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R. Renu Karthick v/s The Inspector General of Coast Guard, The Indian Coast Guard & Others

    W.P.No. 30676 of 2018 & W.M.P.No. 35778 of 2018

    Decided On, 20 November 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S. MANIKUMAR & THE HONOURABLE MR. JUSTICE SUBRAMONIUM PRASAD

    For the Appearing Parties: S.V. Vijayaprashanth, AGP (Forest), N. Nandakumar, M. Aravind Kumar, Krishna Ravindran, Abdul Saleem, Advocates, No Appearance.



Judgment Text

S. Manikumar, J.

(Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a writ of Mandamus, directing the respondents 1 to 4 take action against the 5th respondent vessel and to take steps for initiating the prosecution and to recover costs and compensation.)

1. On the basis of the newspaper item reported on 19.11.2018 in the Indian Express, stating that there is oil spill at Marine Liquid Terminal-1, at Kamarajar Port, Chennai, consequent to which, there is environmental pollution, loss of marine lives, fishermen unable to venture out for fishing, no action has been taken, as per the National Oil Spill Disaster Contingency Plan (NOS-DCP), against the fifth respondent, described to be the Owners and Parties interested in vessel MT Coral Stars, Kamarajar Port, Chennai, claiming himself to be a public interest litigant, and arraying respondent Nos.1 to 5, the petitioner has filed the instant writ petition, for a Mandamus, directing the respondents 1 to 4, to take action against the 5th respondent, to take steps for initiating prosecution and to recover costs and compensation.

2. Added further Mr.N.Nandakukar, learned counsel for the petitioner, submitted that the police has not registered any case and an e-mail dated 19.11.2018, has been sent by the petitioner to the respondents 1 and 2.

3. According to him, as per Sections 14 and 15 of the Merchants Shipping Act, 1958, Coast Guard, has a duty to register a compliant, within the jurisdictional police and proceed further, when there is a violation of the provisions of the Pollution Control Act and environmental pollution, due to the spillage of oil.

4. When the matter came up in the forenoon, the petitioner sought for an urgent order for detaining vessel MT Coral Stars, owned by fifth respondent, and take action under the provisions of Merchant

5. In the forenoon, when the matter came up for admission, on instructions, Mr.Abdul Saleem, learned counsel for the Pollution Control Board/fourth respondent herein, submitted that on receipt of information from Coast Guard, Chennai/first respondent herein, and having regard to extent of spillage reported, Tamil Nadu Pollution Control Board, Chennai/respondent No.4 taken action.

6. Mr.S.V.Vijayprashanth, learned counsel for the Inspector General of Coast Guard, Indian Coast Guard, Chennai/respondent No.1, submitted that action has also been taken by the Coast Guard under the provisions of the Merchant Shipping Act, 1958. Thus, when oral submissions were made in the forenoon, we directed the learned counsel, to substantiate the same.

7. When the matter was taken up in the afternoon, Mr.S.V.Vijayprashanth, learned counsel for appearing Inspector General of Coast Guard, I

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ndian Coast Guard, Chennai/first respondent, submitted that notice under Section 356(j) of the Merchant Shipping Act, 1958, has been issued to the fifth respondent. He further submitted that Government of India, Ministry of Shipping, Directorate General of Shipping, Mumbai, has also taken action, under Section 356 (K)(2) of the Merchant Shipping Act, 1958, and issued notice to Owners and Parties interested in vessel MT Coral Stars/fifth respondent herein.

8. Mr.Krishna Ravindran, learned counsel appearing for Chairman, Kamarajar Port Trust, Chennai/third respondent herein, submitted that even before the writ petition was filed, action has been taken on 18.11.2018 itself, on the intimation from the Inspector General of Coast Guard, Indian Coast Guard, Chennai/first respondent herein and thus, there is no fault on the part of the first respondent in reporting and taking action.

9. Submission of the learned counsel for respondent Nos. 1, 3 and 4 respectively are placed on record.

10. Heard the learned counsel for the parties.

11. Instant writ petition, has been filed on 19.11.2018 by Mr.R.Renu Karthick, claiming himself to be a public interest litigant, for the prayers stated supra.

12. From the notice issued under Section 356(J) of the Merchant Shipping Act, 1958, it could be seen that no sooner there was a oil spill alongside MLT berth, Ennore, due to rupture of hose while discharging at 05.35 Hrs on 18 Nov, 2018 within Ennore port limits, which resulted in Oil spillage which threatened the coastal area, on 18.11.2018 itself, Coast Guard, has reported the same to the Chief Secretary to the Government of Tamil Nadu, Director General of Shipping, Mumbai, Marine Rescue Co-ordination Centre, Chennai, Chairman, Kamarajar Port, Ennore and Principal Secretary & Chairman, State Pollution Control Board, by Fax massages.

13. E-mail has also been sent to the Master, MT Coral Stars, about the coast oil spillage.

14. Section 358 of the Merchant Shipping Act, 1958, reads thus:-

"358. Shipping casualties and report thereof.— (1). For the purpose of investigations and inquiries under this Part, a shipping casualty shall be deemed to occur when —

(a) on or near the coasts of India, any ship is lost, abandoned, stranded or materially damaged;

(b) on or near the coasts of India, any ship causes loss or material damage to any other ship;

(c) any loss of life ensues by reason of any casualty happening to or on board any ship on or near the coasts of India;

(d) in any place, any such loss, abandonment, stranding, material damage or casualty as above mentioned occurs to or on board any Indian ship, and any competent witness thereof is found in India;

(e) any Indian ship is lost or is supposed to have been lost and any evidence is obtainable in India as to the circumstances under which she proceeded to sea or was last heard of.

(2) In the cases mentioned in clauses (a), (b) and (c) of sub-section (1), the master, pilot, harbour master or other person in charge of the ship, or (where twoships are concerned) in charge of each ship at the time of the shipping casualty, and in the cases mentioned in clause (d) of sub-section (1), where the master of the ship concerned or (except in the case of a loss) where the ship concerned proceeds to any place in India from the place where the shipping casualty has occurred, the master of the ship, shall, on arriving in India, give immediate notice of the shipping casualty to the officer appointed in this behalf by the Central Government."

15. Notice under Section 356(J) of the Merchant Shipping Act, 1958, dated 18.11.2018, issued by Commandant, Regional Fisheries and Environment Officer for Commander, Coast Guard Region (East), to M/s Atlantic Shipping Private Limited, Chennai and the Master, MT Coral Stars, is extracted hereunder:-

"NOTICE UNDER SECTION 356(J) OF MERCHANT SHIPPING ACT

1. Whereas it has come to the notice of Indian Coast Guard that the MT Coral Stars (IMO: 9286061, Flag: Marshall Islands) chartered by M/s Atlantic Shipping Pvt Ltd, Chennai has caused oil spill alongside MLT berth, Ennore reportedly due to rupture of hose whilst discharging at 0535 h on 18 Nov 18 within Ennore port limits resulted in Oil spillage which threatens the coastal area.

2. Further, initial assessment revealed that the port had taken few measures to contain the oil spill however, the ship and her agents have not yet taken suitable measures to remove the spill of approx. 01 Ton of FFO.

3. With the powers conferred upon to the Officers of the Indian Coast Guard under section 356(J) of the part XIA of Indian Merchant Shipping Act 1958, this notice for cleanup is hereby served to the owner/charterer/authorized agent for cleanup of spilled oil and for undertaking following actions:-

(a) Undertake containment and recovery of Oil spilled.

(b) Take all other necessary action to keep the environment clean as it was prevailing before the incident.

(c) Take necessary action to prevent further spillage of oil into the sea including removal of oil from the damaged tanks by transfer.

3. The Oil spill likely to drift towards coast which is likely to affect the coast line. Hence, you are advised to undertake above remedial action either through local agent or other agencies. Non compliance of the same will entail this Headquarters to take action under Section 356(K) of the XIA of Indian Merchant Shipping Act 1958.

4. The action taken report be intimated to Ennore Port under intimation to this Headquarters."

16. Government of India, Ministry of Shipping, Directorate General of Shipping, Mumbai, has taken action under Section 356(k)(2) of the Merchant Shipping Act, 1958 and Nautical Surveyor-cum-Deputy Director General (Tech), Mumbai, and issued notice in F.No.- 2NT(8)OPM/2018, dated 18.11.2018, to Master/owner/charterer/authoirzed agent/P71 insurer/local correspondent for P&1 insurer/and all other persons interested in the vessel MT Coral Stars and Bharat Petroleum Corporation Limited. For brevity the same is extracted hereunder:- "NOTICE

Sub: - Oil spill incident on 18.11.2018 from the vessel MT Coral Stars (IMO: 9286061. Flag: Marshall Islands) - notice under section 356(K)(2) of the Merchant Shipping Act, 1958 - reg.

Whereas, the Indian Coast Guard (ICG) issued notice under section 356(J) of the Merchant Shipping Act, 1958, vide fax [f.no.7585] dated 18.11.2018, to the Master / owner / charter / agent of vessal MT Coral Stars (IMO: 9286061], Flag: Marshall Islands), for cleanup of spilled oil, to undertake containment and recovery of oil spilled and other necessary action to keep the environment clean, as it was prevailing before the incident and to prevent further spillage of oil into the sea including removal of oil from the shore due to the pollution damage caused due to the oil spill incident from vessel 'MT Coral Stars' (IMO: 9286061).

2. And whereas, even though notice under 356(J) of the Merchant Shipping Act, 1958, was issued vide fax [f.no.7585] dated 18.11.2018, it was noticed that the oil escaped into the port waters, requiring urgent action to be taken by the authorities/agencies to deal with the pollution damage.

3. Now, therefore, as provided under the provision of subsection (2) of section 356(K) of the Merchant Shipping Act, 1958, all expenses and liabilities incurred for dealing with the said pollution incident shall be debt to the Central Government by the said vessel 'MT Coral Stars' (IMO: 9286061), its Master, owner, charterer, agent and all other persons interested in the vessel and all persons interested in the cargo, which is required to be paid at the earliest.

4. The Master, owner, charterer, agent and all other persons interested in the vessel and all persons interested in the cargo shall continue to take all necessary measures to prevent and mitigate the pollution damage caused due to the incident and restore the environment to its original condition.

Yours faithfully,

(Capt. Anish Joseph) Nautical Surveyor-cum- Dy. Director General (Tech)"

17. On the information from Coast Guard dated 18.11.2018, Pollution Control Board, Chennai, has acted swiftly and in exercise of the powers conferred under Section 32 of Water (P&CP) Act, 1974 as amended in 1988, Tamil Nadu Pollution Control Board has issued directions under Section 33(A) of Water (P&CP) Act, 1974, for detaining of the vessel MT Coral Stars.

18. Section 33A of Water (P&CP) Act, 1974, reads thus:-

"33A. Power to give directions.—Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions. Explanation.—For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct - (a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other service."

19. Proceedings of the Tamilnadu Pollution Control Board, Chennai, dated 19.11.2018, directing detention of the vessel and further directions, is reproduced hereunder:- "TAMIL NADU POLLUTION CONTROL BOARD Proceedings No.: T5 /TNPCB / CHN / F.030569 / GMP / Oil spill / 2018, dated: 19.11.2018

Sub.: TNPCB - Spillage of furnace oil consigned to M/s. Bharat Petroleum Corporation Limited into harbour waters inside M/s. Kamarajar Port at the Jetty of M/s. Ennore Tank Terminal Pvt Limited during discharge of furnace oil by ship M/s. Coral Stars, Ennore on 18.11.2018 - Directions issued under Provisions of Section 32 and 33 A of Water (Prevention and Control of Pollution) Act, 1974 - Regarding.

Ref.: 1. Water (Prevention & Control of Pollution) Act, 1974 as amended.

2. The Hazardous and Other Wastes (Management & Transboundary) Rules, 2016

3. Letter No. DEE / TNPCB / GMP / ETTPL / oil spill - 2 / dated: 18.11.2018 ------

Whereas, the Water (Prevention and Control of Pollution) Act, 1974 as amended in 1988 is in force in Tamil Nadu. Tamil Nadu Pollution Control Board enforces the above Act.

Whereas, Tamil Nadu Pollution Control Board has been informed vide reference 3rd cited that out of the total quantity of 16000 KL of furnace oil consigned to M/s. Bharat Petroleum Corporation Limited there was a spillage of 1.5 Tons of furnace oil during pipe line transfer into the harbour waters inside M/s. Kamarajar Port at the Jetty of M/s. Ennore Tank Terminal Pvt Limited when the consignment was pumped and unloaded from the ship M/s. Coral Stars, Ennore on 18.11.2018 at 04:30 hrs.

Whereas the cause of the spill is attributed to a shear at ferrule joint in 8” unloading hose pipe which connects the vessel (ship) and the unloading pipeline leading to ETTPL (Ennore Tank Terminal Pvt Ltd). Due to sudden failure in the hose pipe, around 1.5 tons of furnace oil has spilled in the sea water between the jetty and vessel (ship). As soon as the failure occurred in the hose pipe, unloading of furnace oil operation was reported to be stopped immediately.

The spillover of furnace oil is, reported to have been contained within 50 meters, since the boom has already been provided for containment of oil spill over, if any, before starting the unloading operation. It is reported that the spilled oil of 95% have been removed by engaging various instruments like oil skimmers, absorption pads etc. The spilled furnace oil (around 1.5 ton), collected from the sea has been kept in the jetty along with absorption pads. The spilled oil has been recovered by the port authorities using boom, oil skimmers and absorption pads. Saw dust has been poured over the floor of the jetty for an area of about 10 square meters, to remove the oil spillage in the jetty platform. The oil traces has been further removed by the port authorities using oil spill dispersants.

Whereas the damage caused to marine environment due to spillage of furnace oil has to be assessed and the liability is required to be fixed to all the agencies who were involved in the said operations resulting in spillage of furnace oil in to the marine waters.

Whereas, as per Section 24 of Water (Prevention And Control of Pollution) Act, 1974, no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any stream or well or sewer or on land.

Whereas, Section 32 of the said Act reads as follows “Emergency measures in case of pollution of stream or well (1) Where it appears to the State Board that any poisonous, noxious or polluting matter is present in [any stream or well or on land] by reason of the discharge of such matter in such stream or well or on such land] or has entered into that stream or well due to any accident or other unforeseen act or event, and if the Board is of opinion that it is necessary or expedient to take immediate action, it may for reasons to be recorded in writing, carry out such operations, as it may consider necessary for all or any of the following purposes, that is to say- (a) removing that matter from the [stream or well or on land] and disposing it of in such manner as the Board considers appropriate; (b) remedying or mitigating any pollution caused by its presence in the stream or well; (c) issuing orders immediately restraining or prohibiting the person concerned from discharging any poisonous, noxious or polluting matter 27[into the stream or well or on land] or from making insanitary use of the stream or well".

Whereas, Rule 2 - 39 of the Hazardous & Other Wastes (Management & Transboundary Movement) Rules, 2016 defines waste oil as, "waste oil means any oil which includes spills of crude oil, emulsions, tank bottom sludge and slop oil generated from petroleum refineries, installations or ships and can be used as fuel in furnaces for energy recovery, if it meets the specifications laid down in Part-B of Schedule V either as such or after reprocessing.

Whereas, Rule 23(1)&(2) of the Hazardous & Other Wastes (Management & Transboundary Movement) Rules, 2016 reads as follows,

“Liability of occupier, importer or exporter and operator of a disposal facility 23 - (1) The occupier, importer or exporter and operator of the disposal facility shall be liable for all damages caused to the environment or third party due to improper handling and management of the hazardous and other wastes

23 - (2) The occupier and the operator of the disposal facility shall be liable to pay financial penalties as levied for any violation of the provisions under these rules by the State Pollution Control Board with the prior approval of the Central Pollution Control Board”.

Now therefore in exercise of the powers conferred under Section 32 of the Water (P&CP) Act, 1974 as amended in 1988, Tamil Nadu Pollution Control Board issues the following directions to you under Section 33A of Water (P&CP) Act 1974 as amended, as you are one of the agencies involved in the said operation which resulted in spillage of furnace oil into the marine waters:

1. The ship M/s. Coral Star shall be detained till the liability is fixed and necessary compensation for the expenses incurred / to be incurred towards remediation of the marine environment affected due to the said spillage of furnace oil needs to be assessed and deposited as per the Polluter pays Principle”.

2. To take all necessary action for complete remedy of the negative environmental impact of this spill immediately.

3. The remnants of the oil spill collected from the harbour waters and the contaminated saw dust used for absorption to clean and remove the oil spilled in the jetty platform shall be stored in compatible containers in designated storage yards with requisite safety precautions till it is safely disposed as per the provisions of Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016.

The status of action taken in complying with the directions shall be intimated to this office within a week’s time."

20. Chapter III of the Indian Coast Guard Act, 1978, is extracted hereunder:-

"Chapter III

DUTIES AND FUNCTIONS OF THE COAST GUARD

14. (1) It shall be the duty of the Coast Guard to protect by such measures, as it thinks fit, the maritime and other national interests of India in the maritime zones of India,

(2) -Without prejudice to the generality of the provisions of subsection (1), the measures referred to therein may provide for –

(a) ensuring the safety and protection of artificial islands, offshore terminals, installations and other structures and devices in any maritime zone;

(b) providing protection to fishermen including assistance to them at sea while in distress;

(c) taking sueh measures as are necessary to preserve and protect the maritime environment and to prevent and control marine pollution;

(d) assisting the customs and other authorities in anti-smuggling operations; (e) enforcing the provisions of such enactments as are for the time being in farce in the maritime zones; and

(f) such other matters, including measures for the safety of life and property at sea and collection of scientific data, as may be prescribed.

(3) The Coast Guard shall perform its functions under this section in accordance with, and subject to such rules as may be prescribed and such rules may, in particular, make provisions for ensuring that the Coast Guard functions in close liaison with Union agencies, institutions and authorities so as to avoid duplication of effort."

21. Inter alia the contentions made by Mr.N.Nandakumar, learned counsel for the petitioner, is that Coast Guard has a duty to register a complaint and take action. Thus there is a failure, for which, he sought for a direction against the respondents 1 to 4, for initiating the prosecution and to recover costs and compensation.

22. Chapter IV and V of the Indian Coast Guard Act, 1978, deals with offences and punishments respectively, and the same are extracted hereunder:- "CHAPTER.IV OFFENCES

15. Any person subject to this Act. who,-

(a) treacherously holds correspondence with, or communicates intelligence to, an offender; or

(b) wilfully fails to make known to the proper authorities any information he may have received from an offender; or

(c) having been captured by an offender, voluntarily serves with or aids him,

shall, on conviction by a Coast Guard Court, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned.

Explanatian.-

For the purposes of this section, "offender" includes-

(a) all armed mutineers, armed rebels, armed rioters, pirates and any person in arms against whom it is the duty of any person subject to this Act to take action; and

(b) any person or persons engaged in smuggling, unlawful exploration or exploitation or any other unlawful activity in the maritime zones of India.

CHAPTER V

PUNISHMENTS

53. (1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Coast Guard Courts according to the scale following, that is to say,-

(a) death;

(b) imprisonment which may be for the term of life or any other lesser term;

(c) dismissal from the Coast Guard;

(d) detention in Coast Guard custody for a period not exceeding two years;

(e) reduction to the ranks or to a lower rank in the case of sailors; (f) forfeiture of seniority of rank, forfeiture of all or any part of the service for the purpose of promotion;

(g) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;

(h) fine, in respect of civil offences;

(i) mulcts of pay and allowances;

(j) severe reprimand or reprimand except in the case of persons below the rank of an Uttam Navik or Uttam Yantrik.

(2) Each of the punishments specified in subsection (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale.

54. Subject to the provisions of this Act, a Coast Guard Court may, on convicting a person subject to this Act of any of the offences specified in sections 15 to 48 (both inclusive) award either the particular punishment with which the offence is stated In the said sections to be punishable, or in lieu thereof, anyone of the punishments lower in the scale set out in section 53 regard being had to the nature and degree of the offence.

55. Subject to the provisions of section 58, a sentence of a Coast Guard Court may award in addition to, or without anyone other punishment, the punishment specified in clause (c) of sub-section (1) of section 53 and anyone or more of the punishments specified in clauses (e) to (j) (both inclusive) of that sub-section.

56. Punishments may also be inflicted in respect of offences committed by persons subject to this Act without the intervention of a Coast Guard Court in the manner stated in section 57.

57. Subject to the provisions or section 58, a Commanding Officer or such other officer as is, with the consent of the Central Government, specified by the Director-General may, in the prescribed manner, proceed against a person subject to this Act, otherwise than as an officer, who is charged with an offence under this Act and award such person, to the extent prescribed, one or more of the following punishments, that is to say,-

(a) imprisonment for a period not exceeding three months;

(b) dismissal from the Coast Guard;

(c) detention in Coast Guard custody for a period not exceeding three months;

(d) reduction to the ranks or to a lower rank in the case of sailors;

(e) fine, in respect of civil offences;

(f) mulcts of pay and allowances;

(g) deprivation of good conduct badges;

(h) reprimand;

(i) extra work and drill for a period not exceeding fourteen days in the case of persons below the rank of an Uttam Navik or Uttam Yantrik:

(j) stoppage of leave for a period not exceeding sixty days;

(k) admonition; Provided that no punishment specified in clauses (a) to (d) (both inclusive) shall be inflicted,-

(a) in the case of a subordinate officer, unless it is approved by an officer not below the rank of an Inspector-General; and

(b) in the case of others, unless it is approved by an officer not below the rank of a Deputy Inspector-General.

58. (1) The punishments that may be inflicted under this Act shall be awarded in accordance with the provisions of this section.

(2) A sentence of imprisonment under this Act shall in all cases be accompanied by a sentence of dismissal.

(3) A sentence of imprisonment may be rigorous or simple or partly rigorous and partly simple.

(4) No officer shall be subject to detention for any offence under this Act.

(5) No subordinate officer shall be sentenced to detention except for desertion.

(6) A sentence of detention shall not be accompanied by a sentence of dismissal from the Coast Guard.

(7) A sentence of detention for a period exceeding fourteen days shall in all cases be accompanied by stoppage of pay and allowances during the period of detention."

23. Reading of the provisions, does not make it obligatory on the part of the Coast Guard to register any jurisdictional police. In the light of the statutory provisions, contention of the learned counsel for the petitioner, cannot be countenanced.

24. Inspector General of Coast Guard, Indian Coast Guard, Chennai; Chairman, Kamarajar Port Trust, Chennai and Pollution Control Board, Chennai, respondents 1, 3 and 4 respectively, have discharged their duties immediately and taken appropriate action. Relief sought for by the petitioner has been addressed by the respondents, and hence no further direction is required in the instant writ petition.

25. Mr.Abdul Saleem, learned counsel for the Pollution Control Board, Chennai/third respondent, submitted that 90% of cleaning of oil spillage, has already been over and removal of the remaining oil spillage, would be completed within two days.

26. In view of the above, writ petition is dismissed. No Costs. Consequently, the connected writ miscellaneous petition is closed.

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