whom I have discussed and shared books more than with anyone else.

Brahms was a ballet critic whose parents were Jews who had emigrated to Britain from Turkey while Simon was born in Manchuria in 1904 to a White Russian Jewish family, and then ended up in England, where he was renowned as an expert on bridge.

Having been fellow lodgers in London, they wrote together for newspapers and then tried out a novel. A Bullet in the Ballet, published in 1937, was an instant success, and over the next few years they published a couple of sequels, involving the Ballet Stroganoff, and the detective Adam Quill, who was tasked with investigating the first murder.

Brahms and Simon

In Robert’s Books and other reading around the world, published by Godage & Bros a few years back, I mentioned the first of these and also what then entertained me most, when I read these books in his luxurious flat in Chidlom Place in Bangkok, No Bed for Bacon, a romp through the days of Queen Elizabeth. Historical absurdities were their other forte, but in this series, I will confine myself to the three books that feature Quill, and the gloriously dotty Ballet Stroganoff.

It is owned by the impresario Vladimir Stroganoff, whose motley crew includes the once renowned ballerina Arenskaya, who is now his trainer, and the avant garde composer Nicolas Nevajno, who wants anyone, as he meets them, ‘to schange me small scheque’. The dancers are less memorable, except that two of them are the murder victims, both when dancing the title role in ‘Petroushka’. Neither Anton Palook nor Pavel Bunia was especially popular, and Quill was on the point of arresting the latter for the murder of the former when, having put it off at Stroganoff’s request so that he could dance the title role, the suspect was killed in the course of the ballet.

Both before and after the second murder, Quill is confronted with multiple motives, multiple means and multiple opportunities, to cite the formula in the Detective’s Handbook he has studied. Palook for instance had affairs with lots of girls but had recently taken up with the homosexual Pavel, whose lover, his dresser Serge Appelsinne, was profoundly jealous. The young dancers who performed brilliantly in the final performance of Petroushka, with which the novel ends, were also involved, in that Palook had been friendly towards Kasha Ranevsky, making Pavel jealous; and the ballerina Rubinska, involved with Palook, had tried to wean him away from Pavel, an appeal Pavel may have heard, after which she met Palook again just before he died, and he had said he was sick of being chased since his affairs were never lasting.

Preposterous intricacies one might have thought, had I not come across similar exchanges when we hosted the London City Ballet in Sri Lanka in 1985 on a British Council tour. Brahms and Simon simply push everything well over the top, with the characters pursuing their own obsessions without reference to the predilections, let alone the obsessions, of the others, all of which makes for high drama at a cracking pace.

But in dwelling at length on the plot of this first Brahms and Simon novel, I have omitted what perhaps provides the most zest to the plot, the constant bickering between Stroganoff and his orchestra, his efforts to avoid his relentlessly talkative Secretary, the endless stream of catch phrases, such as the Wiskyansoda Stroganoff offers his visitors, only to find there is none, just Russian tea, or the vigilant mothers determined to bag the best roles for their daughters.

Then there is Arenskaya, who flirts with the incredibly handsome Quill, and turns out to have had an affair years back with his boss, the usually grumpy Snarl, who softens surprisingly when he comes to a performance. And her husband, Puthyk, who was not at all jealous it seemed of her having had an affair with Palook, reminisces endlessly of his own wonderful performances in the past, though now at most he can only be used in crowd scenes.

Quill – and the ubiquitous press – meanwhile discover that a third Petroushka had died while playing the role, in Paris, before the two deaths in London. He had been found dead in his dressing room, and suicide had been the verdict, but now it was assumed that he too had been murdered, and there was thought to be a jinx on anyone dancing the title role. But Stroganoff was determined to go ahead with the gala performance he had planned, for which he hoped Benois, who had been involved in the original production with Njinsky, would come.

Though it was increasingly clear Benois would not appear, with tickets selling like hot cakes, in anticipation of a death, there was no way Stroganoff would cancel the performance. And his great rival Lord Buttonhooke, the newspaper proprietor, who it was rumoured wanted to start a ballet and had persuaded Palook to come over to him, had headlines about another murder all ready as the curtain rose.

Rubinskaya had earlier begged Quill to arrest Ranevsky, who was to dance the roll, as the only way of saving him, but there is no reason to do this, and so the performance does happen, with inspired performances by both of them. And, so, the murderer, who could not bear to have the role traduced, refrains from killing Ranevsky, and confesses to the earlier crimes. ‘Lord Buttonhooke strode from the theatre, a disappointed man’.

But that is not the end, for there is an epilogue in which Stroganoff writes to Quill to plead for kindness to ‘not an assassin, but an artist, that you have put in that pretty home in Sussex’. The letter has other elements that take up themes from the book, such as a new ballet by Nevajno, with ‘a scene where the corps de ballet is shot with a machine-gun. London will be shaken.’ And he will not tell Kasha and Rubinska that they dance better every day ‘lest their mother ask for bigger contracts’.

It was no wonder that the book was a triumph. The ballet scenes, if brilliantly exaggerated, did create a sense of how such spectacles were created, the murder mystery was full of suspense with the two deaths – and the discovery of another, treated earlier as suicide – well paced, and the climax when the ballet ends without another murder was gripping.

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Mysterious Death of United Nations Secretary General Hammarskjöld

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Wrekage

LEST WE FORGET – IV

Dag Hjalmar Agne Carl Hammarskjöld

(‘DH’ for short) was appointed Secretary-General of the United Nations in April 1953, when he was 47 years old. He was a member of an aristocratic Swedish family, a diplomat and reformer, in whom the Western world and United States of America had faith to do the ‘right’ thing. His mission was to prevent minor skirmishes among countries from escalating into a third World War. In short, his role was to implement the UN Charter (Peace, Security, Development and Human Rights).

The Korean War was just ending, and the Cuban situation (1956 to 1958) occurred during his watch. The Vietnam North/South conflict had also commenced in 1955. So did the Suez crisis in 1956. By 1960 another crisis had occurred in the Congo. He applied himself with religious zeal, sometimes trusting his conscience, judgement and personal commitment to maintain the UN’s integrity during the Cold War. As a result, he was not too popular with the US, the UK and Russia, which at one point wanted him to resign. By now DH was serving a second term as Secretary-General.

In the Congo, mineral-rich Katanga province wanted self-rule with Moïse Tshombe as its head, while highly paid white mercenaries (dogs of war?) ran his military. Thus, with this situation creating a civil war, things were going from bad to worse. By now UN troops were fully involved in ‘peace keeping’ in the Congo. DH had made three trips to Congo before, and his fourth trip, on September 13, 1961, was to include a visit to Katanga for a meeting with Tshombe in the hope of negotiating for peace. His first destination was Leopoldville, now known as Kinshasa, the capital of the Democratic Republic of Congo (DRC). There, he spent about four days before flying to Ndola in Northern Rhodesia, the country now known as Zambia. Ndola was situated at the Katanga border.

The flight took off from Leopoldville shortly after 3 pm on September 17. For security reasons, the flight was initially planned for another destination, then diverted to Ndola. The aircraft was a four-engine Douglas DC-6B, with ‘Aramco’ markings, Swedish registration SE-BDY, and named Albertina. With DH there were 15 other passengers and crew on board.

It was midnight when the aircraft overflew the Ndola airport, tracking towards a ground-based Non-Directional radio beacon (NDB) in the vicinity. To observers on the ground, everything about the aircraft looked ‘normal’. This was 1961, and it was still not mandatory to have a Flight Data Recorder (FDR) and Cockpit Voice Recorder (CVR) – collectively known as the ‘Black Box’ – installed onboard. The air traffic control tower had neither radar nor voice-recording facilities.

The navigational equipment on the DC-6 was primitive by today’s standards. A needle over a compass dial in the Automatic Direction Finder (ADF) pointed to the beacon which was located close to the final approach. The ‘modus operandi’ was to fly past the beacon (which is at a known position relative to the airport). Pilots know they have flown past the beacon when the ADF needle swings around from pointing toward the nose of the aircraft to the tail. From overhead that Ndola NDB the aircraft is expected to fly on a heading of 280 degrees for 30 seconds, then carry out a course reversal, known as a ‘procedure turn’, offset to the right at 45 degrees (heading of 325 degrees) and flown for precisely 60 seconds, after which another turn is made to the reciprocal direction, in this case 145 degrees, back to intercept the extended centreline of the runway, with a bearing of 100 degrees to the NDB and the runway beyond. All this while descending to a minimum altitude of 5,000ft, as dictated by a landing chart for the airfield approved by the operating airline and local civil aviation authority. (See Chart 1 and 2)

In Chart 1, the significant high ground is only indicated to the north and south of the runway. There is no significant high ground to the west. Because pilots don’t know the exact distance from the airport, an acceptable technique used was ‘dive and drive’. Consequently, Albertina flew over Ndola at 6,000 ft or lower, and when turning ‘beacon inbound’ the pilots asked for a lower altitude of 5,000 ft to descend and maintain. While on descent, the DC-6 impacted unmarked high ground at 13 minutes past midnight, when only 9 miles from the airport.

Meanwhile in Ndola, a welcoming party awaited, consisting of Lord Alport, British High Commissioner to the Federation of Rhodesia and Nyasaland, Moïse Tshombe, the Katangese separatist leader, who had been brought in from Congo for talks with DH, and many others. They waited at the airport until shortly after 3 am, when the runway was closed and landing lights were turned off. Strangely, the air traffic control staff in the tower did not observe fire or noise of the crash and assumed that the aircraft had diverted to another airport. (See Image Wreckage)

The impact with trees occurred at a height of 4,357 ft above sea level, slightly left of the extended centreline of the runway. The aircraft should have been at least at 5,000 ft above sea level, as required by the approved landing chart. Significant high ground west of the airfield was not indicated in that chart.

The wreckage was found later in the afternoon of September 18, in the jungle, with over 80% of the airplane destroyed by fire. Although 14 passengers and crew were burnt beyond recognition, one bodyguard, Sergeant Harold Julien, survived for six days before dying in hospital. DH’s unburnt dead body was discovered with grass on his hands, propped up by an anthill and a playing card, the Ace of Spades, under his collar! The first UN officer to arrive at the crash site, Major General Bjørn Egge, a Norwegian, observed that there was a clean bullet hole in DH’s head that was covered up during the postmortem. So, did DH survive the crash to be killed afterward?

In the 24 hours preceding the crash, two of the three crew members had been on duty continuously for 17 hours, while the handling pilot’s duty time was within limits. The Rhodesian accident investigation team that conducted the inquiry declared it was ‘pilot error’. The following day, former US President Harry Truman, who was a confidant of incumbent President John F. Kennedy said that “Hammarskjöld had been killed”. Of course, pilot error was the most convenient explanation, because dead men cannot defend themselves. Therefore, those findings were disputed as there can be reasons why the pilots were forced to fly low. In other words, the cause behind the cause needed to be found.

In one of two UN-authorised inquiries, the UN’s Deputy Spokesperson, Farhan Haq, said that “significant new information” had been submitted to the inquiry for this latest update. This included probable intercepts by the UN member states, of communications related to the crash; the capacity of Katanga’s armed forces, or others, to mount an attack on the DC-6, SE-BDY; and the involvement of foreign paramilitary or intelligence personnel in the area at the time. It also included additional new information relevant to the context and surrounding events of 1961.

Additionally, in 1998 Archbishop Desmond Tutu, Chairman of South Africa’s Truth and Reconciliation Commission (TRC), stated that with regards to DH’s death in 1961, Britain’s MI5 (Military Intelligence, Section 5), the USA’s Central Intelligence Agency (CIA) and South African Intelligence were implicated in letters where information was withheld before by member nations of the UN.

One possibility was the planting of plastic explosives in the wheel bay of the DC-6 when it was on the ground in Leopoldville. Pieces of wreckage were not spread out over the jungle. The aircraft crashed in one piece, creating a swathe in the treeline. So, it could not have been an explosion.

Many Congolese natives, including ‘charcoal burners’ in the jungle, said that there was more than one aircraft in the sky that night. These reports were dismissed as unreliable by the original accident inquiry. It was possibly because in 1961 the Rhodesian authorities only accepted ‘white’ witnesses’ evidence. So, was the DC-6 shot down, and if so by whom?

A High Frequency (HF) radio listening station in Cyprus monitored a transmission of a highly decorated, ex-Royal Air Force World War II pilot, operating in the Congo as a mercenary with the nickname ‘Lone Ranger’, giving a running commentary while shooting a large passenger aircraft from his modified Fouga CM.170 Magister two-seat jet trainer airplane. The pilot, Jan Van Risseghem (from a Belgian father and English mother), may not have known whose aircraft he was shooting at. He was only told of the mission he needed to accomplish. Besides, he had a strong alibi set up by the Belgian State Security Service (VSSE), saying that he was nowhere in the vicinity. Documents released later confirmed that the alibi was pure fabrication. It is also said that the American Ambassador to the Congo sent a secret cable saying that Van Risseghem was the possible ‘attacker’! (See Images Jan Van and KAT 93)

Harold Julien, the sole survivor of the crash, stated from his hospital bed that the aircraft caught fire before it crashed. But his evidence was disregarded on the grounds that he was seriously ill and delirious before he succumbed to his injuries.

Then, Land Rovers being driven to and fro were observed by natives in the early morning of September 18. This led to speculation that the occupants were suspected French mercenaries attempting to reach the crash site and destroy any evidence of foul play before the official party arrived. Questions were also asked as to how the Ace of Spades (or Six of Spades) playing card ended up under DH’s collar?

Further reports mentioned a de Havilland Dove aircraft flying in the vicinity of the crash. Was it part of an attempt to bomb the DC-6 from a high altitude?

On the other hand, the DC-6 was making a very difficult approach and landing at night, with the possibility for pilots to be distracted by optical illusions. These have been identified and labeled as potential killers by scientists and aviation accident investigators in subsequent crashes. With no lights in the foreground, they would have lost sight of the natural horizon in the dark. Years later, this phenomenon was called a ‘Black Hole’. Did the captain attempt to do a visual approach into uncharted territory, while disregarding the radio navigational beacon landing aid, and collide into high ground, a type of accident described as a Controlled Flight into Terrain (CFIT)?

The verdict is still open

Today’s airliners, equipped with Inertial Navigation Systems (INS) and satellite-aided Global Positioning Systems (GPS), can be set up by the pilots to fly an Artificial Intelligence (AI) generated approach angle, independent of ground navigational facilities, to prevent this type of CFIT accident. Besides that, all turbine-powered aircraft carrying more than nine passengers must be equipped with a Ground Proximity Warning System (GPWS) as mandated by law.

Going even one better, there are enhanced radar displays to show the presence of high ground. Unfortunately, the DC-6 that the Secretary-General of the UN travelled in was powered by four piston engines.

It was said of Dag Hammarskjöld that he served as Secretary-General of the UN with the utmost courage and integrity from 1953 until his death in 1961, setting standards against which his successors continue to be measured.

He is the only Nobel Peace Prize Laureate to have been awarded the distinction posthumously.

God bless all secret service agencies of the world and no one else!

by GUWAN SEEYA

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