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‘Place of refuge’ – the international debate

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By Capt. Ranjith Weerasinghe

Ships are built to conform to highest safety standards under the guidelines of the International Maritime Organisations (IMO). The stringent regulatory regime is further reinforced by the latest technology in modern day ships in ship design, building, operations, maintenance, management and competency of crew. However, there will always be ships in distress, regardless of what stringent regulatory regimes are followed as has been the case ever since man took to water transportation even before the invention of the wheel. When a ship is in distress, absolutely helpless at sea, help is inevitably sought by the ship’s captain. A distressed vessel struggles to get to the nearest coastal state for a place of refuge, and the denial of entry can lead to disaster. If a ship’s captain requested assistance in case of a peril at sea, and all the ports in the world decides not to take the ship to a place of refuge, what would the world expect the ships’ crew to do?

Historically and traditionally, ships in distress have been given whatever help by vessels in the vicinity and the coastal states authorities when they happen to be in coastal waters. Help includes providing a sheltered place to manage the problem, to prevent it from further deterioration, assist the crew, provide repair facility, transfer cargo, firefighting, salvage, towage, or assistance to save lives and property and protect the environment. But with notable oil tanker disasters resulting in unprecedented environment pollution incidents, by mid 70s, the coastal states became more concerned about granting place of refuge to vessels in distress in danger of fire, explosion, grounding, sinking, etc,. As a result, there is an ongoing international debate and a proposal for introducing an international law to grant ‘place of refuge”. This debate received international attention in early 2000 when several incidents took place due to the “refusal or denial of place of refuge”. One was Motor Tanker Erika in Dec 1999; it broke in two and sank off the coast of France and the other was MT Prestige in 2002, which broke up and sank off the coast of Spain; both vessels had been denied place of refuge and they caused extensive environmental damage. Similarly, a tanker named MT Castor with a structural failure could not find a place of refuge and was towed around in the Mediterranean Sea for more than a month. Finally, the Salvors removed the cargo oil at sea by ships to ship transfer and saved the vessel.

Against this backdrop, there was a compelling need for IMO to seek an agreement amongst member states to make a law with respect to “place of refuge”. Up to date it has not materialised due to concerns of coastal states. Short of such an agreement, the best the IMO could do was to adopt two resolutions in 2003, and they relate to vessels in distress or needing assistance:

1. A949 (23);

Intended for use when a vessel is in distress and cannot be left in the place without moving to safety

2. A950 (23)

Requiring all coastal states to establish a Maritime Assistance Service.

 

CONTAINER CARGO FIRES

Besides oil tanker fires, in recent times there have been fires on board container ships. The international insurance industry says one container ship fire occurs every two weeks somewhere in the world. In recent times, container ships MSC Flaminia, Maersk Honam, and Yantian Express suffered heavy damage and loss of life due to fire, and a long time was taken to find a place of refuge for it to discharge the cargo. A fire on board a container vessel is first a risk to the seafarers and the environment and secondly entails a very heavy economic cost–first, the cost of firefighting, salvage, towage and damage to the ship and cargo, and secondly, the cost of the ‘cargo related business interruptions’, which affects industries dependent on ‘just-in-time’ logistics.

Although there has been no instance of denial of ‘place of refuge’ in Sri Lanka, ships passing through its territorial waters are always in probable, unintended “place of refuge”. We also have had a few incidents of vessels in distress off our coast over the years. Whether we offer a place of refuge or not, as a coastal state, we have an obligation to be prepared to assist any distressed vessel. Such preparedness is critical and essential not only in view of the assistance sought by the vessels in trouble but also to avert probable environmental disasters that follow if the timely and effective assistance is not provided. In the said international context, Sri Lanka’s emergency preparedness for such contingencies is to be examined in response to MAS 950(23) Resolution.

The case of the fire-stricken X-Press Pearl at Colombo anchorage and the fire on board MT New Diamond tanker off the East coast of Sri Lanka provide lessons. In both cases it was so sad to see two marvelous ships being engulfed in a fire for days and the crew members suffering injury. Fortunately, New Diamond with 300,000MT crude oil did not lead to an environment disaster. But X-Press Pearl did.

In the case of X-Press Pearl, the following have been reported in the media:

Long before the vessel arrived in Sri Lanka its crew had noticed an acid leak from a container after leaving Jebel Ali in the UAE for Hamad in Qatar. In Hamad, the ship’s captain requested the discharge of the container, but his request was turned down.

 

Leaving the Hamad port, the Captain asked the ship owners to arrange for return to Jebel Ali to discharge the container, but the owners thought such action was not necessary as arrangements were expected at next port Hazira in Gujarat. The Port of Hazira refused to discharge the container at issue. Finally, the vessel arrived in Colombo as the next scheduled port and not as ‘a port of refuge’.

Some of the questions that Sri Lanka should ask in general are as follows;

In the case of vessel requesting a ‘a place of Refuge’, do we have an evaluation mechanism to make right conclusions? Do we have a well thought-out emergency response plan in place?

In the case of vessel needing assistance, are we ready to honour our international obligations to provide assistance as regards fires, imminent danger of grounding or sinking, preventing actual or probable environmental disasters, salvage and towage, calls for urgent medical emergencies.

While promoting Sri Lanka as a ‘maritime hub’, have we given serious thought to these aspects.

As for the X-PRESS PEARL incident, we should examine the following:

At the time the X-Press Pearl reported a presence of Nitric acid leaking container, and subsequently signs of fire inside container, did the authorities concerned carry out any assessment and evaluation with a view to taking necessary action?

Did the authorities have the information about the cargo on board the distressed ship—argo manifest and stowage plan – reference bay plan)?

Did the fire erupt in the container with 25MT of Nitric acid, which by nature is not flammable by itself but a highly corrosive oxidant in the Class 8 in the “International Maritime Dangerous Goods Code” (IMDG Code); if it leaks into other combustible materials, that can catch fire and become explosive.

If the Captain of the vessel had reported that the particular container identified from cargo manifest with nitric acid was leaking and there was a yellow fume, what should have been the evaluation? For example, in India, dangerous cargo cannot be handled without the approval of the DG Shipping as the highest state official of the sector, but in Sri Lanka it is left to the Ports Authority to take the relevant action

The vessel arrived at the Colombo Anchorage in early hours of 20 May 2021, and for two three days a yellow smoke had been emanating from the ship, according to media reports. Nitric acid must have leaked and mixed with something else, causing the fire.

If it is true that the issue was initially confined to that particular container with a manageable nitric acid leak, what prevented the SLPA from taking action to berth the nearly brand new vessel on priority basis and remove the container without waiting for her scheduled berthing slot? If we lack facilities to do so, we have to acquire them. If not, ships will face disasters for no fault of theirs as no ship crew or master inspects the stowage of cargo inside a container; it is left in the hands of shore authorities.

 

MT NEW DIAMOND AND THE LESSONS (NOT) LEARNT

As for MT New Diamond, when the incident took place about 20 miles off East Coast of Sri Lanka, with 300,000 MT of crude oil, we realised a few shortcomings, but do not seem to have learnt any lessons as can be seen from the following among others:

* Absence of a “responsible authority” prescribed by Merchant Shipping Act to take charge of the situation in the event of any maritime emergency

* Absence of an effective Emergency Response Plan,

* Absence of defined roles for DGMS, MEPA, SL NAVY, SLPA, NARA, etc.,

* Absence of Defined Emergency Facilities from other agencies such as Airports, Customs, Immigration, local government authorities, etc.,

* Absence of proper and sufficient facilities for such emergency response.

(Notably we did not have firefighting capability, especially with large volume high expansion foam system with high pressure pump that could be fitted on a tug with storage of at least 100 CBM foam in 1CBM Intermediate Bulk tanks that can be loaded on to supporting vessels).

* Lack of trained salvage team and equipment at the disposal of the responsible authority

* Non-availability of a mechanism to mobilise enlisted supporting vessels, equipment and personnel.

* Absence of a responsible communication mechanism

* Lack of rewarding structure for all involved in the rescue effort

 

Most of all, action must be taken to enhance the reputation of the country as a capable maritime nation which in turn helps the Sri Lankan maritime industry.



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Features

Govt. actions must be for people’s benefit

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President at the Independence Day ceremony on Saturday

By Jehan Perera

The government celebrated the 75th Anniversary of its independence from colonial rule under tight security.  President Ranil Wickremesinghe did not even deliver a speech on the occasion.  He had an excellent written speech, but chose not to deliver it for reasons not known.  The speech was circulated later. The exclusion of the general public from the parade grounds was another notable feature of the Independence Day event.  Under normal circumstances, Galle Face green where the celebration took place, is packed with people who come to enjoy the sea, the fresh air and the vast expanse of greenery.  The spectacle of a military parade and an air show provided an occasion that people would not have wished to miss if they had been given the chance to attend it.  But the government was clearly insecure and wanted to make sure it controlled the situation, which accounted for large security deployments.

The general public were kept away from the celebrations as the government feared that if they were permitted into the area some of them might protest.  Indeed, the previous night a sit down public protest (satyagraha) organised by a mostly youthful group of protestors was water cannoned and forcibly broken up.  The youth were protesting against the misallocation of resources for celebration at a time when the country’s people have little cause to celebrate.  Although there was a large presence of security forces, they stood by when a group of political thugs attacked the peaceful protestors.  When the satyagrahis resisted the attack they were chased, beaten and arrested by the security forces. The government was less concerned to win the hearts and minds of its people than to conduct its Independence Day event without disturbance.

 Ironically, the manner of the celebration, with the general public not present at the site of celebration, and security forces out in strength on the roads, was reminiscent of the days of war that the country experienced decades past.  In those days too, the Independence Day celebrations took place under tight security, with the people preferring to stay in their homes than to brave possible LTTE bombs. This throwback to the past is relevant as those years of war have contributed in no small measure to the economic collapse that has befallen the country and blighted the life of its people.  More than 70 percent of the population have reduced their food intake and 40 percent of the population have descended below the poverty line.  In recognition of the connection between ethnic conflict and economic underdevelopment, President Wickremesinghe has prioritized a political solution to the ethnic conflict without delay.

PUBLIC ANGER

The public protests against the celebration of Independence Day was not only in Colombo but also in other parts of the country, most notably in the north of the country.  The main Tamil political party as well as smaller ones also called for a boycott of the Independence Day events and did not participate in them.  University students in Jaffna declared a hartal and flew black flags.  Most of the people, however, showed no interest either way. There was no display of national flags in a spontaneous manner nor did the government make such an appeal.  It seemed as if the government was celebrating Independence Day for itself.  Gleaming new vehicles with police escorts drove in assorted governors, ministers and other dignitaries into the stalls where they would seat themselves with all the national television stations focusing on them. However, to the general public watching the celebrations on their television sets, the sight of the luxury vehicles bearing the dignitaries would have been infuriating.

 Not even a year ago, these same political leaders were hiding in the face of the protest movement that took to the streets in the aftermath of the collapse of the national economy and declaration of national bankruptcy.  The general public, many of whom had never taken part in public protests, came to the streets to protest.  They came from near and far, children with their parents, the elderly and the differently abled, to demand the exit of the government leaders who had stolen the wealth of the country and brought the masses of people, including them all, to near penury.  These same people who watched the Independence Day events on television would have been greatly angered to see those same political leaders now disembarking from luxury vehicles while they scraped the bottom of the barrel in their homes.  What they demand from the government, both in street protests and in their homes, is an end to impunity for corruption, abuse of power and extravagance in  public life, which the government appears to be shying away from.

 The question arises for whose benefit was Independence Day celebrated in this manner?  Independence Day in a situation of economic collapse was celebrated in a most unimaginative manner.  The government tried to heed the public opprobrium regarding the cost of the event, and reduced the size of the military parade.  It also axed the cultural parades that represent the aesthetic side of life.  Independence Day should have been celebrated differently, not for the political leaders and not for the international community, but for the people.  This event did not receive much international publicity.  It would not have changed the way the world sees us.  It did not touch the hearts of the Sri Lankan people either.  They were watching on their television sets and conscious of the expenditures that were being incurred for no good reason, and certainly not for their benefit.

BOLD PLEDGES

The celebration of Independence Day could have been done differently.  The government could have recognised the poverty that has ravaged the lives of the people.  It could have organised an Independence Day event that demonstrated an ethos of care for the people.  It could have brought a thousand schoolchildren from the poorest families around the country, and from all ethnicities, religions and castes, and made them a symbolic presentation of schoolbooks and school clothes that would have reflected the government’s commitment to invest in the country’s children.  This was an opportunity lost and would work to the detriment of the government which will be reflected in its electoral performance at the forthcoming local government elections. President Wickremesinghe’s pitch that the country needed a plan to become a developed country in 2048 is to miss people’s concerns to get by the day.  In his televised speech to the nation he said “Let us devote ourselves, unite as children of one mother. Let us make our country one of the most developed in the world by 2048, when we will celebrate 100 years of independence.”

 Despite all the criticism of the priorities of President WIckremesinghe and the government there are still many who continue to place their hope that the president will succeed in problem solving that is in the national interest.  One of President Wickremesinghe’s bold pledges has been to resolve the ethnic conflict that gave rise to three decades of war and to reach a situation of national reconciliation in this 75th year of Independence and “unite as children of one mother”.  When he first committed himself to this task three-months ago, there was some anticipation that this ambitious task may even occur prior to Independence Day itself, or “mission accomplished” would be announced on the auspicious day.  This has not been the case and it appears that even the first steps are yet to be made.  Now the focus of attention will be the president’s policy statement on February 8 when he reconvenes parliament following its prorogation by him a fortnight ago.

 National reconciliation in an ethnically divided society is never an easy proposition.  It requires the support of multiple actors in multiple sectors.  An indication of the president’s determination in this regard was the singing of the national anthem in both Sinhala and Tamil languages at the Independence Day event. This was after a lapse of four years and reflects the president’s resolve to overcome the divisions of the past.  It must be noted that it was under his leadership as prime minister in the period 2015-19 that the national anthem was sung again in Tamil on Independence Day after the passage of many decades.  There are elements in the president and his government that require support from civil society.  We need to overcome the legacy of past mistakes and forge ahead to a future in which lessons have been learnt and mistakes not repeated.

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Issues in fully implementing the 13th Amendment – Police Powers

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President J. R. Jayewardene and Indian Prime Minister Rajiv Gandhi at the signing of the Indo-Lanka Accord, which paved the way for the 13th Amendment..

By C. A. Chandraprema

While most provisions of the 13th Amendment to the Constitution have been implemented, sticking points have persisted with regard to two matters – the devolution of police and land powers. Appendix I of the Provincial Councils List in the Ninth Schedule of the Constitution provides for the devolution of police powers. The implementation of these provisions will entail the division of the Sri Lanka Police Force into a National Police Division which includes special units such as the CID; and a Provincial Police Division for each Province, headed by a DIG.

According to Section 6 of Appendix 1, the IGP shall appoint a DIG for each Province with the concurrence of the Chief Minister of the Province. If there is no agreement between the IGP and the Chief Minister, the matter will be referred to the National Police Commission, which after due consultations with the Chief Minister shall make the appointment. Thus, the effective appointing authority of the provincial DIG is the Chief Minister. Section 11 stipulates that all Police Officers, serving in units of the National Division and Provincial Divisions, in any Province, shall function under the direction and control of the provincial DIG who, in turn, will ‘be responsible to’ and ‘under the control of’ the Chief Minister in respect of the maintenance of public order and the exercise of police powers in the Province.

According to section 12.1, it is the Provincial police forces that will maintain law and order and be responsible for the prevention, detection and investigation of all offences in the Province except for the 11 specified offences allocated to the National Police Division which are as follows: international crimes, offences against the State, offences relating to the armed services, offences relating to elections, currency and government stamps, offences against the President, Ministers, MPs public officials, judges, etc., offences relating to state property, offences prejudicial to national security, offences under any law relating to any matter in the national government list and offences in respect of which courts in more than one province have jurisdiction. Most of these offences are not really a part of day to day police functions and occur infrequently. Thus, under the 13A, it is the Provincial Divisions which will handle the bulk of actual day to day police work.

Provincial Police to the forefront

Signifying the extent to which the National Police Division will be expected take a back seat, Section 10.1 of Appendix 1 requires members of the National Police Division to ordinarily be in plain clothes, except when performing duties in respect of the maintenance of public order. For all practical purposes, the only uniformed police force, visible to the public, will be the Provincial Police. Recruitment to the National Police Division is to be done by the National Police Commission and to the Provincial Police Divisions by the respective Provincial Police Commissions. According to Section 4, the Provincial Police Commissions will be made up of a) the Provincial DIG, b) a person nominated by the Public Service Commission, in consultation with the President; and c) a nominee of the Chief Minister of the Province. Thus the Chief Minister has complete control over both the Provincial Police Chief as well as the Provincial Police Commission.

In addition to the above, according to Sections 7 and 8 of Appendix 1, the Provincial Police Commissions, which are completely under the sway of the Chief Minister, will have a say in deciding on the cadre and salaries and even the type and quantity of firearms and ammunition used by the Provincial Police forces. However, the potentially horrendous implications of Sections 7 and 8 are mitigated to some extent by the proviso that ‘uniform standards and principles’ shall be applied across the board with regard to these matters for all Provincial Police Divisions.

When recruitment for the Provincial Police Forces are to be carried out by Provincial Police Commissions which are completely under the sway of the Chief Ministers of the Province, the politics of the Province will become the politics of the Provincial Police force, as well. The most obvious foreseeable result of recruiting, within the Province for the Provincial Police force, is that the Northern Province Police force will be predominantly Tamil, the Eastern Province police force largely Tamil and Muslim, and the police forces of all other Provinces, predominantly Sinhala. The implications of politicians, elected on communalistic political platforms, having armed police forces under their control, to further their political objectives, should be clear to anybody. For a country like Sri Lanka which has experienced protracted conflict between ethnic and religious groups, the police powers provisions in the 13A are a guaranteed recipe for disaster.

An equally important consideration is the fact that crime prevention, detection and investigation is very much an inter-provincial, countrywide activity in this country. The creation of nine separate Provincial Police Divisions, answering to nine different lines of command, will seriously hamper the crime fighting capacity of the police which we now take for granted. Today, the IGP and the police force, under him, acts on the imprimatur of the national government, and its outreach extends to every nook and corner of the country. If the 13th Amendment is fully implemented, and the principle day to day police functions, such as maintaining law and order, and crime fighting, becomes the exclusive preserve of the various Provincial Police forces, whose authority does not extend beyond the borders of their Provinces, even pursuing a criminal across Provincial borders will become a tedious, process heavy with bureaucratic procedures and the entire country is going to suffer as a result. (The Colombo and Kotte city limits will not belong to the Western provincial police division but to a Metropolitan police under the National Division according to Item 1 on the Provincial Councils List.)

Readers may recall the 2005 incident during the ceasefire where some policemen, attached to the National Child Protection Authority went into an LTTE held area in search of a fugitive European pedophile and were arrested by the LTTE police. If the police powers in the 13A are fully implemented, in a context where some Provincial administrations are going to be openly hostile to the national government, as well as to other Provincial administrations, similar incidents will become day to day occurrences. The sheer practical impossibility of effectively carrying out police work in a small, densely populated country divided into nine separate police jurisdictions, manned by police forces under nine different lines of command was one of the main reasons why the police powers in the 13A have remained unimplemented for the past 37 years.

Political control over Provincial Police forces

While the IGP will nominally remain the head of the Sri Lanka Police force, even under the 13A, actual day to day police work will become the preserve of the provincial DIGs, acting under the direction and control of the respective Chief Ministers. Under Section 12.4(b) of Appendix 1, the IGP’s discretion in matters related to crime fighting will largely be centered on assigning investigations to units of the national division, like the CID, if he believes that is required in the public interest. But even to do that, he will need to ‘consult’ the Chief Minister of the Province and to have the approval of the Attorney General. Appendix 1 does not have provisions for any mechanism to enable the Provincial Police forces to work in unison in crime fighting or indeed any mechanism that can respond expeditiously to crime fighting requirements throughout the country.

The 13A was passed into law nearly four decades ago, in a different era. In the new millennium, the dominant trend has been to prevent politicians from influencing the police force but the provisions in the 13A seeks to do exactly the opposite.

Even though the new millennium has seen three Constitutional Amendments, (the 17th, 19th and 21st) promulgated for (among other things) the depoliticisation of the police force, Appendix 1 of the Provincial Councils List in the Ninth Schedule of the Constitution, was left largely untouched. I use the word ‘largely’, because the 17th Amendment did make a few changes in Appendix 1, but that was only to reduce the powers of the President. The Chief Minister’s powers over the Provincial Police remained untouched.

The total and complete politicisation of the police force, envisaged in the 13A, renders it out of step with the times. It was just a few months ago that the 21st Amendment to the Constitution was passed and under its provisions, the President cannot appoint the IGP unless the Constitutional Council approves his recommended candidate and the President cannot appoint the Chairman and Members of the National Police Commission except on the recommendations of the Constitutional Council.

How will the people of this country react if the police powers, envisaged in the 13A, are implemented, and they wake up one morning to find that the Chief Ministers have been given effective control over the appointment of the provincial DIGs and complete control of the Provincial Police Commissions?

How will the people react when they find that the country has been rendered ungovernable overnight because the police force has been fragmented into nine separate police forces, under nine different chains of command? The gestation period for the fallout resulting from a wrong decision with regard to the police powers laid out in the 13A will not be years or months but weeks and days. Hence this is an area where the government will have to proceed with great caution.

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Valentine’s Day gig in Kolkata

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Yohani: Super excited to perform in Kolkata

Yes, Valentine’s Day is fast approaching…one week from today, and there’s going to be lots of action on Tuesday, February 14th.

The showbiz scene will have plenty to offer those who celebrate this day.

Our very own Yohani, who is now a mega star in India, will be in Kolkata, on Valentine’s Day.

And this is what she has to say:

“See you all on 14th February, 2023, as I would be coming for my maiden gig in the city of joy. Super excited, thrilled to meet you all.”

However, a Valentine’s Gala will be celebrated, four days ahead – on February 10th – at the Claireport Place Banwuet and Convention Centre, in Toronto, Canada.

This event, they say, has been put together to support a very talented young band (youths of Sri Lankan origin), called BluPrint, whose passion for Sri Lankan music has thrilled Toronto audiences for the last seven years.

The members have been a part of a series of sold out concerts, starting from API concert series, in 2016, to BluPrint’s Roots, in 2022.

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