Chapter|1: INTRODUCTION
- History and Origin of Shipbreaking Industry
- A Brief Note on Gujarat
- A Brief Note on The Case of Alang Shipbreaking Yard
- A Brief History on The Platinum II Case
History and Origin of the
Shipbreaking Industry
Shipbreaking or ship demolition is a type of
ship disposal involving the breaking up of ships for scrap recycling, with the
hulls being discarded in ship graveyards. Most ships have a lifespan of a few
decades before there is so much wear that refitting and repair becomes
uneconomical. Shipbreaking allows materials from the ship, especially steel, to
be reused. Equipment on board the vessel can also be reused. Until the late
20th century, shipbreaking took place in port cities of industrialized
countries such as the United Kingdom
and the United States.
Today, most shipbreaking yards are in developing countries, with the largest
yards at Gadani in Pakistan,
Alang in India, Chittagong in Bangladesh
and Aliaga in Turkey.
This is due to lower labor costs and less
stringent environmental regulations dealing with the disposal of lead paint and
other toxic substances. Some “breakers” still remain in the United States
which work primarily on government surplus vessels. ere are also some in Dubai, UAE for tankers. China used to
be an important player in the 1990s. It is now trying to reposition itself in
more environmentally friendly industries.
The business of shipbreaking is one of the
numerous industries which have grown up round shipping and the sea. It was
apparently first practised in the dismantling of ships which had been driven
ashore in bad weather. Those who had the legal right to a wreck, and often
those who had not, used the materials for building their huts ashore or for any
other purpose.
Shipbreaking as an industry does not appear until
a later date, but in Tudor days it was the regular practice to break up
worn-out warships in the dockyards and to work all the material that was still
serviceable into new hulls. The frequent shortages of seasoned timber,
especially in wartime, made this practice necessary and it saved infinite
trouble and labour with primitive tools in the making of new parts. Many of the
ships so built, however, showed weakness from the first.
Gujarat
Gujarat has the longest shoreline of about 1663 km.
The Gujarat coast provides a wide variety of
coastal features due to its varied physiography, geomorphology, coastal
processes and river discharge into the sea. The Gujarat
coast has been broadly classified into five regions. The Rann of Kachchh, the
Saurashtra coast, Gulf of Kutch, Gulf
of Khambhat and the South
Gujarat coast, based on the distinct variation in the
wetland/landform categories. These variations are due to climate, substrate
constituents and topography. Mangrove forests occupy creeks and tributaries that
crisscross the coastal belt. The areas selected for the present study are Gulf of Kachchh,
South of Dwarka and Diu
Islands.
People have lived in Gujarat
for hundreds of thousands of years and there are many traces of primeval life
here. Archaeologists have discovered ruins of port towns, which existed in the
3rd or the 2nd millennium BC indicating that marine trade was prevalent then. Gujarat had trade relations with many countries in those
days. Gujarat’s relations with other countries
were weakened after the abandonment of cities of the Indus Valley Civilisation.
Little is known of the inhabitants of the times gone by except what can be
gleaned from the artefacts left behind by them. Trade and navigation, both
oceanic and riverine, again grew tremendously in the Mauryan period which
extended from 321 to 180 BC. The Arabian Sea
was mainly used for the purpose of maritime trade. Thus, Gujarat is known for
its navigation from ancient times and had established trade links with ancient
countries like Sumer, Phoenicia, Rome, Egypt, Arabia, Iran, East Africa, Lanka, Brahmadesh, Malaya,
Java, Sumatra, China etc.
Alang Shipbreaking Yard
At Alang in the State of Gujarat
in India,
ships are beached up to the yard because of its peculiar marine conditions and
high tide. Such conditions are not available at other shipbreaking countries
where the ship does not come up to the yard. They lighten the ships on the sea
bed and the pieces are pulled to the yard. Once the ship is lightened, it is
brought to the yard. Lightening of the ship on the sea bed is dangerous as far
as oil pollution is concerned in case of tankers. Beaching method in shipbreaking
has to be continued as it is most economical and practical. All the major shipbreaking
countries presently follow this method.
Ships are mobile structures of comprehensive
size and consist mostly of steel. At the end of their active life, they become
a sought-after source of ferrous scrap. This acts as an alternative to the
non-renewable resource of ore and is particularly suited for the production of
simple steel products. Obsolete vessels available for scrapping may also
represent a useful source of supply for second hand equipment and components.
The importance of shipbreaking as a potential
source of raw material for the re-rollers was recognized in early 80’s. As a
result, import of ships for breaking was accelerated. Prior to 1979 the Shipbreaking
activities in India
was limited to breaking of barges, small sized ships and casualty ships. It was
concentrated in two major parts namely Mumbai and Calcutta.
Due to increase in trend of import of ships for
breaking in India,
an emphasis was laid to examine various sites suitable for this activity. Amongst
various methods of Shipbreaking, the beaching method depends on skilful
harnessing of zero cost tidal energy at sheltered coastal locations and
warrants the least capital investment. Considering the favorable parameters for
beaching method like high tidal range, firm seabed, gentle seaward slope etc.,
it was decided to set-up a ship breaking yard on the western coast of Gulf of
Cambay near Alang village. The first vessel – MV KOTA TENJONG was beached at
Alang on 13th Feb. 1983. Since then, the yard has witnessed spectacular growth
and has emerged as a leading shipbreaking Yard in the world.
Breaking of ships on such a large scale would
obviously necessitate extensive care on issues like physical and social
infrastructure, worker safety and welfare, environment management,
establishment of down stream and ancillary industries etc. These involve not
only the financial resources but also many others influencing factors viz.
proper knowledge base, compatibility of mindset between workers and the ship
recyclers, availability of land and negotiation skills for legal issues. GMB as
a regulator has put in sincere efforts to develop above requirements to
accelerate the growth of this industry.
Alang located on the western coast of Gulf of
Cambay, in the western part of India,
is the largest ship-recycling yard in the world. Ever since its inception in
1982, Alang has emerged as one of the choicest ship-scrapping destinations for
the ship owners around the world. Hundreds of ships from all over the world
find their final resting place in Alang every year.
There are 173 plots to carry out the
ship-recycling activities. This activity forms an industry by itself, as it
provides around 30,000 jobs in Alang itself and generates steel totaling to
millions of tons every year. That too, with minimum consumption of electricity.
If we examine these bare facts from the ecological point of view, it amounts to
saving of huge amount of non-cyclic and precious mineral reserves like coal,
petroleum etc. It is therefore, one of the most lucrative industries as also
contributing to ecological balance.
Millions of tons of steel is recycled by
re-rolling mills. Many mechanical spares find their applications in one-way or
other. Various electrical components hold special value for the fixed set of
customers. And the list goes on. A truly strong platform then, to promote
re-usability of products, which are otherwise considered to be SCRAP. Also
deserves special compliments, as many of these do not require re-processing and
so no incidence to consume power and water.
The present recycling facilities in the world are
sufficient to take care of the world recycling requirements now and also in the
future and as such further facilities may not be required to enhance the
capacity. In fact, presently, there are not adequate ships at the recycling
facilities as mentioned earlier and enough spare capacity is available. Hence,
there seems to be no necessity to enhance the present ship recycling capacity.
All hazardous materials on board the ship which are not required for final
voyage should be removed prior to delivery of the ship for recycling.
The capacity available for breaking ships in
the world was estimated in 2005 at around 12 m.ldt (million light displacement
tonnes) whereas ships coming to the ship demolition market have drastically
come down to around 2 m.ldt. Since 2002, the availability of ships for
demolition reduced from the level of 28.0 m.dwt (million dead weight tonnes) in
calendar year 2002 to 4.5 m.dwt in the current year as on 11th November, 2005.
India’s share has also slipped from 10.8 m.dwt in 2002 to about 1.0 m.dwt in
the current year till 11th November, 2005 while that of Bangladesh has slipped
from 8.8 m.dwt in 2002 to 2.9 m.dwt in the current year. This has reflected in
exorbitant rise in the prices of ships coming for demolition at about US$350/ldt,
as against the melting steel scrap price of about US$230/tonne.
In terms of weight in Light Displacement
Tonnage (ldt), world shipbreaking amounted to 6.5 m.ldt in 2002 which has come
down to about 2 m.ldt in the current year. India’s share has been 2.7 m.ldt in
2002 which has come down to about 0.5 m.ldt in the current year till 15th
November, 2005.
Scrap recovered from ships is used as
re-rollable scrap and melting scrap in Asian countries where scrap-based
re-rolling mills are operative. In developed countries, such scrap recoveries
are used as melting scrap only fetching about US$50/tonne less than the
prevailing melting steel scrap prices. Thus, it is seen that there is no
question of shortage of dismantling capacity. Rather, there is need to reduce the
excess capacity by eliminating the casual ship recycler who compromises the
regulations, by strictly implementing the environmental and occupational
hazards rules.
The 1992 Basel Convention on the control of
transboundary movements of hazardous wastes and their disposal, control and
regulate the import of hazardous wastes into the country. India is a
party to the Basel Convention. It signed the Convention on 15.3.1990, ratified
it on 24.6.1992, and acceded to the Convention on 22.9.1992. Import of such wastes
may be allowed for processing or re-use as raw material, after each case has
been examined on merit by the State Pollution Control Board.
Current shipbreaking is centred primarily in Pakistan, India,
Bangladesh and China. Almost
all vessels, with few exceptions, are broken up at beach facilities. Compared
with standards or general norms expected within the industrialised countries,
current methods of ship dismantling fail to comply in many aspects.
Insufficiencies related to the adopted procedures include, but may not be
limited to precautions, training and awareness and to facilities available.
Furthermore, the implementation of measures for improvement will affect not
only the ship-dismantling facility but may also raise issues relating to
procedures prior to dismantling, as well as to the destiny of the waste or
material streams derived from the extraction process. Problems generated by the
insufficiencies of current ship-dismantling practices have consequences for not
only the environment but also for occupational safety and health of the
workers.
By occupying and expanding the areas required
for breaking, the dismantling industry affects both the local surrounding,
environment and society. The established local community may be relying on
basic industries such as fishery and agriculture, hence conflict of interests
may become an issue. Discharges and emissions to sea, ground and air cause both
acute and long term pollution. The lack of containment to prevent toxins from
entering the environment is a major concern.
PLATINUM – II
SS Independence was an ocean liner built in
1951 for American Export Lines. Between 1974 and 1982 she sailed as Oceanic
Independence for Atlantic Far East Lines and American Hawaii Cruises, after
which she reverted to her original name. Independence
was then operated by American Global Line between 1982 and 1996, and again
American Hawaii Cruises until 2001 when she was laid up in San Francisco.
In 2006 the ship was renamed Oceanic and, after
being mothballed for seven years, she left San Francisco
for Singapore
on 8 February 2008. The destination later changed to Dubai. In 2009 she was renamed Platinum II
and left Dubai under tow for the shipbreaking
yards in Alang,India. After having been turned
away from the scrap yards due to hazardous materials she was grounded off
Alang. Later her hull broke in two aft of the smokestacks, making refloating
impossible. She will be scrapped on the spot.
Independence had a sister ship, SS Constitution, which sank
while under tow en route to be scrapped in 1997.
American Export Lines
SS Independence, 23,719 GRT, and the 23,754
GRT, SS Constitution where built by Bethlehem Steel Corporation, Quincy,
Massachusetts, USA for the American Export Lines to operate on the US
Mediterranean service. She was constructed in yard 1618 of the Bethlehem Steel
Corporation’s Fore River Shipyard, Quincy Massachuetts. She was launched on
June 3, 1950 and completed January 1951. Both ships sported black hulls and
American export lines funnel colors. Independence
departed on her maiden voyage, being a cruise to the Mediterranean,
on February 11.
On April 12 she departed her first liner voyage from New York to Genoa, later
the route was changed to New York to Naples. In 1959, both
ships were sent to Newport News,
where their forward superstructure was moved 22 feet forward and lifted up by
one deck, in order to increase First Class passenger capacity by more than 100
berths. Sadly, the reconstruction changed the previously well balanced,
graceful look, especially with the loss of half of the glass enclosed promenade
deck and the added height forward. Accommodations were now listed as 484 First
Class, 350 Cabin Class, and 254 Tourist Class passengers. During their heyday,
many movies were made onboard with such stars as Cary Grant and Deborah Kerr
and many others. They also carried high profile passengers such as President
Harry Truman, Alfred Hitchcock, Walt Disney, even King Saud. Both ships
continued on the Mediterranean run, however, like most Trans-Atlantic liners of
the day, passenger numbers dropped and the service was suspended in 1967.
Atlantic Far
East Line
In January 1974, both Independence
and Constitution were sold to the Atlantic Far East Line Inc., Monrovia, being part of
the massive C.Y. Tung group. Independence
was renamed Oceanic Independence and after a refit she commenced cruising, with
a new passenger capacity of 950 passengers. However, Constitution, renamed
Oceanic Constitution, was laid up at Hong Kong
on August 4, 1974. Oceanic Independence continued
to cruise until she was also laid up at Hong Kong
on January 17, 1976. In November that year there were rumours that she was to
be sold to Shannon SA, of Panama,
but, this did not eventuate. Oceanic Independence remained laid up and was
renamed Sea Luck I for a short time but soon after renamed Oceanic Independence
once more.
American Hawaii Cruises
As they were no longer American flagged ships,
C.Y. Tung was not able to operate them within American waters. However, in 1979
both the U.S. Senate and House of Representatives approved their return to the
States. In 1980, C.Y. Tung transferred Oceanic Independence to their newly
established; US based American Hawaii Cruises Inc. After extensive repairs and
a refit at the Kawasaki Dockyard Co. Ltd, Kobe Japan, Oceanic
Independence now accommodated 750 one class passengers, and she was listed as
being 20,220 GRT. Oceanic Independence departed
on her maiden cruise in June, 1980, operating 7-Day cruises around the Hawaiian
Islands from Honolulu.
On September 24, 1981, she sustained minor damage off the coast of Nawiliwili, however passengers were safely taken from the
ship and flown home. In October she was taken to San Francisco for repairs and soon returned
to service. In 1982, American Hawaii Cruises Inc became part of the American
Global Line, Inc, and to the joy of Americans she became Independence once again. With Independence having been successful in 1980, Oceanic
Constitution was refitted in Taiwan
and departed for Honolulu
with a passenger capacity of 1,088, and was listed at 20,199 GRT. She was
transferred to the American Global Line, Inc, and was re-christened by Princess
Grace of Monaco
under her original name, Constitution. She commenced cruising out of Honolulu in June 1982.
In
1984, her passenger numbers was reduced to 800. Both ships were officially
reregistered in Honolulu
in 1987. In 1994 Independence
was withdrawn from service and she headed to Newport News Shipbuilding and Dry
dock Company for an extensive refit. However, in April 1996 American Hawaii
Cruises decided to retire the forty six year old Constitution, which they said
was due to her high running costs and renovations required. She was finally
laid up due the company’s financial problems. During her lay-up many of her
parts were taken and were used on Independence.
After the demise of Constitution, her older sister became the last US built
ocean liner to sail under the American flag. Celebrations were held on board
during Independence’s
1,000th voyage in August 1999. 2001 bankruptcy of American Hawaii Cruises, the
owners of the American Hawaii Line, Independence
became the property of the US Maritime Administration and sailed from Honolulu to San
Francisco, arriving on 8 November 2001.
In February 2003, Independence was sold at auction for US$4
million to Norwegian Cruise Line, which also acquired SS United States. At this
time, NCL received permission to create US flagged cruise operation, to be
named NCL America. (US
flagging is a valuable competitive advantage, as the Passenger Vessel Service
Act prohibits non-US lines from transporting passengers from one US port to another without stopping at a foreign
port, and in particular it permits 7-day Hawaii
cruises. As US
flagging requires US-built ships, no other major cruise operation is US-flagged.)
In mid-2006, Independence was renamed Oceanic, amid
speculation she may be scrapped. In July 2007, Norwegian Cruise Line announced
that Oceanic had been sold with later reports claiming the ship had been
purchased by an American company.
Departure from San Francisco
Oceanic was towed out of San Francisco Bay
on 8 February 2008. Its final destination was revealed to be Singapore, but was changed to Dubai. Rumors had been swirling that the ship
was destined for a scrapyard in India
or Bangladesh,
but has been stopped due to a complaint filed by the United States
Environmental Protection Agency that the ship was being towed to a overseas
scrap yard.
Global Marketing Systems, the last owner of
Oceanic, was fined $518,500 for exporting the ship for scrap without prior
removal of toxins such as asbestos and PCBs.
Name change and departure to
Alang
In 2009 Oceanic was renamed Platinum II and
departed Dubai
for Alang, being towed by a tug Barakhoda. The tug apparently lost all power
and setting the two vessels adrift some 25 km off Alang. Another tug was sent
to assist Barakhoda and her crew of nine.
Technical details
Independence measures 683 feet (208 m) in length and 23,719
gross register tons. She was capable of cruising at 26 knots. She accommodated
1,000 passengers, and was designed to accommodate 5,000 soldiers during
wartime. According to Life magazine, “It will house passengers in Henry
Dreyfuss-designed cabins, apartments, and ‘penthouses,’ keep their shipboard
spirits up with branches of Fifth
Avenue shops, handsome public rooms and bars
decorated with old tattoo designs, collections of ships in bottles and Early
American silver. Late American devices include 125 feet (38 m) of picture
windows in the observation lounge, polarized glass in portholes to control
light and glare, and bedside telephones from which a passenger can phone anyone
within 5,000 miles.”
CHAPTER|2: RESEARCH METHODOLOGY
- Sources
- Hypotheses
- Aim and Significance
Methodology in Brief
The present research study is mainly a
doctrinal and analytical. Keeping this in view, the researcher utilized the
conventional method of using libraries consisting of primary sources.
As the study is doctrinal in nature, historical
and doctrinal methods are adopted because it is not possible to study purely by
experimental method.
The researcher has also studied secondary
sources i.e. judgments, conventions etc.
Hypotheses
Before commencing the project work the
researcher was of the view that:
- Whether there
was any Environment Impact Assessment done before the acceptance of
contract for the breaking of Platinum II.
- Whether the
Gujarat Maritime Board is environmentally blind or environmental concerns
are least.
- Whether the
views of Supreme Court in such shipbreaking cases could be critically
reviewd under Doctrine of Prospective Overruling.
Aim & Significance of the
Study
The researcher carried out the research work
with the objective to know regarding ship breaking activities in Alang, also to
assess the damage caused by such activities.
The research work would be helpful to students
as it is compilation of Itinerary of Platinum II, Alang Ship Breaking yard,
Legal Regime and View of Supreme Court in such cases.
Chapter|3: LEGAL REGIME
- International Convention
- Indian Statutes
Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal
Article 6(1)
The State of export shall notify, or shall
require the generator or exporter to notify, in writing, through the channel of
the competent authority of the State of export, the competent authority of the
States concerned of any proposed transboundary movement of hazardous wastes or
other wastes. Such notification shall contain the declarations and information
specified in Annex V A, written in a language acceptable to the State of
import. Only one notification needs to be sent to each State concerned.
Article 13(3)(b)
Information regarding transboundary movements
of hazardous wastes or other wastes in which they have been involved,
including:
(i) The
amount of hazardous wastes and other wastes exported, their category,
characteristics, destination, any transit country and disposal method as stated
on the response to notification;
(ii) The
amount of hazardous wastes and other wastes imported, their category,
characteristics, origin, and disposal methods;
(iii) Disposals
which did not proceed as intended;
(iv) Efforts to achieve a reduction of the
amount of hazardous wastes or other wastes subject to transboundary movement;
Annex.1 (Y10)
Annexure 1 states the Categories of the Waste
to be controlled in which under the entry Y10 it has been stated “Waste
substances and articles containing or contaminated with polychlorinated
biphenyls (PCBs) and/or polychlorinated terphenyls (PCTs) and/or polybrominated
biphenyls (PBBs)”
The Basel Convention on the Control of Trans
Boundary Movements of Hazardous Wastes and their Disposal is the most
comprehensive global environmental treaty on hazardous and other wastes.50 170
Countries are Parties to the Convention, India is one of them. This
international legal framework was established in order to react against the
rise of toxic trading. Indeed, the strict Law, Environment and Development
Journal environmental standards in industrialised countries led to a dramatic
rise in the cost of hazardous waste disposal. Therefore ‘toxic traders’ began
shipping hazardous waste to developing countries where there were no facilities
to dispose hazardous waste in an environmentally sound manner.
The Basel Convention sets an exhaustive list of
products and materials that it considers to be hazardous wastes. However, the
Convention also applies to the wastes that are defined as, or are considered to
be hazardous wastes by the domestic legislation of the Party of export, import
or transit. The Basel Convention is based on the prior informed consent of the
country of export and the country of import of hazardous wastes. For example,
Article 6 states that ‘the State of export shall notify, or shall require the
generator or exporter to notify, in writing, through the channel of the
competent authority of the State of Export, the competent authority of the
States concerned of any proposed trans boundary movement of hazardous wastes or
other wastes’ and then the State of import shall ‘respond to the notifier in
writing, consenting to the movement with or without conditions, denying
permission for the movement, or requesting additional information’.
Pursuant to the Convention, Parties ‘shall not
permit the export of hazardous wastes and other wastes to the Parties which
have prohibited the import of such wastes, and shall prohibit or shall not
permit the export of hazardous wastes and other wastes if the State of import
does not consent in writing to the specific import’. As the whole agreement is
export based- that is precaution has to be exercised at the instance of export
therefore India
is in conformance and no violation has been committed. The Basel Convention
tries to establish the traceability and the control of hazardous wastes and
tries to ensure that those wastes will be disposed of in an environmentally
sound manner. For example, the Convention requires that ‘hazardous wastes be
packaged and labelled and transported in conformity with generally accepted
international rules’. It also obliges ‘hazardous wastes [to] be accompanied by
a movement document from the point at which a transboundary movement commences
to the point of disposal’. The Convention also states that ‘each Party shall
require that hazardous wastes or other wastes, to be exported, are managed in
an environmentally sound manner in the State of import or elsewhere’. However
the Convention does not give a detailed definition of ‘environmentally sound
management of hazardous waste’ that has to be followed by State Parties. It
only refers to nonobligatory technical guidelines.
The Convention mentions the issue of ships in
its Article 1.4 which states that ‘wastes which derive from the normal
operations of a ship, the discharge of which is covered by another
international instrument, are excluded from the scope of this Convention’. This
Article simply recognises the competence of a pre-existing treaty (MARPOL) on
the regulation of wastes derived from a normal operation of a ship such as
bilge water, fuel, and sewage. Therefore, this article does not exempt ships
which contain hazardous wastes from the Basel Convention. The Seventh
Conference of Parties, in order to clarify that issue, asserted that
end-of-life ships that contain hazardous wastes could be qualified as hazardous
wastes under the Basel Convention. The Decision VII/26 adopted by consensus of
all 160 Parties states that ‘Recognising that many ships and other floating
structures are known to contain hazardous materials and that such hazardous
materials may become hazardous wastes as listed in the annexes to the Basel
Convention’. As Greenpeace argues, such statements only point out that
materials in ships can be hazardous wastes but it does not clarify when such
material become wastes. However, the next statement in decision VII/26
clarifies that a ship can be a waste. It states that ‘noting that a ship may
become a waste as defined in Article 2 of the Basel Convention and that at the
same time it may be defined as a ship under other international rules’. Article
2 of the Basel Convention mentions that ‘Wastes are substances or objects which
are disposed of or are intended to be disposed off. Therefore, those 2 statements
underline that end-of-life ships are, when intended to be disposed of, (with
regard to Article 2 of the Basel Convention) hazardous wastes falling under the
Basel Convention.
Environment Protection Act, 1986
There has been violation of S.6(e) which states
that “ the prohibition and restrictions on the location of industries and the
carrying on of processes and operations in different areas” and also Section 8
which deals with Hazardous Substances i.e “Persons handling hazardous
substances to comply with procedural safeguards: No person shall handle or
cause to be handled any hazardous substance except in accordance with such
procedure and after complying with such safeguards as may be prescribed
Hazardous Substances Rules 2007
The Government of India has framed the
Hazardous Waste (Management and Handling) Rules, 1989 and Hazardous Waste
(Storage Export and Import) Rules, 1989 to regulate the disposal of hazardous
waste in India.
These rules make it mandatory for any organization to seek the permission of
the local state pollution control board for grant of authorization for carrying
hazardous substances in the form of collection, reception, treatment,
transport, storage and disposal of such wastes.
Cleaning, emptying and maintenance of petroleum
oil storage tanks including ships leads to hazardous waste i.e. Oil-containing
cargo residue, washing water and sludge, Chemical-containing cargo residue and
sludge, Sludge and filters contaminated with oil, Ballast water containing oil
from ships.
There had been violation of Rule 5(1) which
states that “Import of hazardous wastes from any country to India for disposal shall not be
permitted”
As per Terms of Reference No. ii, the Team is
required to assess the hazardous waste items. Accordingly, the Team made an
effort to assess the quality/quantity of the waste materials based on various
documents submitted by GPCB and other concerned agencies mentioned above. Some
associated details have been highlighted in chapter –I above of this report. It
is submitted that inbuilt Hazardous waste in the structure of the Ship or any
such old ships of 1950s, are Asbestos Containing Material (ACM-in various form
like insulating material, wall plate, ceiling, floor tiles etc)) and Material
containing PCBs (like paints, cables, etc.).
Item-wise details are provided hereunder:
Asbestos Containing Material
(ACM)
• As per documents (submitted along with
Application) by M/s Futurenet Group, the quantity of ACM is 147.3 MT.
• As per GPCB, the estimated quantity of ACM is
more than 200 MT.
• During the inspection, Central Team made an
assessment of ACM as per which the quantity is approximately 238 MT.
Poly Chlorinated Bi-phenyles
(PCBs)
• As per GPCB report, the quantity of PCB
containing materials is 20 MT.
• However, Central Team could not assess the
quantity of PCB containing material, as no details of drawings are available
with the ship to know the length and thickness of the cables etc. and having
mostly concealed wiring.
It is worth mentioning that none of the
aforesaid hazardous waste were found in the Ship on board in loose form or as a
cargo by the Central Team.
It is to be noted that because of
structure/type & nature of ACM/PCBs in the Ship Platinum-II or for that
matter in any other Ship, it is a difficult task to exactly estimate the
quantities of ACM, PCBs containing materials. However, it is worthwhile to
mention that ACM and material containing PCBs in this ship must be lesser in
quantity compared to that in earlier dismantled Ship ‘Blue Lady’, another
passenger Ship, as that was much bigger than the Platinum-II. It was given to
understand that ACM, PCBs and other hazardous wastes are to be disposed of as
per procedures laid down by the Committee of Technical Experts/Hon’ble Supreme
Court of India.
Used Lead Batteries
26 nos. Used Lead Acid Batteries which were
used in the Ship were by the Team found during the inspection.
Radioactive Material
• During the inspection of Central Team, no
radioactive material except in Smoke Detectors and few Exist Sign Boards (with
very small amount of radioactive material) were found.
• As per established procedure, these
radioactive materials will be disposed of at authorized radioactive waste
management facility (BARC, Trombay)
GMB Regulation 2000
- For Protection of Environment and also of
workers from fire and accidents during shipbreaking activities.
CPCB Guidelines
- Aims at minimizing the pollution impact of
ship breaking activities fixing responsibility for several authorities of state
government and shipbreaking association.
CHAPTER|4: JUDICIAL PRECEDENTS
- Clemenceau Case
- Blue Lady Case
- Platinum II Case
CLEMENCEAU CASE
According to the Greenpeace fact sheet on the
Clemenceau, in 1997, the Clemenceau was not used anymore as a warship.68 Since
1997, some parts of the Clemenceau have been sold to the Brazilian government
that owns the Foch, which was its sister ship. The Clemenceau is supposed to
host 130 tons of Asbestos and many other toxic wastes. First the warship was to
be used as a lifelike target during high seas military exercises and sunk in
the middle of the Ocean. This plan was cancelled. Then, the city of Marseille proposed in 2001 to sink the Clemenceau in the Mediterranean Sea as an ‘artificial reef’ but the warship
had to be decontaminated of its most toxic wastes. In the end, the project was
abandoned in 2003. The French government after all these unsuccessful plans
decided to sell the Clemenceau to ship dismantling companies. The Clemenceau
was then auctioned in the public market under the condition that it would be
decontaminated of asbestos in Europe.
Pending decontamination, the French State
stated that it would remain the registered owner of the Clemenceau. A Spanish
company won the bid in April 2003. This company had attempted to resell the
ship to a Turkish ship-breaker. However, the Turkish authorities refused to
accept the ship because they considered that it would be an illegal trade in
hazardous waste contrary to the Basel Convention. As the boat was being dragged
to Turkey, the French Navy
was forced to board the Clemenceau to impede the ship to be sent to Turkey. Then,
in October 2003 ThyssenKrupp, the second-highest bidder won the contract to
trade and scrap the Clemenceau. According to the Greenpeace fact sheet on the
Clemenceau, the location clause of the contract allowed some of the
decontamination work to be carried out in India. Indeed, the German Company
struck a deal with Shriram Vessel Scrap Pvt. Ltd, a ship-breaking company in India. The
warship was then sent by the German company to Greece
supposedly to be decontaminated before going to India, but the Greek authorities
refused the Clemenceau because they considered that they did not have the
capacities to remove asbestos from such a big structure.
The Clemenceau returned to France and in
2004 a French company started superficial asbestos removal activities (30 per
cent of asbestos was removed). In July 2005 another subcontractor started
removal of asbestos but most of the asbestos was still within the ship (500
tons). In December, the Clemenceau left Toulon
to be dismantled in Alang.72 In January 2006, the Supreme Court of India issued
a temporary order stating that the Clemenceau could not enter Indian waters in
order to be dismantled in Alang. The Court then constituted a Committee whose
goal was to assess whether the Clemenceau should be dismantled or not. The
Committee gave a split verdict on the issue, with seven members in favour of
accepting the ship under strict conditions and three others recommending its
return to France.
However, the Supreme Court of India, on 13
February, decided to create a new panel consisting of retired navy officers and
other specialists to investigate again whether the former aircraft carrier
should be allowed to enter the country in order to be broken at the Alang
scrapping yard in Western Gujarat. This
Committee never gave its point of view on the dismantling of the Clemenceau
because Jacques Chirac ordered the Clemenceau on 15 February 2006 to return to
French waters following the judgement of the Conseil d’Etat that considered
such an operation illegal.
BLUE LADY CASE
Research Foundation for Science Technology and
Natural Resource Policy
Versus
Union of India and Others:
A public interest litigation challenging the
import of hazardous wastes into the country was filed in 1995 in the Supreme
Court of India by the Research Foundation for Science, Technology and Natural
Resource Policy. The petition provided that ‘the import of hazardous/toxic
wastes endangering the environment and life of the people of India is
unconstitutional’. It is under this writ petition, that in September 2007 the
Supreme Court of India granted the permission to dismantle the Blue Lady at
Alang. The Supreme Court ordered the constitution of a Committee of Technical
Experts (CTE) whose task was ‘to find out whether the infrastructure as
existing at Alang presently is adequate’ in order to dismantle the Blue Lady.
The Supreme Court of India specifically asked the Committee to review 3
aspects:
• whether
pre-conditions for dismantling have been complied with;
• whether
80% of the asbestos is reusable;
• what steps have been taken to control the
environmental impacts of asbestos dust generated in the process of dismantling;
The report was submitted by the CTE on May 2007
and accepted by the Court on September 2007. The Supreme Court argued that it
accepted the report mainly because ‘it was all pervasive and it contains
opinions of expert including retired navel officers’. According to the report
‘beaching is an irreversible process’. On the issue of radioactive material the
Supreme Court stated that an inspection was undertaken by Atomic Energy
Regulatory Board and mentioned that ‘the apprehension expressed by the
Petitioner was right’. But, surprisingly, the Supreme Court added that ‘as the
matter stands today Atomic Regulatory Board has certified that the said vessel
Blue Lady beached in Alang no more contains any radioactive material on board
the ship’. The report of the CTE has recommended grant of permission for
dismantling the ship Blue Lady at Alang in accordance with the recycling plan
submitted by Priya Blue Industries. According to the recycling plan, all major
quantity of asbestos (85%) is in form of wall partitions, ceilings and roofing
in rooms and gallery and therefore it is reusable. However, the Committee
recommended ‘appropriate respiratory protection to be provided and gears in the
form of whole body coveralls, gloves, safety shoes, helmet, and goggles’ when
asbestos is removed. The Supreme Court of India considered that the Report of
the Committee of Technical Experts was ‘foolproof and had taken into account
international standards to regulate ship breaking industry’. However, such
opinion on the Committee of Technical Expert was methodically challenged by the
NGO platform on shipbreaking that argued that the Committee did not properly
assess the Blue Lady.
In the Blue Lady decision, the Supreme Court
uses a specific rhetoric that emphasises that India needs the Blue Lady’s steel
for its economic development. For example, it mentions that ‘breaking of the
vessel Blue Lady will provide to this country 41,000 MT of steel and it would
give employment to 700 workmen’ .
It then stresses that ‘India after globalisation is an emergent economy
along with Brazil, Russia, and China with an economic growth of
above nine per cent. However that growth is lop-sided. A large section of the
population lives below poverty line. Unemployment is an endemic in India.
In other words, the Supreme Court is arguing
that the dismantling of the Blue Lady is a great opportunity for India because
it will help the development of the Indian economy. However, the Supreme Court
does not take into consideration the highly probable negative consequences of
the dismantling of the Blue Lady on the workers, the communities living in
Alang and on the environment. The Court dilutes these negative impacts by
applying the concept of sustainable development in such a way that it should
respect the principle of proportionality based on the concept of balance of
interest.
In 2003, the Supreme Court of India passed a
very progressive and environmentally friendly decision on the regulation of
ship dismantling in India.
For example, unlike the 2007 judgment on the Blue Lady and its restrictive
approach of sustainable development the 2003 decision provides that ‘in order
to achieve sustainable development environmental protection shall constitute an
integral part of the development process and cannot be considered in isolation
from it’.46 Then the 2003 decision mentions that ‘the shipbreaking operation
cannot be permitted to be continued without strictly adhering to all
precautionary principles’. Moreover, the Supreme Court in the 2003 decision
orders that ‘before a ship arrives at port, it should have proper consent from
the concerned authority or the State maritime Board, stating that it does not
contain any hazardous waste or radioactive substances onboard’.48 Finally the
Supreme Court in this decision obliges that all ships ‘should be properly
decontaminated by the ship owner prior to the breaking’. The Supreme Court
decision on the Blue Lady case seems to have forgotten the previous orders it
set in the 2003 decision. Such incoherence shows the biased behaviour of the
Supreme Court of India in the Blue Lady case that is clearly privileging the
interest of the dismantling companies over the interest of the workers and the
environment.
Most of the ships that are sent to Alang to be
dismantled without being decontaminated are ships that were owned by companies
situated in OECD countries. However, in the European Union, for example, such
practice is forbidden. Indeed, the European Union implemented the Ban Amendment
of the Basel Convention that bans all exports of hazardous waste to non-OECD
countries. This Amendment includes old ships sent for scrapping when they still
contain hazardous wastes. In the case of ships it is, however, hard to enforce
such regulation since it is difficult to control when ships are sent for
scrapping. Therefore, better measures are needed to enable authorities in OECD
countries that have implemented the Ban Amendmentto impede ships before being
sent to India, Pakistan, and Bangladesh without being decontaminated of their
hazardous waste. As an alternative to Basel Convention, the International
Maritime Organisation is working on an international convention on ship
dismantling that will provide certain environmental and safety standards.
PLATINUM II CASE
Gopal Krishna
of the NGO Indian Platform on Shipbreaking (IPoS) filed a petition against the
move on Saturday. The petitioner has also sought a detailed report on the
5,000-odd ships being dismantled at the Alang ship-breaking yard since 1982.
Krishna has further urged in his plea to send the
toxic ship out of Indian waters and order an inquiry into the circumstances
under which the asbestos-laden vessel was granted entry. It also pleads for
action against the concerned officials for alleged breach of the Basel
Convention and US Maritime Laws, which prohibit export of hazardous substance for
dismantling.
The Union ministry of environment and forests
had ordered GMB in November 2009 not to allow the Platinum-II into Alang as its
nationality, originality, and registration were suspect.The central government
has told the authorities to investigate how Platinum-II was allowed to anchor
at Alang despite orders from the Supreme Court and in violation of
international covenants on keeping hazardous ships at bay.
A committee was formed by Central Government
for the review of status of Platinum II where several allegations made by
environmentalists were looked upon:
- Questioning the
anchorage permission given by GMB, the complainant has stated that besides
violation of the Orders of US Environmental Protection Agency on Toxic
Substances Control Act, the ship Platinum-II has violated Indian Supreme
Court Order dated 14th October, 2003 and 6th September, 2007.
- Whether
quantification of the hazardous waste was submitted for desk review.
Whether documents were submitted well in advance or it has been simultaneously
submitted when the vessel reached at Bhavnagar
and whether GMB and other agencies have verified the records. If these
procedures were not complied with, on what basis GMB and others accorded
anchorage permission and which agency is responsible for contempt of the
court
- After the issue
of the Supreme Court Order, whether MoEF/CPCB has carried out
review/monitor if the concerned agencies are implementing the Supreme
Court order and how to ascertain if such irregularities exist at Alang
port.
- Whether CPCB
has ever monitored asbestos fibre concentration in ambient air after the
issue of the Order
- Whether the recommendations
of the Committee of Technical Experts have been implemented and whether
any review has been done by MoEF/CPCB.
After much controversy and with demands that
the ship be returned to the U.S.
for being illegally exported, Platinum II was abandoned at Gopnath in a region
south of the Alang on the Gujarat coast.
Although she was probably no more toxic than most ships built in the 1950s and
1960s, she was deemed such for the minute amounts of radioactive materials
found in her smoke detection systems and for the usual asbestos and PCB’s
contained in ships of her generation.
According to local sources, Platinum II was
laying off shore with guards on board to protect the ship from looting and
vandals. Also, reports of the hull being cracked (an unsubstantiated charge
made by the ship’s owners to urge the Gujarat Maritime Board to allow the ship
to be beached in November) appeared to have some truth. The tug that delivered
the ship into Gujarat waters had likely
already been beached for scrapping, so another vessel would have been required
to pull Platinum II off the embankment and bring her the short distance to
Alang.
After running aground in February 2010 mud had
made it into Platinum II’s cracked hull. In later news reports from India
claimed the ship, aground and abandoned at Gopnath, some ten miles south of
Alang, was beginning to suffer structural cracks and that she would never be able
to move from her current resting place. In March 2010 the vessel’s hull cracked
aft of the accommodation (roughly at one third of the length from the aft) and
the whole hull was lying at an angle of about 35 degrees. The ship was scrapped
on the spot throughout the remainder of 2010 and the wreck was reportedly
completely gone by January 2011.
While under investigation by the Gujarati
anti-terrorist unit for smuggling radioactive, hazardous, and toxic waste to
organized crime, the former Independence
was looted in May-June 2010 during a cyclone.
CHAPTER|5: CONCLUSION
- Outcome of Hypotheses
- Conclusion
Outcome of Hypotheses
An inspection was carried out by the committee
formed by Central Govt. which had presented its suggestions on the wreck. A
detailed inspection was carried out and hazardous substances were found on the
ship. There was no Environment Impact Assessment done by Central Government or
State Government nor Gujarat Maritime Board. The main focus was on economic
gains rather than environment concern, without following the provisions of
Ports Act, 1981 the ship was allowed. Moreover any steamship cannot sail more
than 20 years, which is the best prescribed time for proper functioning of any
steamship and was not same in this case.
The Gujarat Maritime Board is environmentally
least concerned which can be clearly derived from the present case. The basic
objective is economic gain (which is termed as ‘development’) for them. GMB
also conducts several Hazardous Waste Management seminars, which shows the
intention as to more Platinum II are on the way to the Graveyard. Moreover any
notification passed by GMB is subject to Judicial Review as it is included in
definition of ‘State’ and also violation of constitutional rights.
The basic meaning of prospective overruling is
to construe an earlier decision in a way so as to suit the present day needs,
but in such a way that it does not create a binding effect upon the parties to
the original case or other parties bound by the precedent. The use of this
doctrine overrules an earlier laid down precedent with effect limited to future
cases and all the events that occurred before it are bound by the old precedent
itself. In simpler terms it means that the court is laying down a new law for
the future.
There are 2 aspects to the doctrine of
prospective overruling.
The first aspect was laid down by Lord
Blackstone, according to this theory Judges don’t make the law; their job is to
define the law. They should however follow the doctrine of Stare Decisis. The
doctrine of Stare Decisis means “to stand by precedent and not to disturb the
settled point of law”; the logic behind this doctrine is that people should not
get confused as to what is legal and what is illegal.
The doctrine of prospective overruling
originated from the American judicial system. It was for the first time laid
down by Cardozo J. and Lerned Hand J. The doctrine aims at overruling a
precedent without causing a retrospective effect. The concept of prospective
overruling is now an integral part of legal systems world over.
The purpose of prospective declaration of law
by the Supreme Court is to avoid reopening of settled issues and to prevent
multiplicity of proceedings by implication, all contrary actions taken prior to
such declaration stand validated. The subordinate courts are bound to apply the
law to future cases only. Sometimes the Court itself may fix a date, decisions
taken before which would not be disturbed, while invalidating a law or over
ruling a decision. Thus the decisions taken by Supreme Court are best according
to time and cannot be Criticized unde Doctrine of Prospective Overruling.
Conclusion
“This US
ship is allowed, but this has opened the flood gates for some 300 obsolete
toxic US ships waiting to be
dumped in India
and that’s a pill which Alang would not be able to D-I-G-E-S-T ”
This is not the first time that a ship regarded
as toxic has been headed to Alang. Several hundreds of ageing vessels – many of
them rich in hazardous material – end up on Alang’s beach before being torn
apart by unskilled and ill-equipped laborers. The metal is then sold on as
scrap.
In 2006, two ships Le Clemenceau and Blue Lady,
which were heading to Alang for scrapping, ran into trouble when
environmentalists drew attention to their highly hazardous contents.
While Clemenceau was eventually recalled by the
French government, Blue Lady, which had close to 1,700 tons of hazardous
material – two-and-a-half times more than that in the Clemenceau – was
permitted by India’s Supreme Court to beach and be scrapped at Alang provided
strict guidelines were followed to ensure worker safety. Greenpeace maintains
that the Alang’s yards do not have the technology to safely dismantle these
contaminated ships.
MSC Arabia, a cargo built in 1972 has reached
in the Indian waters and is on its way to Alang. It is carrying the flag of Malta. Its IMO
no. is 7121671. Its last known port was Jebel Ali.
MT MAR (Chemical Tanker) Arrived at Alang
Anchorage on 07.05.2010, Purchased by plot No.9, LDT 9652 Charter Party Claim
is there, hence end buyer dropped the deal. Waiting for new buyer. (Agent
Natraj Shipping Agency)
MT Theressa-III (Chemical Tanker) Arrived at
Alang Anchorage on 14.06.2010, Purchased by Plot No.24-B, LDT 5665 (Agent Demo
Shipping Agency). Suspected of Aetomic waste on Board. GPCB yet to clear the
ship.
MT Theressa-VIII (Chemical Tanker) Arrived at
Alang on 19.06.2010, Purchased by Plot No.05, LTD 6329 (Agent Demo Shipping
Agency) Suspected of Atomic waste on Board. GPCB yet to clear the ship.
BIBLIOGRAPHY
Books Referred:
• Daniel
Bodansky, Oxford Handbook on International
Envrionment Law, Oxford
University Press (July
2006).
Websites Referred:
Articles Referred:
• Florent
Phelspy, “The Blue Lady Case And The International Issue Of Ship Dismantling”,
LEAD Journal (Law, Environment and Development Journal)
Source: Legalsutra. (Accessed on 30 September 2011)
