Oil Spills: Law on Liability with Special Reference to the Indian Regime*

I. Introduction

Rapid development and advances in science and technology have brought in their own basketful
of problems. The following two illustrations show the type of dangers and consequences thereof that one
has to face as a result of application of technology. Illustration one: an offshore drilling oilrig explodes in
the Gulf of Mexico, 41 miles from the coast of Louisiana while drilling an exploratory well. Illustration
two: a merchant vessel collides with a panama ship carrying oil cargo in Mumbai harbour. Two maritime
accidents, one common effect-OIL SPILL. Aftereffects- immediate shock to the system, immediate
toxicity and immediate mortality-marine life oiled, coastline tarred, total economic losses running into
millions of dollars and the entire picturesque landscape transformed into slicky black unsightly scenery.
Pictures of the Deep-Water Horizon in the Gulf of Mexico and MSC Chitra and MV Khalijia 3 collision
in the Arabian Sea splashed across the print and television media educe the latent potential of
environmental calamity a marine accident might cause. Accidental pollution of sea by oil is inevitable. It
is the price that mankind must pay for the benefits of an industrial society. Now the big question arises as
to who is to be held liable for accidents that lead to such catastrophic effects on the marine environment?

Oil is not only the most sought after but also the most transported commodity worldwide and because of
its physical and chemical nature, sea is the most convenient medium of transportation. Oil pollution is a
recurring phenomenon and has gravest effects on marine environment as well as economic conditions of
the people inhabiting the areas around the affected areas. Oil pollution of the sea began with the
introduction of oil fuel in ships and increased with the carriage of oil cargo in bulk and has been ever
increasing ever since. Oil pollution might result from collision of vessels carrying oil cargo or from its
bunkers. It might arise as an accidental escape or from the conscious decision of the master to lighten his
stricken vessel. Tanker accidents, however, are not the only source of oil pollution. Marine based oil
pollution can emanate either from ships or from offshore installations. Apart from dramatic accidental
spills like the Exxon Valdez, intentional discharges by the ships form an important cause of oil pollution.
The recent appearance of tar balls on beaches of Goa is an example of intentional oil discharge by a ship
on high seas. Natural seepages may also cause oil pollution but because it is not caused by human activity
such incidents are generally excluded from the ambit of marine based oil pollution.
The effects of oil spill are multitude in number and magnanimous in character. An oil spill contaminates
sea water, natural resources and coastlines; it adversely affects marine life if not permanently damaging
it. Oil spills don’t just create oily beaches, they can disrupt a broader range of ecological processes that
ultimately can affect wetlands, commercial fisheries, recreation, and species abundance for years to come.
Individuals with business interest in the environment of the region incur loss of earning of revenue owing
to the impairment of that environment. It is due to the hazardous effects of oil spillage a sound legal regime
is required in place to regulate the transport of oil by sea. States either enter regional as well as
international instruments or depend on common law principles or statutory laws to tackle the menace of
oil pollution. Fourteen international conventions and protocols provide a framework for international co-
operation to combat emergency situations threatening the marine environment. They were developed in
response to individual oil pollution incidents beginning with the Torrey Canyon accident which resulted
in the escape of 117,000 tons of crude oil in the western approaches of United Kingdom, causing extensive
damage to the British coast and the coast of France.
The international order is principally concerned with the avoidance of accidents at sea, and with
regulation of the operational discharge of oil in the cleaning of ballast tanks of oil tankers. Civil liability
for oil pollution has been the subject of international conventions for decades. The law of oil spill liability
is a mixture of civil liability and criminal regimes in certain jurisdictions like U.S. The liability and fund
conventions limit the liability of the ship-owner in case of maritime accident causing oil pollution.
Principles governing the law on oil spill liability are strict liability, channelling of liability, and caps on
liability limit. The issue arises as to the propriety of capping the liability limits in the cases of oil spill
where the implications of one incident are immense, costs involved in the clean-up are massive and the
damage caused to the natural resources and private parties is also grave.

India which has a vast coastline is susceptible to pollution by maritime oil spill accidents and in
the wake of recent incidents it has become imperative to analyse the Indian scheme of laws governing oil
spills and see whether it is appropriate enough to meet the challenges of claims arisen by such an incident.
The paper seeks to analyse the international liability regime in case of marine based oil pollution and the
status of Indian laws in dealing with accidental oil spills. Before analysing the liability regime, it would
be desirable to discuss briefly the different ways in which oil spill might occur.

II.OIL SPILL
Oil spills attracts great public attention because of the visible nature of the incident and the fact that people
encounter it generally either first hand on bathing beaches or from tragic pictures of ruined beaches, tar-
soaked waterfowls and poisoned fishes on television or the internet in case of spectacular oil spills like
Deep Water Horizon or MS Chitra.
Physical properties of oil are as such that it does not mix with water so when large quantities of
oil are discharged into the aquatic environment a thick layer of crude oil or refined petroleum oil spreads
out in a layer that hovers on top of the ocean. This release of oil into the marine environment is referred
to as oil spill. The crude oil after floating on ocean for some time changes its properties. Some of the oil
evaporates, some weathers and some emulsifies with water to form an emulsion resembling chocolate
pudding. This thickened emulsion then goes through wear and tear by wind and waves and forms tar balls.
An Oil spill might occur due to various causes. It could be due to an operational or an accidental discharge
in the sea/ocean.
A. Operational Discharges
An oil spill might be caused by operational discharge from a crude oil tanker or ship. The problem
is bigger in case of tankers. After the tanker has discharged its cargo, a proportion of it remains in the
tanks, caught mainly on the horizontal surfaces of the joists which give the tank its structural strength.
Such clingage must be removed regularly to avoid the risk of explosion and this was traditionally done by
washing the tanks with water. This water is then to be discharged into the sea. Prior to 1960’s this was
done without separating the water from oil. After the 1962 revision of the 1954 International Convention
for the Prevention of Pollution of the Sea by Oil, a technical solution of the oil discharge problem was
designed by the oil industry. The process so designed is called Load on Top (LOT) which is an excellent
anti oil pollution device however, not all the tankers have adopted the device due to some practical
difficulties.
Other than tankers, vessels which burn bunker C or other heavy fuel oil face the problem of fuel
oil purification. During a voyage the purification of the fuel oil produces a quantity of sludge which is
stored in sludge tanks but eventually must be discharged to a shore reception facility or to the sea. Also,
almost inevitably pumps, tanks and machinery leak small quantities of various types of oil mainly
lubricating oil. This can amount to appreciable quantity. Disposal of oily ballast is also a problem that
many dry cargos ships face. This problem arises where the vessel has to use its bunker tanks for water
ballast to ensure stability.

The oily ballast is normally discharged only when the vessel is nearing port. Tarring of Goan beaches is
an example of an operational discharge by a ship near the coast.
The International Convention for the Prevention of Pollution of the Sea by Oil, 1954 adopted
under the auspices of IMCO recognized that most oil pollution resulted from routine shipboard operations
such as the cleaning of cargo tanks. OILPOL’54 prohibited the dumping of oily wastes within a certain
distance from land and in ‘special areas’ where the danger to the environment was especially acute. In
1962 the limits were extended by means of an amendment adopted at a conference organized by IMO.
B. Accidental discharges
Accidental spillage of oil from ships occur either in association with an operational procedure
aboard ship or with an accident to the vessel. Examples of accidents that might occur during operational
procedure are -while loading or discharging oil cargo, lightening, bunkering, ballasting or DE-ballasting.
The most likely causes of accidental oil spills are grounding and ship to ship collision. Structural failures,
foundering and loading-unloading errors can also cause sizeable spills; in these cases, the human element,
which can play a role also in case of grounding and collision is particularly important.23 Generally, most
incidents occur in association with operational procedures aboard the ship, but most oil spills occur
because of accidents to the vessels.
From 1967 Torrey Canyon disaster till the recent sinking of Chitra in the Arabian sea in 2010, the world
has witnessed many accidental spillages by ships that have shook human sensibilities from time to time.
A series of tanker accidents occurred in and around United States waters in the period of 1976-1978 the
most important of them being the stranding of Argo Merchant that ran aground off Massachusetts in
December 1976. On March 16, 1978 the world witnessed another catastrophic accident that of the Amoco
Cadiz which was then considered to be the worst oil spill till that time as it destroyed marine life
extensively and ruined the beaches. Exxon Valdez disaster followed in 1989 which was highly televised
and led to a string of litigation and ultimately the passing of Oil Pollution Act, 1990 in the United States
of America. February 1999 saw the sinking of Panamanian-flagged, Japanese-managed wood chip carrier
New Carissa and 70,000 gallons of fuel spilled. In December, the same year, Erika sunk off the cost of
France highlighting yet again the importance of maintenance of vessels and the need of sound international
measures to check such incidents which could have been prevented provided due care. The sinking of
Prestige in 2002 off the Galician coast polluted beaches along the French and Spanish coast highlighting
yet again the question of liability in such accidents where multiple parties are involved. March 2009
witnessed the Southeast Queensland oil spill in Australia when unsecured cargo on the container vessel
the Pacific Adventure went down the sea during a cyclone.
Apart from vessel, offshore installations and gas pipelines are major contributors to oil pollution. When
an oil well is being drilled, mud is pumped down the well. These maintain a head of pressure and prevent
a “blow out’ when oil is struck. An offshore platform may suffer from a blow out, resulting in an
uncontrolled discharge of oil. Immense precautions are taken to prevent blow outs, nevertheless, accidents
happen occasionally, and great quantities of oil may be released into the sea before the blow out is brought
under control. Some of the notable spills caused by blow outs are Ekofisk 1977, Pemex Ixtoc I 1979,
Texaco 1980, Montara 2009 and the recent BP’s Deep Water Horizon. Niger delta is notorious for oil
spills which have become a common phenomenon. According to the UN Human Development Report,
around 6,817 oil spills occurred between 1976 and 2001.

III. International Conventions on Oil Pollution: Evolution across the Years

Water knows no boundaries and seas are beyond state desires of absolute sovereignty.
Marine pollution affects the environment which is a part of the collective commons. As Posner points out
that in our increasingly complex and interconnected world, problems emerge that cannot be solved by the
actions of one nation. Oil spill is one such problem area that exceeds the scope and capabilities of an
individual state to solve the problem in the absence of an effective international legal regime. Marine
based oil pollution is an international problem and can be categorized as “collective action problem”. In
1954, the first ever international convention about liability of the ship-owners for sea pollution came into
existence.

The establishment of IMCO in 1958 was a reinforcement of the pledge undertaken by the international
community to curb the problem of marine pollution.
Till date the international community has evolved a comprehensive legal regime to regulate the
transport of oil by sea. Environmental catastrophes like the Torrey Canyon, Exxon Valdez etc. have time
and again highlighted urgency of strengthening the international legal order and have helped in evolving
the legal regime in place for curbing the menace of oil spill. The international community has developed
a complex and bewildering range of rules to minimize oil pollution from ships. E.D. Brown adopts a
system of classification of the rules to distinguish them on the basis of- 1) provisions for the enforcement
of standards; 2) coastal states right of intervention; 3) coordinated international response to oil pollution
incidents; 4) civil liability regime. For this paper only the rules falling under the fourth category i.e., rules
establishing civil liability regime would be analysed.

However, before analysing the civil liability regime it would be reasonable to give a brief outline
of the international conventions which regulate marine based pollution of the sea by oil. OILPOL played
the central role for the period of 1954-71 which was superseded by the International Convention for the
Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978(MARPOL73/78). Both
OILPOL and MARPOL embody standards specifically relating to oil pollution caused by intentional
discharges from ships or accidental discharges which are avoidable by improving tanker design and
operating procedure. Prevention measures mainly focus on the technical requirements such as ship
structure standards and safety standards, which should be enforced by the contracting states. Both the
conventions try to ensure compliance with these standards by making provisions for survey and
certification of ships and enforcement by state parties. However the introduction of such standards can do
little to undo the damage caused by oil spills.

Once there is an oil spill, immediate measures must be taken to contain it, minimize the damage and
restore the natural environment as far as possible. And for that purpose, international arrangements have
a very important role to play. Realizing the importance of the international cooperation in matters relating
to exchange of information respecting the capabilities of States to respond to oil pollution incidents the
preparation of oil pollution contingency plans, the exchange of reports of incidents of significance which
may affect the marine environment or the coastline and related interests of States, and research and
development respecting means of combating oil pollution in the marine environment an International
Convention on Oil Pollution Preparedness, Response and Co-operation was entered into in 1990. The
preamble to the OPRC includes several provisions of relevance to general rules of international
environmental law noting the ‘importance of precautionary measures and prevention in avoiding oil
pollution in the first instance’ and taking ‘account of the polluter-pay principle as a general principle of
international environmental law.’ The convention commits parties to take all appropriate measures in
accordance with its provisions to prepare for and respond to an oil pollution incident. It is important to
note that OPRC’s provisions are applicable to ships, offshore units, sea ports and oil handling facilities.
Prior to OPRC, there were regional agreements on similar lines- the Bonn Agreement for Cooperation in
Dealing with Pollution of the North Sea by Oil and other Harmful Substances, 1983, the Copenhagen
Agreement between Norway, Denmark, Finland and Sweden Concerning Cooperation in taking measures
against pollution of the Sea by Oil, 1971.

Prevention and preparedness covered, now we come to the question of liability. Rules of liability
and compensation for damage to the marine environment establish an incentive to prevent harm and may
require restoration. UNCLOS requires the states to cooperate in the implementation of existing
international law and the further development of international law relating to responsibility and liability
for the assessment of and compensation for damage and the settlement of related disputes, as well as,
where appropriate, development of criteria and procedures for payment of adequate compensation, such
as compulsory insurance or compensation funds.
Oil Spills in India

India has a vast coastline which is susceptible to pollution by several marine perils especially by
maritime oil spill accidents which affect sea flora and fauna and the lives of people living in coastal areas
earning their bread and butter from the sea. In the wake of recent Mumbai oil spill, it is to be seen whether
Indian law is appropriate enough to meet the challenges of claims arisen by such an incident.
Oil spills are not uncommon on Indian coasts. Some of them go unnoticed in the media because
of lesser degree of damage caused to the environment. In 2010 itself, apart from the heavily publicized
MV Chitra, there was an oil spill incident reported near Gopalpur in Orissa when approximately eight
tons of oil escaped from vessel MV Malavika. In 2009, two maritime accidents rang alarm bells of possible
oil spills in Mangalore and Paradip.
However, because of swift action undertaken by the concerned agencies in mitigating the oil pollution
threats and quick clean-up action there were no environmental disasters of high magnitude. In November
2009, the Fourteenth National Oil Spill Disaster Contingency Plan (NOS-DCP) and Preparedness Meeting
stressed on the need to review preparedness and response capabilities, with a view to prepare all agencies
to respond to any contingency which may arise out at sea. Also, in the wake of mystery oil spill affecting
large tracts of Gujarat and Maharashtra coast, an urgent requirement of setting up a modern laboratory for
undertaking oil finger printing was expressed.
The spill in May 2010 highlighted the hazards of the offshore oil exploration and production and
posed an important question as to the preparedness of the state in case if an accident of the magnitude of
BP occurs in Indian waters. Are we prepared to tackle the menace which is a by-product of technological
advancement and development? The Fifteenth National Oil Spill Disaster Contingency Plan (NOS-DCP)
which was held in the shadow of BP disaster, deliberated upon establishing Tier-I facilities in major ports,
establishment of oil spill response organization for tackling large oil spills, preparation of contingency
plan by the coastal states for oil pollution, legislative efforts for NOSDCP, establishment of coastal bio-
shield, ocean monitoring through satellites, port reception facilities, utilization of oil cess fund, etc.
Before analysing the liability regime in place in India for oil pollution we shall first analyse the
regime in place for tackling with the menace of oil spill.

A. Response to Oil Spills

After the adoption of the OPRC convention by the IMO in 1990 with final Act and ten resolutions
and promulgation of the convention in 1995, India became one of the few countries that readily accepted
the convention. Immediately, India started working on its provisions for compliance, and promulgated its
national contingency plan on oil spill response. The Indian Coast Guard is the national authority under the
National Oil Spill Disaster Contingency Plan (NOSDCP) for coordination of response to oil spills in
Indian waters.
The maritime zones of India are divided into three regions: West, East, and Andaman & Nicobar.
These regions are further divided into 11 districts. The regional commanders are responsible for combating
oil spills in their respective areas of responsibility under the Regional Oil Spill Disaster Contingency Plans
(ROS-DCP). There are three-response centres - one in each region –with qualified response personnel and
well-stocked inventory of response equipment. Oil companies, ports, and oil platforms are to formulate
their own local contingency plans and should be able respond to oils spills within their designated areas.
The Coast Guard handles oil spills directly in the rest of the maritime zones. There are various resource
agencies under the NOS-DCP, with which the Coast Guard co-ordinate in case of oil spill.
The NOS-DCP prepared by India contains information regarding oil pollution reporting
procedures. It also contains actions to be taken by various parties on receipt of oil pollution reports.
Limited research in the field of oil spill management is carried out in India in national laboratories. The
Indian Coast Guard after the promulgation of the NOS-DCP, is conducting various training programs for
oil industry, ports, and other agencies on oil spill response free of cost. These training programs are on
the lines of the IMO pollution response training program level 1 and 2.
Regional Contingency Plan sponsored by the UNEP for regional and bilateral agreement for South Asia,
under the UN Clean Seas Program is under finalization. The countries that will be covered by bilateral
agreement are Bangladesh, India, Maldives, Pakistan, and Sri Lanka. This Plan envisages mutual cross
border assistance and movement of equipment and personnel to respond to oil spills in the seas across the
region.
B. Liability Regime
The sources of the law of liability for maritime accidents in India are: international custom, treaty
law based on international conventions, decisions of the Indian courts and those of foreign countries as
recognized by the Indian courts. Maritime activities are governed by a host of heterogeneous laws and the
law relating to liability for maritime accidents has been codified by the Merchant Shipping Act, 1958. The
basic structure visualized in this Act is like the statutes of many Commonwealth countries with certain
essential modifications to suit the Indian conditions.
The MSA applies to every Indian ship, wherever it is, and every foreign ship while it is at a port or place in
India or within the territorial waters of India or any marine areas adjacent thereto over which India has
exclusive jurisdiction regarding control of marine pollution. It does not apply to warships or ships owned or
operated by a state for non-commercial purposes. Section 334 prohibits an unworthy ship to be sent into
the sea thereby endangering life of any person and makes the master of the ship who knowingly takes
such a ship to sea liable unless he proves that such a voyage was reasonable and justifiable under the
circumstances. The issue to be examined here is- do these provisions make our coastline safer and
empower us towards dealing with the consequence arising out of marine oil pollution arising from
maritime accidents?
 i. Liability in Case of Pollution from Ships
Part X of the Act fixes liability in proportion to fault of parties in case of collision and maritime
accidents. In case, if consequent to an accident, the owner is made to pay damages exceeding the proportion
of his fault, then the owner may by way of contribution recover the amount of the excess from owners of other
ships. The inter play of section 286 and 352 I (2)
(b) of the Act is to be kept in mind while examining liability in incidents of oil spill by ships. The owner
may limit his liability in respect of any oil pollution damage arising from any
one or more incidents, as may be prescribed. The Supreme Court of India in World Tanker Corporation v
SNP Shipping Services Pvt. Ltd. pointed out that the whole purpose of limitation of liability is to protect
an owner against large claims far exceeding the value of the ship and cargo, which can be made against
him all over the world in case his ship meets an accident causing damage to cargo, to another vessel or
loss of personal life or personal injury.
Section 352 I (3), (4) and (6) insist on the mental element or knowledge for the purpose of fixing liability
which gives rise to complex issues in cases involving collision and consequent oil pollution, in view of
the strict liability regime under section 286. In addition to 352 I, 352 J which provides for the limitation
of liability of the owner by 352J (2) precludes the owner from limiting liability in case of negligence.
Any owner desiring to avail himself of the benefit of limitation of liability must make application
to the High Court for the constitution of a limitation fund. Such fund may be constituted either by
depositing the sum with the High Court or by furnishing a bank guarantee or such other security as, in the
opinion of the High Court is satisfactory. The fund is the beneficiary of any right of subrogation arising
from payments of damage, which any claimant has against any other person. The High Court consolidates
all claims against the fund including those claims which arise by reason of subrogation against other
interests.
All ships carrying 2,000 tons or more oil in bulk as cargo are required to supply a certificate
confirming liability insurance. Any certificate issued outside India by a competent authority is accepted
at any port or place in India. Without such certificate, the ship is not permitted to enter or leave any Indian
port or place in the territorial sea of India.
Section 352W provides that where any person suffering pollution damage has been unable to obtain full
and adequate compensation for damage under the terms of the Liability Convention on any grounds
specified in the Fund Convention, the Fund shall be liable for pollution damage in accordance with the
provisions of the Fund Convention. The Fund will pay out to any claimant who has suffered damage on
the grounds specified in Article 4 of the Fund Convention. The claims must be made within three years of
the date on which the claim first arose, and no later than six years from the date of the incident which
caused the damage. Any action for a claim against the Fund for compensation must be brought before the
High Court. The Fund has the right to intervene as a party in any legal proceedings instituted in the High
Court against the owner or his guarantor. On payment of compensation for damage, the Fund or Public
Authority of India acquires by the right of subrogation all the rights against the owner or his guarantor.
Section 356 K empowers the central government to take measures for preventing or containing oil
or noxious liquid substance pollution. Thus, in case of the august Mumbai oil spill, section 286 and 352(I),
(W) and (J) are to be kept in mind while fixing liability. One important point here is that section 352I of
the Act imposes strict liability on all ship owners, irrespective of their nationality or flag, in respect of
cases of oil pollution damage.
It is stressed again here that liability is attributed to the owner i.e. only the owner can be held liable
under the MSA. No other person, such as the master and crew, operator or salvor, can be held liable,
except where such person causes damage wilfully or recklessly. A wide range of personsare generally
exempted from liability. These exempted persons are of the kind who might be expected to be involved
with the vessel when an incident involving an oil spill, or any threat or danger arises. There is nothing in
the MSA to prevent a claim in negligence from being made against a third party other than those exempted
persons.

ii. Liability for Pollution from Tanks of Vessels

Tarring of beaches has almost become an annual event across the western coast of India. Tarring, as we
have seen in earlier part of this paper, is a consequence of operational discharge of bunker oil from ships
or tankers. Liability in such a case is covered under the International Convention on Civil Liability for
Bunker Oil Pollution Damage (BUNKER Convention), 2001. 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 a fuel in ships bunkers. It applies to damage caused on the territory, including the
territorial sea, and in Exclusive Economic Zones (EEZ) of state parties. The convention provides a free-
standing instrument covering pollution damage only.
The convention like the CLC requires the registered ship owners to maintain compulsory insurance
cover. The convention also provides for the requirement of direct action which allows a claim for
compensation for pollution damage to be brought directly against the insurer. However, India is not a
party to the convention. In absence of signing of the convention, it is only the general tortuous liability
and the polluter pays principle along with the MSA which can be invoked to fix liability. However, the
principle problem in such cases is not the fixing of liability but the tracking down of the culprit. What
happens is in practice is, vessels wash off their ballast tanks at night near the coast. It is the tracking of
the rogue vessel which is a headache for fixing liability.
As far as cleaning up is concerned, under MARPOL, to which India is a party, port trusts and the
director-general shipping have certain obligations, including taking measures to prevent oil spills, having
disaster management plans in place and keeping equipment for cleaning oil spills. The Indian Coast Guard,
under the NOSDCP is assigned the task of monitoring coastal pollution across the Indian coast.
 iii. Liability in Case of Pollution from Offshore Installations
It must be seen here that in case of any incident of grave magnitude like the BP Oil Spill, is the
existing Indian law adequate to deal with the situation. The thing that is worth noting here is that, it is the
part XI A of the Merchant Shipping Act which is applicable to off-shore installations. Proviso to section
356K provides in explicit terms that provisions of part XB shall not apply to measures taken in respect of any
offshore installation which is not a ship under the Act except that in the event of pollution damage caused by
any such offshore installation the person who is liable for the damage may claim exoneration from any liability,
if he proves that such damage –a)resulted from any act of war, hostilities, civil war, insurrection or a natural
phenomenon of an exceptional, inevitable and irresistible character; or b) was wholly caused by an act or
omission done with the intent to cause that damage by any other person; or c) 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 exercise of its functions in that behalf. Also, section 352 E(2)(d) specifically
provides that this part shall not be applicable to the floating platforms constructed for the purpose of exploring
or exploiting the natural resources of the sea bed or the subsoil thereof unless the central government notifies
otherwise.
Part XIA basically provides for the prevention and containment of pollution of the sea by Oil and sections 356
(J), (K), (L) and (M) contains provisions for the containment of accidental pollution whereas 356(O) empowers
the Central Government to make rules for carrying purpose of the Part. By virtue of section 356 (J) (1), the
central government on its satisfaction that oil or noxious liquid substance is escaping or likely to escape from
tanker or ship other than tanker or an offshore installation and is causing or threatening to cause pollution of
any parts of the coasts or coastal waters, may for the purpose of minimizing pollution or preventing the
pollution to be caused may require by notice either one of the concerned parties involved in the or all of them
to take such action in relation to the ship, tanker or installation as may be specified in the notice. Any such
notice may require the persons on whom it is served to –a) take action for preventing the escape of oil; b)
action for removal of oil or noxious liquid substances; c) action for removal of the tanker, ship other than the
tanker, mobile offshore installations or offshore installation; d) action for removal of oil slicks on the surface
of the sea; e) action to disperse the oil slicks on the sea surface[356(J)(2)]. In case of grave emergency or
threat of the same, the central government may proceed to take such measures as it may deem
necessary[356(J)(4)].
Section 356 K empowers the central government to take measures for preventing or containing oil
pollution in case the person(s) served notice failed to comply with the actions to be undertaken as specified
in the notice. Subject to part XB, any expenditure or liability, that has been incurred by the central
government by reason of noncompliance by persons notified under 356 K(1), shall be a debt due to the
central government by the person(s) on whom the notice was served and may be recovered from all or any
them and shall be charge upon all or any tanker, ship other than a tanker, mobile off shore installation or
offshore installation of any other type owned by that person(s) which may be detained by the central
government until the amount is paid. This essentially implies that the primary liability of preventing and
containing the oil spill is on the owner, agent, operator and not the state. State would ensure that all
necessary steps are being taken to contain or prevent the spill by the specified persons and in case they
don’t, government would step in to their shoes for preventing or containing for which it can reimburse the
costs later on from the parties that were primarily responsible for preventing and containing the spill.

VI. Conclusion and Suggestions

Oil spill has devastating effects on marine flora and fauna. A spill of a dramatic magnitude, as
Exxon Valdez or the recent BP oil spill, can possibly deaden the marine environment affecting the lives of
the people in more than expected ways. In an incident like BP there is danger of loss of life, there is of
course damage to marine flora and fauna, fisheries are destroyed robbing those dependent on them for
their livelihood; there is loss of business and working days as water is rendered un-navigable causing
diversion of sea routes and tourism industry is essentially affected. All this can lead to depression both
mental as well as economic to persons who are dependent upon sea as the source of their livelihood.

Because of the nature of marine pollution as being such that international cooperation becomes imperative
for the purpose of containing it, an international regime comprising of various conventions was developed.
Since Torrey Canyon to BP every single incident of oil spill has highlighted the importance of an effective
international regime to help contain the disastrous effects of oil spill, preparing the states in advance with
national contingency plans in case of an accident and last but not the least fixing the liability and
channelling the same. Time and again, there have been criticism against the limitation of liability
especially in case spectacular oil spills. It is not suggested here that the international compensation regime
established by the Civil Liability and Fund Conventions is in perfect. However, it would be fair to say that
this regime has functioned reasonably well in most cases over the years, and it is one of the most successful
compensation schemes in existence.
The history of oil pollution liability has, however, shown that the conventions have been quite
reactive and with every incident of graver implication have successfully amended themselves to raise them
to match up to the requirements of greater oil spills. It is particularly important that the great majority of
all compensation claims have been settled amicably because of negotiations. The international regime is
a good example of an international solution to a global problem, facilitating international cooperation
regarding compensation for damage caused by tanker oil spills and environmental protection.
There have been efforts on the part of the international arena to strengthen the liability regime;
however, sadly, not much is done in evaluating the costs of harm dome done to the ecological environment.
It is to be kept in mind that every oil spill is a unique case and there is no means of calculating an average
cost of oil spill as cost of damage by every spill would depend on multiple factors. Delimiting the liability
might sound attractive to ears but practically the strict liability principle the way it is being in force in the
international arena is working sufficiently the only drawback being the non-consideration of ecological
damage while evaluating damages.
 Keeping in view the long-term effects on the ecological environment and people dependent on the
same, international legal rules concerning the marine based oil pollution must therefore be able to consider
not only the extent of the damage caused, but also the cause of the damage. This means that not only
traditional damage to property and personal injury, but also damage to the environment per se should be
considered.
India owing to is vast coastline is vulnerable to oil spills and a spill of the magnitude of
Exxon Valdez or BP would be devastating for the economy. It wouldn’t only affect the people
living on coastal areas but the whole of economy as we are basically dependent on sea for carriage of
goods. In a spill scenario, along with the export industry, tourism industry and fishing industry would also
suffer immense losses. The big question that remains to be answered is that are we prepared for the worst
case scenario or are we waiting for a disaster to occur so that we can work on how it could have been
avoided?
India follows the civil liability principle for oil pollution damage. The Merchant Shipping Act by
virtue of Part XB and XC incorporates the provisions of CLC and Fund Convention holding the owner
liable for oil pollution damage and limiting the liability for the same while constituting the limitation fund.
It is to be seen here that does the Merchant Shipping Act translates the spirit of International conventions
in itself or is it deficient in its application when dealing with incidents of oil pollution.
The first major lacunae that can be said to be present in the Merchant Shipping Act is the non-
mentioning of the liability caps. Section 352 merely says that “the owner shall be entitled to limit his
liability under this Part, in respect of any one or more incident, as may be prescribed.”
Unlike the CLC which by virtue of article V provides for the formula for calculating limitation of liability.
The provisions for compulsory insurance, financial guarantee and rights of compensation by subrogation
have been imbibed from CLC reasonably well into the MSA. But the thing that has to be taken into
consideration here is that if doing this much is sufficient enough for the purpose of securing our coast.
As far as liability of owner is concerned both CLC and MSA hold the owner liable for
“any pollution damage caused by oil which has escaped or been discharged from the ship as a result of
the incident.”136 This provision can be interpreted to include immediate damage caused to marine flora
and fauna but cannot be stretched to include in its ambit the damage caused to the natural resources. Nor
claims could be made by people dependent on the coast for compensation for loss of business. There is no
criminal liability regime for punishing the liable party for oil pollution under the scheme of MSA.
However, oil pollution can be said to be causing public nuisance and so under the Indian Penal Code, a
person can be held guilty for causing public nuisance. Section 268 of the IPC would give any affected
person standing in case of “injury, obstruction, danger or annoyance” caused to any “persons who may
have occasion to use any public right.” Section 278 holds the person responsible for vitiating the
atmosphere to “make it noxious to the health of persons in general dwelling or carrying on business in the
neighborhood or passing along a public way”. However the problem in applying the provision in case of
oil pollution is the penalty that is prescribed which is a trivial sum up to 500 Rupees.
Another problem with the statutory regime dealing with oil pollution in India is that it doesn’t
differentiate between the accidental and operational discharge of oil in the sea and in the absence of
accession to the Bunker convention, incidents like Goa tarring of beaches would be covered under the
merchant shipping act only. It is high time that India signs the Bunker convention.
Both MSA as well as CLC makes the liability of the owner join and several however it does not
include in its ambit persons that might be involved in the accident closely like the charterer, the crew and
the master of the ship and as well as the port authorities who are responsible for coordinating signals. In
order to prevent accidents at sea the liability regime of the country needs to be strengthened by imposing
criminal liability on the owner as well allied persons who are closely associated with the spill. This can
be done either by enacting a special law with stricter penalties on the lines of the Civil Nuclear Liability
Bill, 2010 or by adding a separate part to the current MSA imposing heavy fines for negligence and non-
proper maintenance of ships and offshore installations.
The coastguard is responsible for the protection of the coastal environment and much would
depend on their competence as to how they respond to any devastating emergency. For that it should be
made sure that they are properly trained and are well equipped to handle situations like BP. Presently, the
coastguards are deliberating to establish a Teir-1 system and exhaustive oil spill response mechanism. The
efforts of coastguard should be prioritized by a statutory backing and proper funding.
Protection of seas by oil pollution is of immense importance and all measures should be taken to
prevent and protect our coastlines. We should be guarded beforehand that a tragedy like
Exxon Valdez or BP does not occur in our waters and God forbid even if it does, we should be well
prepared in advance to tackle it. India is today a leader among the nations of the world. It occupies a
commanding position in the Indian Ocean. It must provide the lead to other Asian and African countries
by providing tougher laws in the matter of protection of the environment. Specially, in matters of
dangers resulting from oil spills, the developing countries will stand to lose very heavily. To overcome
this, the policy of “prevention is always better than cure” has to be followed. For prevention of an
environment catastrophe there is an urgent need of new laws

backed by international agreements as has been suggested above.

living on coastal areas but the whole of economy as we are basically dependent on sea for carriage
of goods. In a spill scenario, along with the export industry, tourism industry and fishing industry
would also suffer immense losses. The big question that remains to be answered is that are we
prepared for the worst-case scenario or are we waiting for a disaster to occur so that we can work
on how it could have been avoided?
India follows the civil liability principle for oil pollution damage. The Merchant Shipping
Act by Part XB and XC incorporates the provisions of CLC and Fund Convention holding the
owner liable for oil pollution damage and limiting the liability for the same while constituting the
limitation fund. It is to be seen here that does the Merchant Shipping Act translates the spirit of
International conventions in itself or is it deficient in its application when dealing with incidents
of oil pollution.
The first major lacunae that can be said to be present in the Merchant Shipping Act is the
non-mentioning of the liability caps. Section 352 merely says that “the owner shall be entitled to
limit his liability under this Part, in respect of any one or more incident, as may be prescribed.”
Unlike the CLC which by article V provides for the formula for calculating limitation of liability.
The provisions for compulsory insurance, financial guarantee and rights of compensation by
subrogation have been imbibed from CLC reasonably well into the MSA. But the thing that has to
be taken into consideration here is that if doing this much is sufficient enough for the purpose of
securing our coast.
As far as liability of owner is concerned both CLC and MSA hold the owner liable for
“any pollution damage caused by oil which has escaped or been discharged from the ship as a
result of the incident.”136 This provision can be interpreted to include immediate damage caused
to marine flora and fauna but cannot be stretched to include in its ambit the damage caused to the
natural resources. Nor claims could be made by people dependent on the coast for compensation
for loss of business. There is no criminal liability regime for punishing the liable party for oil
pollution under the scheme of MSA. However, oil pollution can be said to be causing public
nuisance and so under the Indian Penal Code, a person can be held guilty for causing public
nuisance. Section 268 of the IPC would give any affected person standing in case of “injury,
obstruction, danger or annoyance” caused to any “persons who may have occasion to use any
public right.” Section 278 holds the person responsible for vitiating the atmosphere to “make it
noxious to the health of persons in general dwelling or carrying on business in the neighbourhood
or passing along a public way”. However, the problem in applying the provision in case of oil
pollution is the penalty that is prescribed which is a trivial sum up to 500 Rupees.
Another problem with the statutory regime dealing with oil pollution in India is that it
doesn’t differentiate between the accidental and operational discharge of oil in the sea and in the
absence of accession to the Bunker convention, incidents like Goa tarring of beaches would be
covered under the merchant shipping act only. It is high time that India signs the Bunker
convention.
Both MSA as well as CLC makes the liability of the owner join and several however it
does not include in its ambit persons that might be involved in the accident closely like the
charterer, the crew and the master of the ship and as well as the port authorities who are responsible
for coordinating signals. In order to prevent accidents at sea the liability regime of the country
needs to be strengthened by imposing criminal liability on the owner as well allied persons who
are closely associated with the spill. This can be done either by enacting a special law with stricter
penalties on the lines of the Civil Nuclear Liability Bill, 2010 or by adding a separate part to the
current MSA imposing heavy fines for negligence and non-proper maintenance of ships and
offshore installations.
The coastguard is responsible for the protection of the coastal environment and much
would depend on their competence as to how they respond to any devastating emergency. For that
it should be made sure that they are properly trained and are well equipped to handle situations
like BP. Presently, the coastguards are deliberating to establish a Teir-1 system and exhaustive oil
spill response mechanism. The efforts of coastguard should be prioritized by a statutory backing
and proper funding.
Protection of seas by oil pollution is of immense importance and all measures should be
taken to prevent and protect our coastlines. We should be guarded beforehand that a tragedy like
Exxon Valdez or BP does not occur in our waters and God forbid even if it does, we should be
well prepared in advance to tackle it. India is today a leader among the nations of the world. It
occupies a commanding position in the Indian Ocean. It must provide the lead to other Asian and
African countries by providing tougher laws in the matter of protection of the environment.
Specially, in matters of dangers resulting from oil spills, the developing countries will stand to
lose very heavily. To overcome this, the policy of “prevention is always better than cure” has to
be followed. For prevention of an environment catastrophe there is an urgent need of new laws
backed by international agreements as has been suggested above.