Merchant Shipping Bill 2013: Legislative Comment

Aastha Mehta, GNLU, Gandhinagar

India has always been known historically for the trade that it had with almost all the corners of the world which, meant that sea-trade, and merchant ships have not been a gift of the new scientific era in our country, but it has been part and parcel of our lives since many centuries. However with increase in the trade relations, modern equipments, more bigger and better ships have come up, which has had a caused an adverse effect on the sea environment, and marine life all throughout the world has been polluted, endangering many species under the water.

The present bill was introduced in Rajya Sabha in 2013, and has been passed by the Lok Sabha this month. The legislative enactment as it now stands, is going to be inserted after Part XI-A in the Merchant Shipping Act 1958, and is passed in the lines of International Convention for the Control of Harmful Anti-Fouling Systems on Ships, 2001, which is an initiative of International Marine Organization and India being a member of IMO, has enacted this domestic piece of legislation in view of the aspirations that have been sought by the countries. It aims at reducing the effects of the adverse anti-fouling systems paints which are applied on bottom of the ships, and these paints over the time, get dissolved in water and are proven to be dangerous for marine life. The bill defines the “anti fouling system” as a coating, paint, surface treatment, surface, or device that is used on a ship to control or prevent attachment of unwanted organisms. While enumerating on the history of these paints and the disadvantage they pose, the Parliamentary Standing Committee of Transport, Tourism and Culture has said the following, “Anti-fouling paints are used to coat the underwater area of ships to prevent sea life (such as algae and mollusks) attaching themselves to the hull, thereby slowing down the ship. This also leads to increase in weight and hence more fuel consumption. But, the harmful chemicals used in anti fouling paints get released in the water and damage the marine life1.”

This amendment applies to all ships (Section 356P), which has Indian flags and also those which enter the waters of India, or are within the Indian jurisdiction of Exclusive Economic Zones, Continental shelf, and those areas which are under the Marine Zones Act 1976, as well those ships which do not carry Indian flag but are under the authority of India. This does not apply to naval, auxiliary and non-commercial ships under the Government’s authority. However in view of the recommendations given by the Parliament Standing Committee, it has been a lacunae as to how many ships are outside the ambit of this Amendment, as the Ministry in one their meetings with the Committee, it came to knowledge that data about non-commercial ships is not available therefore there are still a quantifiable data left to be known which would affect the marine environment. In my view, the application of the Amendment is rightly made to exclude the naval and auxiliary and non-commercial ships, as these ships are different than those used in the trade trips around the world, and do not have much movement like there other counterparts. Even many other Conventions have given such exemptions to naval and auxiliary ships, which is not only highlighted in the Report.

Coming to the core elements which has been given in this Bill, are as follows:

Section 356S : Issuance of Certificate of Anti-fouling

Any Indian ship which is above 400 tonnage and is undertaking an International Voyage needs on-board an anti-fouling certificate is required, and for those which are under 400 tonnage, and are not undertaking an International Voyage, but which needs to be registered, also requires such a certificate. This has to be read with Section 356T whereby Indian Government and reciprocally the government of a foreign country who is a party to this Convention can issue the certificate to foreign ships and Indian ships respectively, if they fulfil the criteria of the anti-fouling system.

Section 356U : Control of waste materials

The waste which is produced after the removal of the anti-fouling system is to be collected, handled, treated and to be disposed in such a manner which environmentally sound, in order to protect human health. This is not only a beneficial legislation for marine species, but also for human beings, who are associated with the fishing industry. The reason being that once this paints are removed, the fishes which would be dying usually due to it, will stop, and the will result in increased fishing activities, and also the fact these are to be disposed off in a manner which is to be in accordance of the international rules and the Parliamentary Committee has also lauded this effort of the Parliament and has directed to frame rules under this provision for safe disposal of the remains.

Monitoring of these certificates and compliance

Section 356V provides that every ship needs to maintain a record of anti-fouling systems, and read with section 356W allows a surveyor or a person appointed by Director General, to check on-board valid certificate, the see the sampling of the anti-fouling system, to see whether the obligations, restrictions imposed are complied with and to verify the records of the system also. However with respect of this the Committee has shown certain reservations, which are rightly so, as the words “surveyor, or any person qualified by the Director General” are ambiguous and it was recommended to use the words “any person authorized by Director-General, Shipping as Surveyor”. In my opinion, the words which are recommended by the committee, though clear would not have not made any addition as the Surveyor would also be appointed by DG, and the other person could be anyone, providing a leeway to the DG to appoint an environmental expert, a retired naval officer etc. and the words as they stand in the Bill are not prone to misinterpretation. 356X is a provision which tell the DG on the report of the surveyor that the ship has contravened any provision, the DG can detain the ship until the contravention is removed, or can levy a penalty from the ship which is given under section 436.

 The following table shows the penalties given under Section 436;

Contravention of section 356R controlling the anti-fouling systemFine extending upto 5 lakhs
Contravention of section 356S about issuing a certificate of anti-fouling system Fine extending upto 1 Lakhs
Contravention of Section 356U about controlling the waste of removal of paints Fine extending upto 50000/-
Contravention of section 356V on failure of the master of the ship to maintain the record of the anti-fouling system Fine extending upto 50000/-
Contravention of section 356W(1) Fine extending upto 50000/-

The Committee, is in support of these fines, as they are adequate and can act as a detriment, more so when seen in the terms of foreign currency. In my opinion these stringent penalties show a serious mission to save the marine life, and it requires to be seen how these are implemented, and how the contraventions are decreased.

Conclusion

The Bill is an effort on the part of Indian government, that the coastline of India is kept safe from the harmful effects of the anti-fouling systems. The Bill is very clearly drafted. It is helpful for the marine industry which not only thrives on sea trade but also on the various marine culture for tourism purpose, and for fishing purposes.

  1. 197TH Report on Merchant Shipping Bill 2013, Available at http://www.prsindia.org/uploads/media/Merchant%20Shipping/SCR-Merchant%20shipping%20%28A%29%20bill.pdf []