• MEPA Chair alleges gaps in communication with AG
• AG issues final notice to insurer for $ 6.4 b for damages
• MEPA blames AG and foreign experts for lack of guidance

The Attorney General’s (AG) Department is planning to send final notices to the insurer of the controversial MV X-Press Pearl vessel, demanding approximately $ 6.4 billion as environmental damages caused to the marine environment when the ship caught fire and sank off Colombo on 20 May 2021, The Sunday Morning learns.

This, amidst concerns that Sri Lanka is on the verge of missing out on the opportunity to effectively seek compensation for the country’s largest marine ecological disaster, which was caused following the Singaporean-flagged MV X-Press Pearl vessel incident in 2021.  

It is reliably learnt that the AG’s Department is of the view that legal action regarding the MV X-Press Pearl incident should be filed in Singapore, if the ship’s insurer fails to come to an agreement before the end of the prescriptive period. 

It is learnt that the AG’s Department had informed of this at a recent meeting held with Justice Minister Dr. Wijeyadasa Rajapakshe together with the officials of the Marine Environment Protection Authority (MEPA).

Nevertheless, the AG’s opinion on jurisdiction is the opposite of what is stated by the MEPA officials, it is learnt. 

The team of legal experts hired by MEPA had opined that the legal action should be instituted in Sri Lanka, highlighting that the existing legal system and the laws in Sri Lanka are conducive for such action within Sri Lanka. It is learnt that a group of environmentalists are of the same view as MEPA on jurisdiction.

When contacted by The Sunday Morning, MEPA Chairman Asela Rekawa said that at a meeting held on Thursday (6), attended by MEPA officials and the Minister of Justice, the AG’s opinion on jurisdiction had been discussed, with the AG and his team being of the view that legal action should be filed in Singapore.

“The MEPA lawyers were arguing that the matter should be filed in Sri Lanka. They said we have a proper line of jurisdiction and that the Sri Lankan court structure was very conducive. However, the AG opined it would be easy to get the other party to court if we go to Singapore. He was also confident that they would be successful in Singapore,” he said, adding that when the AG, with the concurrence of the Cabinet, decides to file a case in Singapore, MEPA had to stick to that decision.  

“There is very little we can do other than to say that in our view it is better to file in Sri Lanka. Now the Cabinet has given a decision and we have to stick to that. We have to support the AG and see a successful case in Singapore,” Rekawa explained.

There had been gaps in communication between MEPA officials and AG’s Department officials regarding the disaster claim, Rekawa observed. 

“MEPA has got expert opinions from three lawyers – Ronald Perera, PC, Chandaka Jayasundara, PC, and Dr. Malika Gunasekera. We have also got a comprehensive report on the jurisdiction where this matter should be initiated. These things were decided by the Cabinet before I took office. Initially, the Cabinet decided that an Australian law firm would be used to assist the AG. Subsequently, the AG had gone to the Cabinet and got a direction that the matter should be filed in Singapore,” Rekawa explained.

When asked about the decision to use the Singaporean jurisdiction and why a meeting had not been scheduled until Thursday (6), the MEPA Chairman said: “We did not receive proper communication from the AG on why we are going to Singapore and the legal process was not clear to us; that was why we called for another report. We wanted to keep our records clear on the jurisdiction. That report was presented to the Justice Minister on Thursday.”

The MEPA Chairman stressed that they had raised the issue of sending demand notices to the ship’s insurer before filing legal action in Singapore, to which the AG’s Department had agreed.

“Whatever the claim, you have to be logical and negotiate it before we go to court. We were also told that there should be a clear intimation to the other party about our expected claim. The AG agreed that it should be done and agreed to send a demand notice to the other company, substantiated with documents before filing action,” Rekawa said.  

When asked about the total amount for which action would be instituted, he said that the expert committee had ascertained the total loss at $ 6.4 billion only for environmental damage.

When asked whether Sri Lanka had research-based evidence to back the claim, the MEPA Chairman stressed that Sri Lanka was nearing the prescriptive period and this was not the right time to say there was no proper evidence or that the assessment report had errors.

“When I was appointed as Chairman, they had come to the tail end of the case; now they are nearing the prescriptive period and we are looking at the damage assessment report. At the meeting I asked why proper guidance was not given. The AG’s Department should have guided them from day one with the help of an Australian law firm. The analysis report is the base of this case and after one year and eight months we can’t say there are issues. I told them to forget what has happened and tell me if there are issues. If so, I have 50 or 60 days to rectify them,” he added.

Australian law firm Sparke Helmore Lawyers is providing legal guidance to Sri Lanka on assessing the environment damage.

Sri Lanka has so far received a total of $ 7.85 million from the ship’s insurer in three tranches. In July 2021, the country received the first payment of $ 3.6 million and another $ 1.75 million in January this year. It then received $ 2.5 million this month.

Authorities claim that the total received so far is very low compared to the interim damage claim of $ 40 million sought June 2021.

The MV X-Press Pearl was carrying 1,486 containers when it caught fire off Colombo on 20 May 2021.

Eighty-one of the containers were labelled hazardous and the cargo included 25 MT of nitric acid. The ship was also carrying 400 containers of nurdles.

Centre for Environment Justice (CEJ) Executive Director Hemantha Withanage stressed that since the country had two opinions on jurisdiction, the Government should seek an opinion from a third party on where the case should be instituted.

He also expressed concern that the numerous irregularities in the process could affect the country’s chances of receiving compensation.