MARINE ENVIRONMENTAL POLLUTION
Moses v MV Sea Chase [2001] FMSC 56; 10 FSM Intrm. 45 (Chk. 2001) (15 February 2001)
Marine Environmental Pollution- Only State allowed to collect under Environmental Protection Act- Vessel must be under court’s control in order to exercise in rem jurisdiction- Common law prohibits 3rd party action against insurer.
The defendant vessel ran aground on a reef. The reef was damaged and petroleum products spilled. The vessel was salvaged and was no longer on the reef. The plaintiffs including a person claiming ownership of the reef, and the municipal government claiming the reef as part of its municipality sought compensation for damage to the reef system as a result of negligent navigation. The plaintiffs included the vessel’s insurer as well as the vessel among the defendants. The defendants filed a number of motions to dismiss the action.
DECISION: Action for $100,000 per day damages pursuant to Chuuk State Environmental Protection Act dismissed. In rem action against vessel dismissed. Claim against insurer dismissed.
HELD: The plaintiffs relied on s.8(1) of the Chuuk State Environmental Protection Actin their claim for $100,000 per day for damage to the reef. The court stated that the penalty created under the Act may only be asserted and collected by the Chuuk Environmental Protection Agency. The claim against the vessel was dismissed because the vessel had not been seized by court process and was no longer in the jurisdiction. Thus the court could not exercise in rem jurisdiction over the vessel. The claim against the vessel’s insurer was dismissed. As a general rule common law prohibits actions by a 3rd party against an insurer absent some statute or contractual provision.
Marine Environmental Pollution- Negligence- Public and Private Nuisance- Damages resulting from groundings and oil spills
The defendant vessel struck a reef while navigating a channel into the lagoon. The reef was damaged, and fuel leaked from oil tanks into the lagoon. A cleanup effort was undertaken but all of the oil could not be removed, especially along the mangroves. There was a ban which lasted for 5 months on the use of the lagoon which affected swimming, fishing and shelling. A class action suit was brought by 3 traditional chiefs as representatives of the people of the coastal municipalities. The plaintiffs sought compensation for physical damage to the reef structure and resources asserting that the reef was subject to traditional ownership and use by the residents of the coastal municipalities; and compensation for the effects of the oil spill including the inability to use the resources of the inner lagoon as well as for injuries to the natural resources themselves. The action was brought in rem against the vessel and in personem against the vessel owner, the vessel’s charterer and the vessel’s owner. The claim was for compensation was based in negligence, and public and private nuisance.
DECISION: Claims in negligence and nuisance allowed. Damages were awarded for damage to reef, mangroves and marine resources, and loss of use. Compensation was denied for mental anguish, and loss of swimming opportunity.
HELD: A cause of action is available in maritime negligence for recovery of damages resulting from groundings and oil spills. Causation in maritime tort law is similar to the common law causation principle: “An injury is proximately caused by an act, or failure to act, whenever it appears from the evidence that the act or omission played a substantial part in bringing about or actually causing the injury or damage, and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.” Fornier v. Petroleum Helicopters, Inc., 665 F. Supp. 483, 486 (E.D. La. 1987) (proximate cause standard generally applicable in maritime tort cases); see also Lebehn v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 348, 353 (Pon. 2001). The vessel breached its duty to safely navigate the channel and that caused the fuel oil spill which damaged the plaintiffs’ marine resources. Damages were also available in private nuisance because the plaintiffs suffered substantial interference with the use and enjoyment of their property as a result of the defendants’ improper navigation which could be characterized as negligent or reckless. The claim in public nuisance was also successful, the court finding that the plaintiffs suffered damages different in kind from that suffered by the public at large.3
Marine Environmental Pollution- Determination of quantum of damages awarded as a result of reef grounding.
The case arose out of a reef grounding. The plaintiffs sought compensation for damage to the nearby reef that was the source of the community’s fish supply. The productivity of the reef was diminished following the grounding. Additionally there were incidents of ciquatera poisoning from eating the fish and this may have been the result of the damage to the reef. The plaintiffs were granted summary judgement and there was a hearing to determine damages.
The court considered various means of monetary valuation including commodity values, tourism value and replacement value. The court also considered the amount of compensation awarded in a previous grounding. Expert testimony was relied upon to determine damages. Cost of clean up was also awarded.
Marine Environment Pollution- Class certification for class action- Reef grounding- Damage to traditional resources.
The defendant vessel grounded on the reef. The plaintiffs named 3 chiefs to maintain the action as a class action and alleged 6 causes action: maritime negligence, infliction of emotional distress, unseaworthiness of the vessel, trespass, nuisance (public and private) and punitive damages. There were 2 classes of plaintiffs- all residents of the affected community and those who owned the natural resources by tradition. The plaintiffs filed a motion for Class Certification.
DECISION: Plaintiffs who owned the resources by tradition were granted conditional
certification for all causes of action except for the infliction of emotional distress claims
HELD: Only the class of plaintiffs who had traditional rights to the resources were considered for certification because they were the only class that was represented by a named plaintiff of that class. The court found the requisite commonality to the class where the common questions as to liability predominated over individual questions. The court did not include the emotional distress claim because the complaint did not allege that the class as a whole suffered a common physical injury. The certification was conditional upon the court receiving more information of the potential number of affected residents to confirm the numerosity requirement; and the court also required further evidence that the named plaintiffs were adequate class representatives especially in light of the fact that only one class of plaintiffs was considered for certification.
Pohnpei v KSVI No 3 [2001] FMSC 58; 10 FSM Intrm. 53 (Pon. 2001) (16 February 2001)
Marine Environmental Pollution- State is party to recover for losses suffered as a result of reef grounding.
A vessel grounded on the outside edge of the reef which surrounds Pohnpei. The state of Pohnpei and the municipality of Kitti filed separate complaints seeking compensation for damage to the reef, submerged lands and marine resources. The state filed a motion to dismiss the municipality’s complaint stating that the state was entitled to damages from the grounding because the state is the owner of the reef, submerged lands and affected marine resources. The parties requested that the court determine before trial the legal ownership of the submerged areas allegedly damaged by the grounding.
DECISION: Pohnpei is the legal owner of the submerged lands and living resources and is the party entitled to recover for any injury to these resources. Motion to dismiss not granted because municipality may be able to recover other losses (such as damaged nets and traps).
HELD: The court looked to the Constitution to decide that the state was the owner of the submerged reef and marine resources. However the Constitution also guaranteed traditional rights to fishing and to the use of the marine resources. As such, damages recovered by the state for injury to this property should be placed in a trust for the people and the funds are to be used to repair harm done to damaged areas. The municipality failed to define the specific group within a specific area that had suffered the loss as a result of the grounding. The municipality had no general right to recovery for damages to the reef whose ownership rested in the state.
Marine Environmental Pollution- Protection of the Sea (Shipping Levy Act) No. 8 of 2003- Interpretation of “ship”
The plaintiff sought the court’s interpretation of the word “ship” as used in the Protection of the Sea (Shipping Levy Act) No. 8 of 2003.
DECISION: The plaintiff’s vessel does not come within the meaning of the Act and does not attract levy.
HELD: The vessel may carry oil for its use in the operation and running of the vessel. The plaintiff’s vessel does not actually carry oil in bulk as cargo and therefore does not come within the purview of the Act.
Marine Environmental Pollution- Quantum of fine for oil discharge in territorial waters- circumstances considered
The was an accidental discharge of diesel oil into the harbour. The court considered the amount of fine which should be levied under the legislation. The maximum fine was $200,000.
DECISION: Fine of $1,000.
HELD: The court treated the discharge seriously but there were a number of factors that kept the amount of the fine at the lower end. The oil discharged was diesel oil and not the more damaging heavy oil. There was no appearance of gross negligence. It was a new vessel and the discharge arose out of lack of knowledge of the vessel’s operation. There was no discernable damage caused as the oil drifted out to sea.
Marine Environmental Pollution- Lump sum payment appropriate for loss of fishing rights over long term mining contract
The Wardens’ Court had awarded periodic payments of 1500 pounds of fish per year for the duration of a 42 year mining lease to the clan whose fishing had been affected by the mining company’s operations. This was purportedly pursuant to the Mining (Bougainville Copper Agreement) Ordinance 1967. The mining company sought to have the order quashed.
DECISION: Order quashed.
HELD: It was not clear that the Wardens’ Court acted under the correct provision of the legislation. There was a failure to clearly identify and specify the persons on whose behalf the award for compensation was made. Compensation was not necessarily tied to the duration of the lease. The compensation was for the loss of a right and would be more properly paid in a lump sum.
Yap v MV Cecilia I [2005] FMSC 41; 13 FSM Intrm. 403 (Yap 2005) (19 September 2005)
Marine Environmental Pollution- Charterparties- Pollution offences alleged against charterer and owner of vessel- Court gains no personal jurisdiction over vessel owner on basis of bareboat charter
There were 5 causes of action all based on a central allegation that the vessel had on numerous occasions discharged petroleum based effluent. The vessel was under a bareboat charter between the defendant owner and the defendant charterer. The defendant owner served a motion to dismiss for lack of personal jurisdiction on the basis that he had no control over the vessel and he lacked the minimum contacts with the forum sufficient to subject to the court’s jurisdiction.
DECISION: Motion granted
HELD: Under a demise or bareboat charter the charterer takes complete control of the vessel, mans it with its own crew and is treated by law as its legal owner. The charterer is potentially liable for collision, personal injury to master, crew and third parties, pollution damages, and for the loss or damage to the chartered vessel. Vessel owners normally have no personal liability but the vessel may be liable in rem. As such, the existence of the bareboat charter did not bring the owner into the court’s jurisdiction either on the basis of ‘doing business’ provision of the long arm statute, or under the provision based on the operation of the vessel within territorial waters.