Dubious asbestos & PCBs laden ship under scanner

Note: US Toxic Ship SS Independence (aka SS Oceanic) owned by Star Cruise, Blue Lady owner left from San Francisco toward Singapore in breach of US and international laws. The violations occurred on 8th February, 2008. SS Independence contains large quantities of hazardous materials such as toxic polychlorinated biphenyls (PCBs) and lung-damaging asbestos, the export and import of which are prohibited under the laws of the United States and Singapore.

After looking into the reportedly-toxic ship formerly known as the S.S. Independence coming into Guam,a US territory 3700 miles southwest of Hawaii, US. Coast Guard Lieutenant Marcus Hirschberg says, it will be a few weeks before the ship, since renamed "The Oceanic", is expected to approach our island. Hirschberg says at this point it does not look like the vessel will be coming into Apra Harbor.

The vessel towing The Oceanic, the Pacific Hickory may come in for refueling. In that case, another tugboat would hold onto the oceanic 12 miles offshore. The lieutenant also told KUAM News, "The reason attention is being drawn to The Oceanic is not that it poses a risk to health and safety. Rather, the USEPA has identified a possible export violation. If there are PCBs on board due to the ship's age, then there are restrictions on export to foreign countries."

Ronna Sweeney, 27 February, 2008

SS Oceanic poses threat to health & environment

The former U.S.-flag liner SS Oceanic (formerly SS Independence) poses any toxic threat to Guam. The ship left San Francisco on February 8 under tow for scrapping in India. The move has not pleased the Basel Action Network, an environmental group concerned about the export of toxic ships and has also upset preservationists who would like to see the U.S. the National Historic Preservation Act used to prevent its being scrapped.

USEPA has concern about a "potential legal risk" of export violation under the U.S. Toxic Substances Control Act.

Alert for toxic ship

THE U.S. Coast Guard and the Guam Environmental Protection Agency are on alert for the possible arrival of the contaminated cruise liner, SS Independence, which is reportedly heading to Guam after being refused entry in Hawaii. “In order for the vessel to come to Guam, they have to send a request for entry. And if they were to request entry, they have to file a 96-hour notice of arrival. They still have four days to file the request,” said Lt. Marquez Hirschberg, spokesman for Coast Guard.

Hirschberg said Coast Guard officials on Guam have been in contact with Guam EPA and their counterparts in Hawaii to monitor the vessel’s location. SS Independence, which is believed to be loaded with toxic polychlorinated biphenyls or PCB and lung-damaging asbestos, is being pulled by the tug ship Pacific Hickory, on the way to India, where the 57-year-old cruises liner will be scrapped.

With the disabled vessel in tow, Pacific Hickory reportedly attempted to stop in Hawaii to refuel but both ships were turned away by Hawaii EPA and the Coast Guard because of the health risk posed by PCB and asbestos contamination. “We believe they are still in Hawaii,” Hirshberg said. “The Coast Guard has the authority to prevent them from entering Guam based on Guam EPA’s recommendation. We are keeping an eye on the situation and we have been in communication with the Coast Guard legal office in Washington D.C.”

Tammy Anderson, Guam EPA’s public information officer, said the agency is on the watch but no recommendation has been made so far. “Guam has not been officially notified (of the ship’s possible entry), so we can’t make any decision at this point,” Anderson said. Meanwhile, Sen. Ben Pangelinan, (D-Barrigada) wrote to Gov. Felix Camacho requesting that the government of Guam take an official stand and stop the possible entry of the SS Independence.

Pangelinan urged the governor to immediately direct all appropriate agencies to block the contaminated ship from entering Guam’s port and waters. “I respectfully request that you exercise all due caution on this matter that would have grave environmental consequences on the people of Guam,” Pangelinan said. “With Hawaii successfully rejecting the ship’s entry, I see no reason why Guam cannot do the same with the interest of our people's health and safety at hand.”

The international activist group called Save the Classic Liners has urged the U.S. Coast Guard and EPA to impound the SS Independence, warning that breaking it down in Asia would release toxic PCBs and asbestos. SS Independence was towed out of its berth on the San Francisco waterfront last week, after being mothballed for years.


By Mar-Vic Cagurangan
February 25, 2008

Source: www.mvariety.com/?module=displaystory&story_id=7314&format=html

Ship containing PCBs, asbestos may refuel on Guam

February 25, 2008

The disabled cruise liner the S.S. Independence, reported to be loaded with PCB and asbestos, may be making its way to Guam. KITV News out of Hawaii is reporting that the tugship Pacific Hickory is towing the vessel. Documentation obtained by KUAM says the vessel is on its way to Singapore to be scrapped, and that in order to continue on refueling may need to take place locally.

According to Hope Cristobol, former senator and Chamorro rights activist, the ship was denied entry into Hawaii by the Environmental Protection Agency because says it poses too much of a health risk. Lieutenant Marcus Hershberg with the U.S. Coast Guard says they are aware that the Independence will be passing near our island, but says no notice of arrival has been received just yet.

KUAM.com

Guam urged to refuse entry to toxic liner

A former Guam senator has expressed concern that a disabled cruise liner loaded with banned toxic substances will stop in Guam.

Marianas Variety reports the SS Independence, now called the Oceanic, is being towed by a tug boat, which needs to refuel before heading to India where the cruise liner will be scrapped.

The 57-year-old cruise liner is reportedly loaded with asbestos and polychlorinated biphenyls, both of which are banned substances because of their toxic threat.

The tug and the liner have already been refused entry in Hawaii.

Guam activist and former senator, Hope Cristobal, has asked the Guam Environmental Protection Agency to stop both ships from entering Guam.

She says the ship was refused entry into Hawaii by the local EPA because it posed a health risk.

She says if the ship is allowed near Guam, it will be very dangerous.

Radio Australia, Feb 25, 2008

Cruise ship likely headed to scrapyard

February 23, 2008

Question: What ever happened to the SS Independence?

Answer: The historic ocean liner is rumored to be heading to a scrapyard in Alang, India.

The SS Independence, nicknamed "Indy," sailed around the islands for 21 years for American Classic Voyages Co. A month after the terrorist attacks of September 2001, the company declared bankruptcy due to a significant drop in revenue.

Norwegian Cruise Line purchased the vessel two years later, but NCL sold the vessel through a broker to an unnamed buyer last summer, according to a spokeswoman. Ship historian Peter Knego of Moorpak, Calif., said NCL considered renovating the vessel for cruise service, but it was not cost-effective.

The vessel departed San Francisco on Feb. 8.

A San Francisco port manager, Leon Hall, declined to comment on the ship's destination, but Knego said it is believed to be headed to a scrapyard in India.

The vessel was renamed Oceanic last year. According to Knego, a ship is renamed when it is being prepared for disposal.

The Independence and its sister ship, the Constitution, were built in the early 1950s. In 1997 the Constitution sank on its way to the scrapyard.

Knego said both ocean liners had a classic look with terrace decks and steam turbines. The vessel, however, would not be considered fuel-efficient by today's standards.

In July 2001 the Independence received the 2000 Ship of the Year award by the Steamship Historical Society of America.

Knego, who sailed aboard the Independence twice, said, "Unfortunately, it's the end of the Indy. ... This is the very last ship of their kind."

The Independence is expected to reach the scrapyard by the end of March or mid-April.

This update was written by Star-Bulletin reporter Rosemarie Bernardo.

Ever wonder what happened to a person, event or issue that has been in the news? We'll find out for you if you e-mail us at cityeditors@starbulletin.com.

Star Bulletin

DEVELOPMENT OF ENVIRONMENTAL LAW

Rio Declaration also talks about prior knowledge in trans-boundary movements. However, a ship “Blue Lady” was allowed[13] without prior decontamination. The ship contains 1250 MT (approx.) asbestos waste, 10 MT (approx.) of PCB (Poly-chloro-biphenyl) plus 44,000 meters of cables and 1100 radio-active elements. This quantity is many times higher than the French ship Clemenceau which was recalled by the French Government. In justification, the Supreme Court has referred to the concept of “balance” under the principle of “proportionality”, a doctrine which is totally alien to the environmental matters.


DEVELOPMENT OF ENVIRONMENTAL LAW: A CRITICAL APPRAISAL
- Sanjay Parikh

It is necessary - before we discuss the development of Environmental Law by our Courts, in particular, the Supreme Court – that we have a brief look at the international developments on environment. Broadly, it started with Stockholm Declaration commonly known as “Declaration of the UN Conference on Human Environment, 1972” where it was asserted that both aspects of man’s environment, the natural and man made, are essential to his wellbeing and to the enjoyment of basic human rights – even the Right to Life itself. This Declaration had resulted in 42nd Amendment in our Constitution and the enactment of Environment Protection Act, 1986 and Air (Prevention, Control & Pollution) Act, 1981. The Stockholm Declaration was followed by the “Earth Summit” known as the Rio Declaration, 1992 which was based on the report “Our Common Future” (also known as “The Brundtland Report”) which finally culminated in the document “Caring for the Earth”. Nearly 240 Treaties/Declarations exist on protection of environment, among them Agenda 21 and Summit at Johannesburg on sustainable development in 2002 can be taken note of. But whether the ideas developed in these international instruments have made a real impact in preservation of environment at national level is required to be seen.

The development of environmental jurisprudence in our Courts can be broadly put into cases[1] where the environmental principles developed in International Conventions and Treaties, were sought to be incorporated in the Municipal Law on the basis that these principles are a part of customary international law. The Court also took them as an integral part of Article 21 of the Constitution which protects life. Thus, environment became a part of life itself. Right to environment is, therefore, accepted as a human right and also a fundamental constitutional right. By referring to Stockholm Declaration, 1972 and Rio Declaration, 1992, the Supreme Court stated the importance of Pollutor Pays Principle, Precautionary Principle, Inter-generational Equity Principle, Absolute Liability Principle, Public Trust Doctrine and Reversal of Burden of Proof in the important environmental cases. This was no doubt an era where the Supreme Court showed remarkable leadership in implementing the global environment concerns.

The second line of cases[2] were those where the Supreme Court took cognizance of non-implementation of Water (Prevention & Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981, Environment (Protection) Act, 1986, Coastal Regulation Zone notification, Hazardous Wastes Rules etc, and gave several directions to the authorities to comply with the law for protection of the environment. It said that “tolerating infringement of law is worse than not enacting the law at all.”

But on analysis of these judgements, we have to find as to what extent the environmental principles could be actually implemented and how effective was the procedure of monitoring adopted by the Supreme Court.

To begin with, let us have a look at the Pollutor-pays-principle and whether it was effectively implemented.

Though the Supreme Court accepted the Pollutor-pays-Principle and the absolute liability of a polluter in the given circumstances, but in none of the cases (with few exceptions) either the polluter could be compelled to make the payment and/or to restore the ecology in its original position. In the Oleum gas Leak case[3], the Supreme Court evolved the doctrine of absolute liability, clarifying the principle of strict liability which was developed in Ryland vs. Fletcher; it also developed the principle of claiming compensation under the writ jurisdiction by evolving the public law remedy. But ultimately, the victims of gas leak were left to the ordinary relief of filing suits for damages.

In the Bichuri case[4] regarding contamination of ground water, the Supreme Court, after analyzing all the provisions of law rightly found that compensation can be recovered under the provisions of Environment (Protection) Act. However, the assessment of compensation, its payment and the remedial measures have still not been complied with. In the case of S. Jagannathan[5] concerning destruction of coastal ecology by intensive and extensive shrimp farming, the Supreme Court had directed, closure/demolition of shrimp farms and payment of compensation on polluter pays principle as well as cost of remedial measures to be borne by the Industries. But after the judgement, firstly the Supreme Court itself stayed its own directions in review and thereafter, the Parliament has brought a Legislation over-ruling the directions given in the said judgement.

Therefore, neither any compensation has been paid to the farmers and the people who lost their livelihood and ground water nor the damage done to the environment has been remedied. In yet another case where fine was imposed by the Supreme Court on Kamal Nath[6] for affecting ecology of the river Beas, by applying the public trust doctrine, it was later clarified by the Court that no fine can be imposed under writ jurisdiction and it requires adjudication under the provisions of Environment (Protection) Act. One does not know whether the river ecology was restored by the violator in the said case. An attempt made to recover compensation for the loss caused to the environment in the case[7] of dumping of waste oil by various importers also failed.

The Supreme Court did not develop the jurisprudence of liability of the polluter and imposed only payment of incineration cost (actual cost) on the violators. It needs emphasis that all these imports were illegal, in violation of Basel Convention and our country had suffered the dumping of huge quantity of waste oil and its ultimate incineration, as directed by the Court, had seriously affected our environment. But the violators were not saddled with any liability, much less any deterrent one. The Court had distinguished the judgement in Deepak Nitrate Limited – 2004 (6) SCC 402, where it was observed that there should be actual damage to the environment in order to attract Pollutor-pays-principle and had rightly observed that the Pollutor-pays-principle “includes environmental costs as well as direct cost to people or property, it also covers cost incurred in avoiding pollution and not just to those related to remedying any damage. It will include full environmental cost and not just which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it”. But as mentioned above, no damages were imposed on the violators for illegally dumping waste oil in our country.

The Supreme Court has, therefore, failed to implement its own directions in protecting the environment in many cases; still no legal principle of liability has been developed to ensure implementation of polluter-pays-principle for recovering damages caused to the environment, to the people and for restoration of the ecology. The result is that those who cause damage to the environment are emboldened to continue with violations. They are also now using the argument of sustainable development in their support, which is unfortunately finding acceptance in the Courts.

Few words about monitoring. One view is that we should have followed the law laid down in Ratlam Municipal case – 1980 (4) SCC 162 to generate more awareness at the local and district levels and for effective implementation by the District Courts. The other view is that while exercising powers under Art. 32 and 226 of the Constitution, the statutory mechanism should have been enforced making the authorities responsible and accountable. A sound monitoring mechanism, which should be followed by the Courts in all environmental matters, is required to be evolved.

Let us now look at the Precautionary & the Sustainable Development Principles and their understanding and implementation by the Supreme Court. In several cases, the Court has referred to “carrying capacity” of the environment and that any exploitation of the natural resources should not exceed their carrying capacity or assimilative capacity. It is forgotten that the “carrying capacity principle” evolved in the Stockholm Declaration, 1972 was given up when it was realized that man has immense potential to irreversibly damage the environment and under the wrong notion that the nature has immense capacity to revive itself. This notion was, therefore, rightly substituted by the Precautionary Principle to put a check on the destroying activities of the human being, namely, warning them that it is safe to err on the side of caution. It is only in one judgement, i.e. M.V. Nayudu[8] that this aspect was explained by the Supreme Court. However, we find that in subsequent judgements till 2007[9], the Supreme Court is still talking about the carrying capacity and in that context applying the theory of irreversible damage.

One will be shocked to find that even where experts have found that a particular eco-system has been exploited/neglected in such a manner that it has lost its carrying capacity, still it is subjected to environmental appraisal for further exploitation under the cover of sustainable development, when the only constitutional obligation and human duty permissible in that situation is to work for its restoration and revival. Principles like ‘sustainable development’ and ‘precautionary approach’ have no application when we deal with the rich areas of natural resources, those which are center of origin, sources of water and its conservation, fragile eco-systems etc. They have to be preserved and protected for survival of mankind and for future generation.

In the Narmada case[10], the Supreme Court refused to apply precautionary principle on the big dams as if protection of natural resources and its ultimate cost for the present and future generation is not an integral part of development. The observation of the Court that the said principle will apply in cases where extent of damages are not known but not in the cases where they are known is, with respect, incorrect. Natural Resource, once destroyed cannot be rebuilt by mitigative measures or even be substituted. In Tehri Dam case[11] a highly seismic prone area, right in rare Himalayan ecology, was chosen notwithstanding precautionary principle. It was done with the full knowledge that any breach in the dam will cause havoc, submerging several cities in few hours. Justice Dharmadhikari, who gave a dissenting judgement, invoked the precautionary principle in support of the safety aspects of the Dam and had agreed with the experts who had suggested 3-D non-linear analysis of the dam, to be on the safer side. But the Government authorities had refused it on the ground of scientific uncertainty. The Majority accepted the Government’s view. If any calamity happens, who will be responsible?

The idea of the “need” in the context of sustainable development has not been fully and correctly understood. In the Bombay Dying & Manufacturing Co. Ltd.(supra), the dire need of the society has been given precedence over the inter-generational interests, by using the argument of balancing environment and development. The need aspect has undergone considerable debate among the social scientists and environmentalists world over. It cannot be taken as insatiable desire of an individual, a society or a nation, which is another form of greed, and are thus allowed to exhaust natural resources without applying the rule of caution. Unfortunately, under the cover of need, we are allowing reclamation of sea, estuaries, ponds, riverbeds & other natural resources and erroneously calling it a balancing exercise.

Let us have a quick view of the hazardous waste case. In the wake of non-implementation of Hazardous Waste Rules, 1989 for nearly two decades and dumping of huge quantities of toxic waste by the developed countries, a public interest action[12] was initiated in the Supreme Court. It was established that the States and Pollution Control Boards were either ignorant or grossly negligent in not taking any action against dumping by the indigenous recycling industries and the importers. A High Power Committee Report, chaired by Prof. M.G.K. Menon, which was constituted by the Supreme Court, pointed out serious lacunae in the legal frame work, negligence and connivance of implementing authorities. Based on that, in a significant judgment given by the Supreme Court in the year 2003 various directions were given to regulate the functioning of indigenous recycling industries as well as the waste importers by incorporating the provisions of Basel Convention which India had signed and ratified but not implemented. The Court also accepted transparency and public participation as parts of Art. 21. It had led to amendment in the HW Rules in 2003.

It was in this litigation that the court also considered dumping of hazardous waste in the process of ship breaking. One of the important directions given by Supreme Court was regarding “prior decontamination” of the ship by the exporting Country before it reaches the country of import. Prior decontamination is necessary because trans-boundary movement of hazardous substances is an activity, which harms the environment and further Basel convention puts a ban on movement of certain hazardous wastes.

Rio Declaration also talks about prior knowledge in trans-boundary movements. However, a ship “Blue Lady” was allowed[13] without prior decontamination. The ship contains 1250 MT (approx.) asbestos waste, 10 MT (approx.) of PCB (Poly-chloro-biphenyl) plus 44,000 meters of cables and 1100 radio-active elements. This quantity is many times higher than the French ship Clemenceau which was recalled by the French Government. In justification, the Supreme Court has referred to the concept of “balance” under the principle of “proportionality”, a doctrine which is totally alien to the environmental matters. While referring to the principle of proportionality, reliance is placed on the keynote address on “Global Constitutionalism” by Lord Goldsmith, Her Majesty’s Attorney General (UK) [Stanford Law Review Vol. 59 at P.1155]. This article deals with the problem of terrorism and in that context discusses balance theory between individual rights and protection of the public while keeping in view the non-derogable nature of some of the human rights.

The Supreme Court also referred to India’s economic growth above 9% after the era of globalization dawned and justified the ship-breaking on the ground that large section of population is below poverty and that problem of unemployment is endemic in India.

How these reasons can justify violation of necessity of prior decontamination of toxic substances and how dumping of these lethal wastes can be helpful in solving the problem of poverty and unemployment? Even if for the sake of argument, it is accepted that in ship-breaking huge quantity of steel is generated but can it be at the cost of accepting such conditions which even a country like Bangladesh had rejected.

To put it simply, can you allow dumping of any amount of hazardous waste provided you get some benefit out of it? As far as steel is concerned one can not definitely say that it is used in our country only. If the steel generated in the process is again imported then the only role India plays is: dumping of hazardous wastes, its disposal in the land-fills or by incineration and the dirty job of dismantling done at the cost of workers’ lives, their health in totally unprotected working conditions. Poverty is therefore, given as an excuse to permit acceptance of outside waste against human dignity, right to life and health.

If there was one principle which ought to have been applied, it was, that without prior decontamination as a safeguard to national environment under the precautionary principle, ship will not be allowed for breaking. Further, after 2005 judgement when the Monitoring Committee was made non-functional, the hazardous wastes dumping from developed countries again started. The other day, municipal waste sent by some foreign country was caught by the Kerela Pollution Control Board. This is only a tip of the iceberg. Tons and tons of plastic waste, municipal waste, cow dung, paper waste, waste oil, battery waste, electronic waste etc., etc, is being dumped into our country.

Recently, a study was conducted to analyze whether social and economic inequalities aggravate environmental degradation. James Boyce, who contributed a Paper on this aspect, revealed a shocking bias in hazardous waste disposal policy in the United States against low income areas with higher percentage of African American and other minority groups. The study shows that where social and economic inequalities exist, it leads to weaker environmental policies, which, in turn, results in greater environmental degradation. The conclusion drawn by the study is that inequalities in the distribution of power operate not only to the detriment of specific groups but also to the detriment of environmental quality as a whole.[14] It will be quite shocking to know that after a decade of efforts made in controlling and regulating the trade of hazardous waste disposal, the Ministry of Environment & Forests has now taken a U-turn and has come out with draft Rules to allow import of waste batteries, waste oil and other wastes, which are banned under the Basel Convention.

In another case[15] concerning mining in an area which is rich in bio-diversity, a source of water recharge and where tribals have been living for hundreds of years in symbiotic relationship with the nature, Supreme Court has permitted mining (by imposing certain conditions), drawing support from the principle of sustainable development. Again poverty has been given as an excuse. Similarly, the Supreme Court permitted construction of residential complex in a reserved forest area[16] ignoring the scientific proof of existence of a forest. Similarly, construction of a hotel[17], on wrong understanding of sustainable development, was allowed by the Supreme Court in an ecologically sensitive sand dune area.

Let us, therefore, not go by the words but the intent of it and whether the nature’s rights have been respected in letter and spirit.

These principles have otherwise lost their value because we have entered in a critical phase where nature and its essential principles, on which human life is sustained, have to be zealously safeguarded. No longer we can be allowed to be misled by the term “sustainable development”. It is same mindless development, least caring about the damage and harm to the natural resources and the future generation. It is nothing but another form of economic development where the indicators of growth are only economic factors like GDP. WTO has virtually dominated the entire area of International Law concerning environment and human rights. Everywhere, the focus is only on commercial and trade interests. In a recent ruling, the WTO[18] has brushed aside the defence of European countries against the trade of GMOs by observing that the said principle is neither customary international law nor a general principle of law.

These instances show a dangerous trend, namely, that the environmental principles are understood only superficially, without integrally connecting them with the nature’s laws. The natural resources build by nature in millions of years once destroyed can never be created by man. Scientific efforts and processes cannot generate water and the rich eco-systems. The economic development is assessed in terms of GDP but the cost of continuous destruction of natural resources is not counted. If a method is evolved to asses the economic costs, it will certainly out-weigh earnings in terms of economic gains. Natural Capital is fast becoming the limiting factor while human made capital is becoming abundant. (Herman E. Daly “From Empty-World Economics to Full-World Economics: A Historical Turning Point in Economic Development).

What is therefore the conclusion:

The need for preservation and protection of natural resources is often repeated; similarly the environmental principals namely, sustainable development, pre-cautionary principal and polluter pays principle are chanted endlessly. The creative interpretations, whether in courts or outside, tend to justify the development under the cover of need (which is an extension of greed only) thus completely diluting these principles and making them meaningless in terms of actual implementation. It then becomes only an intellectual activity and we fall in the trap of subterfuge of language. It is quite shocking that the argument of so-called development finds acceptance even when it is for patently wrong reasons and at the huge cost of environment. Thus private interests, which have merged their identity with larger idea of holistic development, are causing a serious imbalance in the society. The benefits of natural resources should be available to all but unfortunately they are being allowed to be exploited only by a few.
It is pitiable that the State is not only completely failing in discharge of its obligations under the established Public Trust Doctrine but is consciously exercising its powers to the detriment of these natural resources when they need revival. How this callous disregard, an act of culpable negligence and an environmental crime of the State can be accepted. The devastation of Yamuna bed, a flood plain, and raising of unscientific issues with an attitude of violating any law or norm and arm-twisting of those who care for sanity, to impose the real estate on the river bed is quite shocking. How can a State compromise after knowing fully well that the main source of ground water for drinking purposes is the river bed and if this source is sustained, you will be able to sustain the future needs of drinking water requirement of the people? How a ridge which is billions of years old can be allowed to be used for construction of buildings when the expert authorities recognise the place ecologically sensitive – a ridge, a forest and a rich source of ground water.

Is this kind of development permissible? What are State’s obligations as a trustee and what legal structure we need to evolve to protect the natural resources – for now and for the future? In what way people can protest if the State acts totally irresponsibly? If the State succumbs to narrow political considerations and vested interests? These are complex but important questions of immediate importance.

There is an urgent need for the Courts to understand these issues holistically, integrally with a vision. There is no conflict between environment and development. True development can never harm environment if it is realized that without nature and its resources life has no meaning. We need perhaps a simple principle, a simple law for complete protection of natural resources; integrated efforts for their revival and rejuvenation and their use conducive to the nature of these resources, and not the application of sustainable development principle as these resources can no longer bear the onslaught of exploitation; they are in trust with us for the future. If, we still ignore, be ready to lose them for ever. The choice is quite clear.
23.2.2008

[1] Vellore Citizen Welfare Forum 1996 (5) SCC 647
M.C. Mehta vs. UOI (Taj Mahal case) 1997 (2) SCC 353
A.P. Pollution Control Board vs. M.V. Nayadu 1999 (2) SCC 718
Indian Council of Enviro-legal Action (Bichuri case) 1996 (3) SCC 212
[2] Indian Council of Enviro-legal Action (CRZ Notification) 1996 (5) SCC 281
M.C. Mehta vs. UOI (Ganga Water) 1987 (4) SCC 463
RFSTE vs. UOI 2005 (10) SCC 510

[3] M.C. Mehta vs. UOI 1987 (1) SCC 95
[4] Supra
[5] S. Jagannathan vs. UOI 1997 (2) SCC 87
[6] M.C. Mehta vs. UOI (Kamal Nath) 1997 (1) SCC 388
[7] RFTSE vs. UOI 2005 (13) SCC 186
[8] Supra
[9] Essar Oil 2004 (2) SCC 392
Bombay Dying vs. Bombay Environ Group 2006 (3) SCC 434
Karnataka Industrial Area 2006 (6) SCC 371
[10] Narmada Bachao Andolan 2000 (10) SCC 664
[11] N.D. Jayal & Anr. vs. UOI 2004 (9) SCC 362
[12] RFSTE vs. UOI 2005 (10) SCC 510; 2005(13) SCC 186
[13] Orders dated 6.9.2007 & 11.9.2007 (RFTSE vs. UOI)
[14] Hindu dt. 6.11.2007 – Environment and the Poor – book review
[15] Order dated 23.11.2007 in M/s. Vedanta Alumina Ltd.
[16] Tata Housing & Development Corporation – 2003 (11) SCC 714
[17] Goa Foundation vs. Diksha Holding – 2001 (2) SCC 97
[18] EC – Biotech Dispute decided by WTO in Nov. 2006

Shipbreaking said to fund terrorism?

India is a growing market for secondary commodities like ferrous scrap and scrap metal. Ship-breaking industry is part of the scrap metal trade. India represents an emerging market for scrap materials. India imports a high percentage of the scrap material it requires, particularly in aluminum, copper and stainless steel. Many of the old ships bound for salvage and disposal are exported to the Indian subcontinent.

In South Asia, ship-breaking takes place in India, Pakistan and Bangladesh. The workers in this industry are the most vulnerable workforce in the world with high rate of chemical and asbestos exposure. In India, Alang ship-breaking yard is located in Bhavnagar, Gujarat. It is located 288 km northwest of Mumbai. 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 ship Breaking Yard in the world. There are 173 plots to carry out the ship-breaking activities. It provides around 25-30,000 jobs and generates steel totaling to millions of tons every year.It takes from 3 to 12 months to completely scrap a ship, depending on its size and complexity, with most of the work carried out by hand. In its first year of operation, 5 ships were scrapped and by 1997 had the capacity to break up to 300 per year, with up to 300 people working on one boat. The number of accidents and casualties of workers at the yard has attracted global attention.

Gujarat Maritime Board (GMB) as a regulator has been insincere in safeguarding the occupational health and environmental security. It has failed to ensure that all hazardous materials on board the ship are pre-cleaned in the country of export prior to delivery of the ship for dismantling. This amounts to violation of Basel Convention on the control of transboundary movements of hazardous wastes and their disposal. India is a party to the Basel Convention. It signed the Convention on 15th March, 1990, ratified it on 24th June, 1992, and acceded to the Convention on 22nd September, 1992. GMB has failed to invest Rs 500 crore, it has collected from the ship-breakers for the welfare of the workers.

GMB and Gujarat Pollution Control Board (GPCB) has been callous towards the adverse consequences for not only the environment but also for occupational safety and health of the workers. It pretends to be ignorant of the toxic affects to both the local surrounding, environment and society. The established local community relies on basic industries such as fishery and agriculture and is exposed to discharges and emissions to sea, ground and air. Indeed, lack of containment to prevent toxins from entering the food chain is a major concern.

In Pakistan, Gaddani Ship-breaking yard, is located in Gaddani, Lasbela District, Balochistan. It is located 50 km northwest of Karachi. The number of accidents and casualties at this yard is yet to attract global attention. Around 5,000 workers are earning their livelihood at Gaddani dockyard. There is lack of any arrangement for providing even first aid or medical help to the workers.

As of now as many as eight large and medium sized ships have been anchored in Gadani dockyard for breaking during the last five weeks. The country’s ship breaking industry is witnessing a new spell of growth as it is pacing up its productions of steel scraps with the arrival of eight new vessels since beginning of the year at Gaddani beach. The new docked ships include Japanese Shanti and Japanese Pink-1.

The waiver of import duties in Pakistan has encouraged ship breakers to enhance their production while the move of CARe system to advocate industry’s concerns have also boosted their confidence. Pakistan’s ship breaking industry has been facing tough competition with their rival India and Bangladesh on the back of rising prices of ship’s import in the world.Pakistan has advantage over India and Bangladesh as it is close to Dubai ports. Gadani Ship Breaking Industry is being promoted for which tariff and revenue rationalizations incentives have been offered to investors. Investors have held out assurance to start work soon to revive the industry by 2008.

In Bangladesh, shipbreaking yard is located in Chittagong, a highly polluted coastal belt of 20 km. The number of accidents and casualties at the yard is believed to be the highest in the region. In 1965, a 20,000 dead weight tonne (DWT) vessel was driven ashore by devastating tidal waves. It turned out to be the first ship scrapped on the Chittagong beach. Again, in 1970, another major cyclone drove a few ships ashore. These were also scrapped as it was impossible to salvage them en masse. Ships damaged in the 1971 war were also scrapped here. All this scrap fed re-rolling mills. “These events strengthened the idea of breaking ships to get raw materials for iron products and make business with scrap,” says Bishwajit Roy, a Chittagong-based occupational and environmental health expert, in his research on ‘Health problems among the workers in ship breaking industry’.

There are about 30 shipbreaking yards now spread over a 10-sq km area in Chittagong. “Shipbreaking, scrapping and scrap handling are done simultaneously. All the 70 companies are registered as commercial enterprises under the Companies Act, 1913. Only eight shipbreaking yards are registered as factories with the department of inspection for factories and establishment,” says Roy in his research. “Shipbreaking is done in open yards and is not scientifically or technically organised and the management is also primitive. Workers are not protected by sheds and are required to work under open sky round the year in very difficult conditions exposing them to various physical, chemical, biological, mechanical and ergonomical hazards.”

In his survey, Roy found that 94 per cent of the 216 workers surveyed suffered from health problems: musculo-skeletal disorder (87 per cent) topped the list followed by gastrointestinal tract disorders (81 per cent), eye problems (72 per cent), skin diseases (56 per cent), respiratory tract illnesses and different kinds of injuries.

Shipbreaking said to fund terrorism

ALANG, India 11 February – The shipbreaking industry in Alang in the state of Gujarat may pose a security threat to the country, an intelligence report leaked to the media says. The report suggests that the D-gang, a group led by Dawood Ibrahim and said to have close ties to Osama bin Laden, is involved in most of the deals going around in the shipbreaking business, the Times of India says on its website, citing the leaked naval intelligence report.

Furthermore, it says, crews on vessels that arrive for scrapping in Alang arrive in India may get ashore without scrutiny. This can lead to clandestine collection of local information and for dropping off or picking up agents.

The industry works via a number of overseas intermediaries. As an example, Blue Lady, the 76,049gt former cruise liner Norway, was 'officially' sold to a Liberian company for a mere $10 before being bought by an Indian company for scrapping at Alang.

"Cash buyers operate hand-in-glove with the end buyers and owners by under-invoicing a deal," the intelligence report is quoted as saying. "The unmentioned amount is transacted through the hawala [an informal, largely Islamic, financial system] route, making almost 40-50% of the metal trade illegal. Apparently, a large number of cash buyers are Pakistani nationals based in London and the UAE. Due to large profit margins, the Dawood group appears to have invested heavily in cash buyers, thus having a stake in most deals," the report warns.

Lloyd's Register - Fairplay web links Source: http://groups.google.com/group/saferec?hl=en

USEPA called on to Stop Illegal Departure of Toxic Ocean Liner in Hawaii

Historic SS Independence loaded with PCBs and asbestos to be scrapped

On February 22, 2008, a 682 foot ocean liner known as the SS Independence loaded with an estimated 210 tons of toxic polychlorinated biphenyls (PCBs) and 250 tons of deadly asbestos as part of its construction, will be towed into Hawaiian waters so that the ocean going tug Pacific Hickory, hauling it can refuel on its way to Asia.[1] The ship has become the latest test case in the international furor against the environmental and human rights abuses caused by shipbreaking practices and the rapid disappearance of our last classic ocean liners. SS Independence has been renamed a SS Oceanic.

According to the Basel Action Network (BAN) and Save the Classic
Liners Campaign, the export of the 1950 classic ship, recently owned
by Norwegian Cruise Lines (NCL), a subsidiary of Star Cruise Ltd and
mothballed in San Francisco Bay, is illegal. Its quiet departure from
San Francisco Bay for the stated destination of Singapore on 8
February should never have been allowed, because the US flagged ship
should have been declared as historically significant by the Maritime
Administration when it sold the vessel to NCL in 2003 and because the
export of the PCB laden ship is illegal under the Toxic Substances
Control Act (TSCA). The groups claim that if the ship is not
apprehended and held by US authorities in Hawaii it will evade the law
and will end up being scrapped on the infamous shipbreaking beaches of
India, Pakistan or Bangladesh where workers are subjected to deadly
occupational disease, explosions and crushing accidents and the
beaches are befouled with toxic PCBs and oils. EPA's Region 9
headquarters in San Francisco is currently seeing if they can obtain a
temporary restraining order to hold the ship pending sampling and
analysis for PCBs. According to BAN, there is no excuse for EPA not
to do so.

"This ship is a toxic timebomb for the poor laborers of South Asia,"
said Jim Puckett, coordinator of the Basel Action Network. "If EPA and
the Coast Guard do not act to detain this vessel and her tug as it
passes one last time through US waters, the liability and shame will
rest on our own government for failing to enforce our law."

In November of last year, BAN tipped off the EPA in Baltimore and was
able to halt the export of the M/V Sanctuary from the Port of Maryland
pending testing and remediation of toxic PCBs.[2] Prior to that , BAN
similarly tipped off San Francisco EPA to the imminent export of the
USS Crescent City (aka Artship) from Oakland for scrapping in Asia.[3]
In the present case, BAN has contracted with a maritime survey and
remediation expert to provide an estimate of the amount of PCBs,
asbestos and other hazardous substances on board.[1] According to
BAN, with this information in hand the government is now obliged to
act to prevent the illegal export.

According to the activist groups, the present case is not the first
time a ship that belonged to Norwegian Cruise Lines (NCL), flaunted
international waste trade rules. In 2005 NCL told the German
government that they were going to have the former SS Norway (aka Blue
Lady), cruise liner exported to Malaysia to be refurbished. Germany
was unable to halt the export as hazardous waste due to the claim of
continued use of the vessel. Had its export been reported as export
for scrapping, then the export would have been prohibited under the
European Union laws that implement the Basel Convention. However,
after the ship arrived in Malaysia, no repair work was done and NCL
instead later attempted to send it to Bangladesh for scrapping on the
beaches.[4] The Bangladesh government refused to accept it due to the
large quantities of asbestos onboard. Subsequently it was run onto
the beaches of Alang, India. Today, much to the dismay of
environmentalists and preservationists alike, the Blue Lady sits in
the sand, and has been stripped of its historical interiors, awaiting
Indian Supreme Court determinations as to whether it will be cut and
scrapped.

Meanwhile, preservation organizations say the rush to scrap vessels
due to the recent high prices of metals is causing the rapid
"extinction" of our last remaining classic liners. They are calling
on the federal government to exercise the National Historic
Preservation Act to save the the SS Independence, one of the last two
such remaining vessels [5] before its too late.

"This ship is a priceless historic monument that deserves to be
preserved as a museum or hotel for the enjoyment and awe of
generations to come," said Erik James of Save the Classic Liners
Campaign. "That should be her future, not one of death and
destruction on the beaches of India."

For more information contact:

Eric James, Save the Classic Liners Campaign: 1.617.755.8570 (cell),
ejames70@hotmail.com
Corey Abelove, Save the Classic Liners Campaign: 1.770.853.1413,
our_flagship@yahoo.com

Jim Puckett, Basel Action Network: 1.206.652.5555 (office),
1.206.354.0359 (cell),jpuckett@ban.org

Max Weintraub, EPA technical expert, Region 9: weintraub.max@epa.gov
1.415.947.4163

Allan Zabel, Legal Council, Region 9: 1.415.972.3902 (office),
zabel.allan@epa.gov

Lt. Paul Markland, Coast Guard Hawaii, 1.808.541.2105 (office)

[1]http://www.ban.org/Library/SS_Independence_Waste_Stream_Estimate.pdf,
conducted by ship remediation expert Mr. Werner F. Hoyt. Mr. Werner
Hoyt can be contacted at: 1.530.938.1253 (office), 1.650.291.5204
(cell), WernerHoyt@aol.com

[2] http://www.ban.org/ban_news/2007/071113_hospital_ship_questioned.html
http://www.ban.org/ban_news/2007/071115_ship_has_toxic_pcbs.html

[3] http://www.ban.org/ban_news/2004/040508_ww_II.html

[4]http://www.ban.org/Library/Star_Cruises_Deception_Report_Final.pdf
http://www.ban.org/ban_news/2006/060718_unlearned_lessons.html

[5] Only the SS Independence and the SS United States remains. The SS
United States also owned by NCL is currently berthed in Philadelphia.

Activists Fight To Stop 'Oceanic' Scrapping
Historic Ship One Of 2 American-Built Cruise Liners

POSTED: 6:36 pm HST February 20, 2008

HONOLULU -- A bit of drama played out on the high seas near Hawaii, involving a famous ship that sailed island waters for 20 years.

The SS Independence -- now called the Oceanic -- is being towed to Asia to be scrapped. But some activists are trying to save the ship if it stops here on its final journey.

The old SS Independence sailed interisland cruises for 20 years. In recent years, however, it has been mothballed near San Francisco. Now the ship is being towed across the Pacific to be scraped at a ship-breaking beach in India or Bangladesh.

A group called Save the Classic Liners wants the Coast Guard and EPA to impound the ship when the tugboat towing it stops to refuel in Hawaii, claiming breaking it down in Asia would release toxic PCBs and asbestos. They also said it is one of only two historic America flagged cruise ships.

The ship's owner said the tug will not stop in Hawaii and is headed to Guam.

Those who want to save the ship said it could be turned into a floating museum, like Falls of Clyde, or hotel or convention center.

Unless the EPA and Coast Guard stop it in Hawaiian waters, it will most likely be scrapped in Asia.

Source: KITV.com

Submission to 57th session of IMO's Marine Environment Protection Committee (MEPC)

Submission to the Marine Environment Protection Committee (MEPC) on draft International Convention for Safe and Environmentally Sound Recycling of Ships

RECYCLING OF SHIPS

Substitution, internalising costs, third party auditing and rejection of non-party trade needed to secure an effective Convention

Submitted by Greenpeace International and FOEI

Summary

Executive Summary

This document represents an appeal from civil society environmental and human rights organisations represented by the NGO Platform on Shipbreaking to the member states of the IMO to recognise that the current draft International Convention for Safe and Environmentally Sound Recycling of Ships lacks the mechanisms and incentives to seriously address the disastrous status quo that is ship recycling today. While the structure of the Convention is built upon a shaky foundation of Parties lacking self-interest to ratify or implement it, with minimal responsibility placed on ship builders and owners, it is nevertheless still possible within the current structure and in the time remaining to overcome this disadvantage. This can be accomplished by adding the following elements: Implementation of Substitution Principle, Ship Recycling Fund, 3rd Party Audits and Rejection of the non-Party to Party dealings. Without these elements the Convention will simply be too weak to succeed in changing an economically compelling motivation toward cost externalisation of risk and harm to some of the world’s poorest communities in developing countries. These essential elements are further described in this document.


Introduction

1 To date, while it was civil society that placed the global spotlight on the international shipbreaking crisis and created the demand for action, civil society’s suggestions with respect to the IMO remedy have been ignored by the IMO despite numerous efforts to promote substantive reform (MEPC 53/3/9, MEPC 54/3/5, MEPC 55/3/7). It would be a mistake in our view to continue to ignore the concerns of civil society as these concerns will remain long after the Convention is adopted and will not be silenced by its signing. It would also be a mistake to create a Convention which fails to create an “equivalent level of control” to that required by the 170 Parties of the Basel Convention if there is hope to establish but one coherent regime. And finally, it would be a mistake to create a new Convention that is incapable of resisting the significant current economic forces which have given rise to the present situation. We ask the Parties to recognise the fundamental weaknesses and loopholes as mentioned below, and to consider the elements proposed herein to address these flaws.

Basis of Weaknesses

2 The inherent weakness of the Convention even when confined to looking at its own terms and expectations, lies in the fact that the responsibility for its control mechanisms and implementation rests with entities that have little self-interest to undertake such controls. Thus where the language of the Convention is flexible one could expect minimal action will be taken by the Parties. Where language is stronger, it signals that non-ratification can be expected, or even worse, ratification followed by non-compliance. This concern is elaborated by looking at each of the types of Parties and actors:

3 Flag States: It is well known that many Flag State administrations are unwilling or unable to fulfil their responsibilities. This is especially the case with the so-called “flags of convenience” FOC states. The FOC phenomenon, has unfortunately created a system whereby states compete for ship registrations with policies that promise lower costs, by keeping taxes, fees, and regulatory burdens light. Even if the States responsible for the registries have ratified IMO conventions, they often lack the resources or the will to enforce them effectively. Indeed the entire marketplace for FOC open-registries, is in effect a bidding game for least accountability, least responsibility. Clearly this concern relates directly to the issue of Convention ratification as well as to compliance if ratification is assured. There is considerable concern that flag states will have little incentive to ratify the Convention particularly as the Convention currently allows ship recycling Parties to recycle non-Party ships.

4 Port States: With respect to some IMO regimes, port State controls can be used as a remedy to the problem with flag states described above. However, this model falters when there is little self-interest for the port state concerned. Why would a port state have an interest in determining whether or not a ship carries an inventory of structural hazardous materials as this requirement will not impact the local port environment now or in future? Further, while the inventory (the sole concern of port states under the Convention) is a useful instrument for proper ship recycling planning, it hardly guarantees and by itself does little to ensure environmentally sound recycling – the goal of the ship recycling Convention.

5 Ship Recycling States: Likewise, some of the current major ship recycling states have demonstrated a lack of willingness to improve conditions and standards for ship recycling. The unacceptable conditions of the South Asian beaches were discovered by the international community as early as 1997. It has thus been more than ten years since international pressure was brought to bear, yet conditions in these countries have improved only superficially. Similar to flag states, the ship recycling industry has become competitive on the basis of least cost recycling. Thus there will be reluctance to improve conditions if costs are involved. Shipbreakers exercise considerable influence politically and economically in Ship Recycling States and thus it is likely that improvements will come only in a very slow and often superficial way, if at all. Meanwhile the immediate victims of shipbreaking – the workers and nearby communities are politically and economically disenfranchised peoples and exercise very little political influence at the national level. The result may be that ratifications by Ship Recycling States will not be politically motivae to seek ratification or worse, will be ratified followed by institutionalized non-compliance.

6 Shipowners: On addition to the above concerns regarding potential parties, is the reality that in the life cycle of many ships, there is a succession of ownership from well resourced, larger more legitimate companies to smaller, less-resourced owners that have historically operated under the “cheapskate policy” that seek to keep costs to a bear minimum and avoid regulations if possible. It is this group of owners, disinclined to take the high road of proper compliance, that are the ones that will hold the final responsibility for the majority of the world fleet when it reaches end-of-life and is readied for breaking. It is difficult to understand how these owners will be persuaded to utilise Parties to flag their vessels, nor Parties to recycle their ships as long as greater profits can be made from doing otherwise. There is the very real concern that even a ship that flies under the flag of a Party will re-flag prior to recycling.

7 Shipbuilder / Manufacturer Responsibility: Although the Convention was originally conceived to apply to the entire life cycle of a ship, its current version leaves this forgotten and does not include the competence and responsibility in the shipbuilding phase to substitute alternative materials to ensure that ship recycling over time becomes much less hazardous – the ultimate solution to much of the global crisis.

Proposals

8 It is on this bed of shifty sand that the draft Convention has been built. Without shipbuilders motivated to build hazard-free ships, without owners being held responsible for assuming costs for proper recycling at end-of-life, and without inherent or built-in motivation of self-interest for Parties to ratify and vigorously regulate, the Convention relies then on good will alone to become an accepted, utilised and effective instrument. While there are numerous certificates and authorisations required, there is little incentive or ability to critically scrutinise or deny such authorisations. The concern then is that the Convention will become a "rubber stamping convention", with certificates being signed, sealed and ships delivered without any consideration of the veracity and rigor of such declarations. What is clearly and urgently needed then are means to direct true responsibility to shipbuilders, owners and to inject self-interest for Parties, either through carrots or sticks, into the picture. We understand that some of these ideas have been discussed previously, however there should be no procedural rationale for not reopening ideas that receive substantial support now that we can all reflect on where we have arrived in relation to the global need. It is never too late to ensure that the Convention ready for signing in Hong Kong is not the best possible instrument achievable. What follows are our strong recommendations at this time.

Substitution Principle

9 While the preamble of the draft Convention notes that the substitution principle is to be promoted, the Convention fails to do that. The substitution principle is meant to be applied at the level of the supply chain with a constant and critical examination by manufacturers of their hazardous material use. It is not adequately promoted simply by a top-down policy by authorities, focused primarily on legally controlled substances. The Platform strongly proposes the following language for Chapter II, Part A.

Regulation 5bis – Implementation of Substitution Principle

1 Each Party shall ensure that its enterprises involved in shipbuilding and the manufacture of parts for ships, must evaluate the hazardous materials they use and whether they can replace hazardous materials with less hazardous alternatives. The alternatives must be assessed in the same way as the materials that are to be replaced. If less hazardous alternatives do exist, the enterprise shall use them provided that this does not cause unreasonable cost or inconvenience, or other negative impacts. Enterprises must forward such evaluations of hazardous material use and substitution to their competent authority on an annual basis.

2 Each Party shall review the evaluations received from enterprises and other sources, and make recommendations for amending Appendices 1 and 2 if the alternatives are considered preferable and economically and practically viable.

Ship Recycling Fund

10 A fundamental weakness in the draft Convention lies in the fact that the Convention has sought to address an issue of global pollution without seeking to fully internalise costs and instil producer responsibility based on the Polluter Pays Principle. That is to say, the beneficiaries of global shipping, or a single ship owner does not have to account for the true costs and liabilities of such a ship at end-of-life but rather can continue to pass those costs and hazards to locations where such hazards are not managed in an optimal way. The notion that cost internalisation is to be achieved simply by the higher prices being charged by authorised recyclers is wishful thinking and will nevertheless only be a partial internalization at best. The fact that the Convention continues to allow a disproportionate quantity of harm to be passed to developing countries equates to hidden costs not being assumed by the waste generator. For example, the context of developing countries, regardless of the level of technology at the shipbreaking yard, including less resources to ensure proper maintenance and enforcement of rules governing a technology, worker rights and access to training and medical attention, rights to tort law, downstream waste management including operations in rolling mills etc. are all indicative of cost externalisation.

11 By exacting financial responsibility on beneficial owners, the possibility of a ship recycling fund that could be utilised for conversion from beach operations to fully contained and accessible operations, site remediation, pre-cleaning, worker compensation etc. becomes a very appealing instrument. This not only goes a long way toward improving human health and the environment but provides an incentive for recycling states and their stakeholders to desire ratification.

12 Taking into the account the limited time available, a way forward could be to agree to develop the framework of a mechanism or protocol intended to create a fund and cost internalization system for safe and environmentally sound ship recycling. The mechanism could then further be developed by a relevant body of the IMO in the interim period between the adoption of the Convention and its entry into force.

Third Party Audits

13 Given the context of this Convention described earlier, it is vital to strengthen the known lack of self-interest for compliance. This can be done by virtue of third party, annual, mandatory audits that report non-compliance after repeated violation. Article 13bis requires the establishment of an auditing system to ensure full and uniform implementation of the Convention. However the Article fails to insist on independent third party audits, only covers administrative procedures and functions, and further remains confidential even for non-compliance.

14 A global level-playing field and true objectivity in terms of safety, environmental and employment standards will only be achieved if the auditing scheme is made mandatory and administered by third parties.

15 The full audit of both flag and recycling states is necessary and should include on-the-ground inspections of recycling facilities in addition to administrative enforcement mechanisms and procedures. An independent auditing team needs to be given the power of entry to the yards in order to evaluate whether the inspected yard is compliant with Regulations 19 – 23 of the Convention, taking into consideration the guidelines of the Convention. Likewise the auditors need access to the government documentation of administrative procedures for both Flag and Recycling states.

16 As it stands today the result of the audit is confidential even when there is repeated non-compliance. To increase transparency and effectiveness, should there be a finding of non-compliance the Party should have 6 months to correct the situation followed by a non-compliance audit. If the problem is still not corrected after 6 months, the non-compliance should be made public and should trigger the implementation procedure (MEPC 56/3, MEPC-ISRWG 3/2/10).

Reject Party to non-Party Ship Recycling

17 A proposal by the United States to allow bilateral, multilateral or regional agreements to allow Parties to deal with non-Parties, must be rejected in all forms including the Norwegian proposal to allow that possibility even without a special state-to-state agreement. These options will create a multiplicity of possible loopholes and even further disincentive for countries to ratify or comply with the Convention.

18 The proposed language was drawn from the Basel Convention where it was likewise placed into that treaty by the United States. It is worth noting that after 18 years the US has still not ratified the Basel Convention but has entered into bilateral and multilateral agreements. Meanwhile the US is as a non-Party exporting wastes to countries for which such imports are illegal as Parties, creating serious problems in terms of global waste traffic control.

19 Further, it must be realised that a non-Party Recyling State to the IMO Convention will still be obliged to fulfil its Basel obligations as Basel will, even if it accepts the IMO Convention as a legitimate multilateral agreement, under Article 11 of that Convention, continue to cover all situations not legally substituted by the new Convention. This will create a confusing combination of dual regimes even within one ship recycling trade deal.

20 To avoid such IMO/Basel mixed regime confusion and those situations where numerous flag state Parties sign an agreement with a single substandard non-Party state and have such an agreement endorsed by the draft ship recycling Convention, the idea of allowing non-Parties should be rejected. The only possible exception would be to make such a possibility expire after a period of 3-5 years as supported by a substantial number of Parties at ISRWG-3. However the implementation regime for bringing countries rapidly into compliance is a far better solution to the issue of lacking ship recycling capacity in compliance with the Convention in the initial years of its entering into force.

Action requested of the Working Group

21 MEPC is invited to consider the proposals made in this document and decide as appropriate.

Oceanic (Indpendence) on a mysterious voyage

SS Independence renamed SS Oceanic was sold by Norwegian Cruise Line(NCL), the ship's last owner in 2007. NCL has refused this week to say who the new owner is.

The Independence measured 683 feet in length and weighed 26,000 tons. It was capable of cruising at 26 knots. It 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 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."

Oceanic is the last US built ocean liner to sail under the American flag. She is a sister ship to SS Constitution, which sank while under tow to be scrapped in 1997.

Following the 2001 bankruptcy of American Global Line, the owners of the American Hawaii Line, SS Independence became the property of the US Maritime Administration and sailed from Honolulu to San Francisco, arriving on November 8, 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 Jones 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.)

Mid 2006, Independence was renamed Oceanic, amid speculation she may be scrapped. In July 2007, Norwegian Cruise Line announced that the Oceanic had been sold with later reports claiming the ship had been purchased by an American company.

The ship as of now had been sold to California Manufacturing Corp, and is currently at Pier 70 awaiting removal and towed to India to be scrapped.

SS Independence was an ocean liner built in 1951 by Bethlehem Steel Corporation, Quincy, Massachusetts, USA for American Export Lines. In 1959 she was rebuilt as a cruise ship. Between 1974 and 1982 she sailed as SS Oceanic Independence, after which she reverted to her original name. Since 2006 the ship has been named SS Oceanic She is currently laid up in Pier 70 at San Francisco and owned by California Manufacturing Corp.

San Francisco Chronicle on February 9, 2008 reported that the historic ocean liner Independence, the last liner built in the United States to sail under the American flag, was towed out of its berth on the San Francisco waterfront 8th February headed for an unknown future.

It left the dock quietly and slowly in a thick fog, like a wraith, like a ghost out of the past.

The Independence was a famous ship in its day, but that was long ago. The liner made its maiden voyage from New York on a cruise to the Mediterranean 57 years ago this month.

The old ship sailed under a new name: It has been called the Oceanic since summer.

Its voyage is also a bit of a mystery. Norwegian Cruise Line, the ship's last owner, sold it last year but refused this week to say who the new owner is.

There was even a minor mystery about its destination. Earlier this week, Leon Hall, of Inchcape Shipping Services, an agent representing the ship, said the final port of call "had not been decided yet." On Friday, however, the destination was listed as Singapore.

There is a lot of speculation in maritime circles that the real destination is a scrap yard in India or Bangladesh. There is not much of a future for a 57-year-old steamship that has not sailed under its own power in seven years.

"She is one of the great ships," said William Miller, an expert on ocean liners who wrote a book about the Independence. "But she has had her day, absolutely. I would bet you 50 cents she will be sold for scrap."

Admirers of old ships have been circulating rumors and reports on the Internet about the fate of the Independence.

Some, like Eric James, a ship buff from Boston, say the ship is full of toxic material like asbestos and is being taken out of the United States illegally. They say it should be preserved as a memorial to U.S. passenger ships. But there is no formal move to preserve the ship, and once it sailed out the Golden Gate, it was probably too late.

If the Independence is scrapped, it will be a sad end for a ship that was one of the prides of the U.S. flag merchant marine. The Independence was built in Quincy, Mass., by Bethlehem Steel and launched in 1950. The Independence and its sister ship, the Constitution, cost $50 million. Each of the ships could carry 1,000 passengers - 295 in first class - and could make 23 knots.

At first, they sailed from New York to Genoa, Italy, for American Export Lines on a southerly route across the Atlantic passengers called "The Sun Lane." It was a favorite of movie stars and important people.

Former President Harry Truman and his wife sailed on the Independence at least once. But jet planes killed the transatlantic liners, and in the 1960s, the two ships were sold.

The Independence was tricked out like a 1968 hooker with a gaudy pop-art paint job - a pink sunburst rose out of the side of the ship from a pair of huge seductive-looking eyes painted just above the waterline. The theme was Go-Go cruises.

That flopped, and the ship was laid up, sold a couple of times, and finally, in 1980, the Independence began sailing around the Hawaiian Islands.

The ship sailed every Saturday for 21 years on weeklong Hawaiian cruises under the U.S. flag. For a while, the Constitution joined the Independence in Hawaii but it was withdrawn and sank on its way to the scrap yard in 1996.

The Independence carried on alone. It was a good life in Hawaii, and a popular service. As late as 2000, the Independence received the Ship of the Year award from the Steamship Historical Society of America.

But the parent company of American Hawaiian Cruises went bankrupt when tourism dropped after the 2001 terrorist attacks. The ship completed its final voyage and sailed from Honolulu, arriving in San Francisco on Nov. 8, 2001. It was the last voyage under its own power.

The ship kicked around the bay and even spent some time in the mothball fleet near Benicia. Finally, in 2004, it was laid up at Pier 70 not far from the baseball park.

Rumors flew: It was going back to sea, it was going to be a floating hotel in New Orleans, or maybe in Dubai. But nothing happened. The Independence just sat, a bit of a landmark. Not every waterfront has an old white ocean liner with two funnels as a backdrop for the edge of the bay.

"I'm going to miss it. It's a good-looking boat," said Capt. Joshua Pryor, who operates the charter boat Ruby out of a pier next to the Ramp restaurant.

Andrew Wong, who was working on the yacht Rampage at the next dock, said the Independence reminded him of home. "I used to see it when I was a kid in Hawaii," he said.

About 10 a.m. Friday, bar pilot Tom Miller, who also handled the Queen Mary 2 when it visited San Francisco last year, slowly guided the old ship out of its berth. He used two tugs - the Delta Deanna and the Delta Linda, to pull the ship out, then turned it so it was facing toward the central bay. He positioned the ship so it could be towed away by the oceangoing tug Pacific Hickory.

The tule fog lay on the bay as thick as mushroom soup, and the Independence kept appearing and disappearing. About 11:30 a.m., the old ship, its sides streaked with rust, the flowers painted around the funnels faded with age and neglect, slowly disappeared into the mist.

Ship owners liability escapes IMO Chief's attention

IMO callous towards Alang's enviro-Occupational health concerns

IMO’s new recycling norms will include regulations for the design, construction, operation and preparation (for breaking) of ships

Mumbai: India’s ship-breaking yard at Alang in Gujarat, Asia’s largest, will not have to make any major changes to comply with the proposed ship recycling regulations that are expected to be finalized in 2009, the top official of the International Maritime Organization (IMO) said in an interview.

“The new regime governing ship recycling in India, as recently decreed by the country’s Supreme Court, is remarkably similar to the requirements of the draft text of the new IMO Convention,” said Efthimios E. Mitropoulos, secretary general of IMO. The Supreme Court’s order says that no ship can be beached at Alang unless it is certified “safe” by the concerned authority. Mint reported on 25 January that 53 ships had beached there in violation of this order that was passed in September 2007.

However, the similarity between what India’s apex court ordered and IMO wants “would suggest that there would be no major impediment to India ratifying the new treaty nor does there appear to be any major requirements for the recycling yards in excess of those laid down by the decision of the Supreme Court,” Mitropoulos said in an interview during a visit to Mumbai on Wednesday. “As a result, I believe that India will not have to go a long way to adjust its own legislation to the one that will emerge as a result of the efforts of IMO,” he added.

IMO, Mitropoulos said, was working hard on finalizing the International Convention for the safe and environmentally sound recycling of ships. “We plan to hold a conference in Hong Kong next year,” he said. He added that it was likely that IMO would eventually have an international instrument to regulate the recycling of ships on a worldwide basis.

IMO’s new recycling norms will include regulations for the design, construction, operation and preparation (for breaking) of ships.

This will facilitate safe and environmentally sound recycling, without comprising the safety of ship-breakers or their efficiency. Mitropoulos said the most environment-friendly and sustainable thing to do at the end of a ship’s lifetime is to recycle it.

“Given the right market conditions and a degree of ingenuity, almost everything that goes into the construction of a ship can be reused. Substantial industries have developed not just to dismantle time-expired vessels but also to rework the steel and sell the equipment and furnishings,” Mitropoulos added. However, while the principle of recycling was sound, the working practices and environmental standards in the recycling facilities often “left much to be desired,” he said.

“There is a clear dichotomy within an industry that can, on the one hand, provide a vital boost to local and national economies, yet which, on the other (hand), can produce dirty and dangerous workplaces that are a threat both to the environment and to the labour forces that earn their living in them,” Mitropoulos added.

In what is an unregulated industry in many parts of the world, there is clearly a tendency for those who insist on higher standards to lose out—commercially speaking—to those who are less stringent.

India’s own ship repair facilities have seemingly fallen victim to such a trend, as attempts to introduce higher health, safety and environmental standards have resulted in a downturn at some of the leading facilities and a migration of business elsewhere, he said.

“The new instrument would be one which would serve the needs of the industry, the seafarers and those working in the ship-recycling industry and serve the needs of those in the Basel Convention on the transboundary movement of toxic substances,” said the IMO secretary general.

P. Manoj
Feb 8 2008
Mint

'Dead ships' a security threat too?

D-Company Hand in Most Ship-Breaking Deals in Alang, May Be Route To Land Contraband: Intelligence Report

NEW DELHI: The 'dead ships' coming to India under flags of convenience are not only an environmental threat but also pose a threat to India's maritime security. A confidential report of the naval intelligence has pointed out that the D-gang is involved in most of the deals going around in the shipbreaking business.

TOI had earlier reported on shipowners in OECD countries using small countries like Liberia and Tuvalu to circumvent international laws that prevent them from sending ships loaded with dangerous chemicals for dismantling to developing countries, such as India. The intelligence report has raised the issue of security threat arising from unregulated shipbreaking in India.

"The high stakes of profit margin, cheap labour, corrupt practices and a large floating population have made labour settlement at Alang (the biggest Asian shipbreaking yard, based in Gujarat) an ideal breeding ground for mafia and anti-national elements to indulge in nefarious activities almost unhindered," the report mentions.

TOI had reported on the controversial 'Blue Lady' aka 'S S Norway', the 2,000-seater luxury liner that was 'officially' sold to a Liberian company for a mere $10 before being bought by an Indian company for scrapping at Alang. "Cash buyers operate hand in glove with the end buyers and owners by under-invoicing a deal. The unmentioned amount is transacted through the hawala route making almost 40-50% metal trade illegal," the report adds.

With scrap steel prices shooting through the roof, the shipbreaking industry has become a small but important supplier of broken down steel and iron from the dismantled ships. "Apparently, a large number of cash buyers are Pakistani nationals based in London and the UAE. Due to large profit margins, the Dawood group appears to have invested heavily in cash buyers thus having a stake in most deals," the report warns.

Indian Naval Intelligence has also warned that the involvement of the D-gang and Pakistani nationals creates a distinct possibility that the shipbreaking industry has become a route for landing contraband and explosives.

The crew on board the dead ships as well as the escorting vessels (the dead ships have to be towed at times by another) have come under suspicion as well. There remains a possibility of the crew escaping scrutiny while landing and leaving Indian waters as well as during their stay in India. This, the security agency has pointed out, "can lead to clandestine collection of data, survey of seabed and coastal area, weather and meteorological data and for dropping and picking agents".

At present, 53 such 'dead ships' are beached at Alang in contravention of Supreme Court orders. The intelligence report mentions that the regulations allow such ships innocent passage through the entire stretch of Indian waters unscrutinised by the security agencies.

Interestingly, the naval report was submitted as part of a case in the SC on the environmental hazards of unregulated shipbreaking. The environment and forests ministry had gone on record to say that no intelligence agency had warned it of such threats specifically.

7 Feb 2008
Nitin Sethi

India dumping ground for toxic waste

NEW DELHI: On the face of it, India is getting hazardous chemical-loaded ships for dismantling from obscure countries such as Comoros, a small island nation in Indian Ocean. But scratch the surface and it appears that these small countries are a front for rich nations to send their dirty cargo ships to India.

The poor countries come handy for countries like Germany and Greece to circumvent international laws. The catch being that international laws prevent 'the rich' from shipping their hazardous waste directly to India. 'The poor' are not barred from dealing in this lucrative international scrap trade with another 'poor country'.

On record, India has got ships from countries like Bermuda, Panama and even land-locked Mongolia to dismantle at Asia's biggest ship breaking yard, Alang.

The latest in the list is the "Al Arabia" alias "Beni Ansar" alias "Aquaba Express" that beached at India in October 2007 despite warnings from the UN Environmental Programme that the ship was being illegally taken to India.

The ship came carrying the flag of the obscure Comoros Island. "Al Arabia" is just one example of the modus operandi the rich OECD countries use to circumvent the international Basel Convention and their own strict environmental laws.
The convention bans any movement of hazardous waste from the developed countries to developing countries without prior consent.

Ship owners from rich countries instead find the convenient route out by buying a 'flag of convenience' for their discarded ship by registering them in countries like Liberia, St Vincent, Grena-dines, landlocked Mongolia and Tuvalu, which make a quick buck in return. The ships then sail off to the breaking yards in countries like India.

Even the radioactive material-carrying "Blue Lady" alias "SS Norway" was sold to an Indian company through a company based in Mon