Sylvia Earle Demands Japanese Shipowner Remove Sunk Wakashio Wreck From Indian Ocean Floor

Legendary Ocean Explorer, Dr Sylvia Earle, has called on the shipowners of the Wakashio to ‘pick up their ship.’

Speaking on an Ocean Elders Webinar last week about the Wakashio oil spill and deliberate scuttling of the forward section of the boat in the Indian Ocean around Mauritius, she expressed outrage at the incident.

In a follow-up interview with Forbes, Dr Earle said, “The ocean is not a dumping ground.  It is quite likely where life originated from. While we can forgive previous generations for not fully recognizing the importance of a clean ocean for life on this planet, there is no excuse today.  The science and knowledge about how important the ocean is to the existence of life - ours included - is now widely understood.”

She went on to say, “There are strict littering rules that prevent anyone from so much as discarding a plastic bottle in the ocean.  It is unconscionable to think that someone could deliberately sink an entire ship to discard it.  The ocean is not a place for human waste and unwanted products.”

Asked what should be done, she replied, “Return to sender.  They brought a ship uninvited to Mauritius, they are responsible for taking it back.  Why should the citizens of Mauritius and Reunion Island have to suffer decades of pollution and risk for their irresponsible conduct.”

A deep ocean full of wonder

Dr Sylvia Earle, one of the world’s most preeminent oceanographers, has explored some of the deepest parts of the ocean around the world.  She talked about her experience exploring these depths, which she describes as full of life, but less well known than the far side of the moon.

“There is so much we don't know about the deep ocean. There is life everywhere down there.  We are only just discovering life on the seabed that is vital for modern medicine. Indeed 40 compounds from deep ocean organisms can be used for novel coronavirus treatment.  

Thousands of medical remedies and useful compounds have been first found in nature.  These were then cultivated, such as jojoba bean oil, and replaced the oil from sperm whales.  Similarly, the active ingredients in aspirin were first found in wild plants and have now replicated in laboratories.  Certain compounds discovered in shark liver appear to help combat the coronavirus and can be synthesized without killing sharks.”

Speaking about advances in new synthetic biology techniques, she went on to say,  “The ocean is like a library of priceless knowledge that can be carefully extracted without destroying the source. Changing the chemistry of the ocean with pollution, including the oil and waste from the Wakashio, closes the book on information vital to our future and future generations."

Elizabeth Taylor, who worked on the BP Deepwater Horizon response, is a submariner who also builds her own submersibles. She was co-host of the Ocean Elders ‘Dive In’ show and raised some important questions from what she had been observing about the Wakashio oil spill in Mauritius.

“Where is the oil fingerprinting?  The results should be publicly available so scientists around the world can understand and advise on the potential impact on all lifeforms around this area.  Having so many whales and dolphins die so soon after an oil spill is tragic, and the oil spill occurred on an important and sensitive coral reef.  

The microbes and algae in Mauritius’ oceans contained important biological information that could be commercially valuable.  Much of this could now be lost.  

The effects of shipwrecks and oil spills can be seen for decades.  What’s concerning in the Mauritius situation is what appears to be a secretive cleanup with no independent international scientific oversight. 

There appears to have been harmful algae blooms occurring downcurrent from the wreck, and if this is true, it is important to conduct full scientific tests in the region to understand the cleanup processes and what may have triggered these harmful algal blooms.  This is an area of outstanding biological interest and such developments are deeply concerning.”

Basis in law: The 2007 Nairobi Convention on Wreck Removal

So is there any basis in law for Dr Sylvia Earle’s demands that the owners remove their wreck?

Actually, yes.  The 2007 Nairobi International Convention on the Removal of Wrecks.

It calls for wreck removal.

In previous statements, the UN Global Shipping Regulator - the IMO - who were responsible for developing these laws explained, that “the number of abandoned wrecks, estimated at almost thirteen hundred worldwide, has increased and as a result, the problems they cause to coastal States and shipping in general have become more acute.”

The IMO also goes on to say, “The Convention makes shipowners financially liable and requires them to take out insurance or provide other financial security to cover the costs of wreck removal. It also provides States with a right of direct action against insurers.”

The owner of the Wakashio is Japan-based Nagashiki Shipping Co Ltd.  The insurer is Japan-based, Japan P&I Club.

The Convention defines  a wreck in four terms, including a sunken or stranded ship, any part of a sunken or stranded ship, including any object that is or has been on board such a ship.  This clearly covers the almost 300 meter long forward section of the Wakashio.  

In July 2020, Japan signed the Nairobi International Convention on the Removal of Wrecks (2007), and it is now in force in the country.  Panama had already ratified this treaty five years ago on 25 August 2015.

The Wakashio was flagged in Panama but built by a Japanese company and rented only by Japanese companies. It is also important to note that it has never even been to Panama, raising questions about why it was flagged there in the first place.

So from this international law, it appears that Dr Sylvia Earle is correct. The shipowners are legally obligated to remove the forward section of the Wakashio from the ocean floor.

Obligation to reveal sinking location

As part of the 2007 Nairobi Convention, the IMO also compels shipowners to legally reveal the location of a sunken wreck.

In a statement on its website, the IMO is very clear that the articles in the Convention cover.

• Reporting and locating ships and wrecks - covering the reporting of casualties to the nearest coastal State; warnings to mariners and coastal States about the wreck; and action by the coastal State to locate the ship or wreck; 
• Criteria for determining the hazard posed by wrecks, including depth of water above the wreck, proximity of shipping routes, traffic density and frequency, type of traffic and vulnerability of port facilities. Environmental criteria such as damage likely to result from the release into the marine environment of cargo or oil are also included;  
• Measures to facilitate the removal of wrecks, including rights and obligations to remove hazardous ships and wrecks - which sets out when the shipowner is responsible for removing the wreck and when a State may intervene; 
• Liability of the owner for the costs of locating, marking and removing ships and wrecks - the registered shipowner is required to maintain compulsory insurance or other financial security to cover liability under the convention; and  
• Settlement of disputes.

The location of the sinking of the forward part of the Wakashio on August 24 has not been revealed despite local and international pressure for this information. Only photographs and videos taken by public officials have so far been released 43 days later.  

Responsibilities of the shipowner

The Waskashio was one of the largest vessels in the ocean, and the sunken front section alone was bigger than 99% of all boats by itself. Legally, the shipowners are obligated to disclose its location, regardless of who the owners claim ordered the sinking.  Failure to do so by Wakashio ship owner, Nagashiki Shipping Co Ltd, is a breach of the Nairobi Convention, which both Japan and Panama are party to.

The law states in cases of any dispute of the responsibility of the shipowner, that this would be arbitrated under the United National Convention on the Law of the Sea.

“If no settlement is possible within a reasonable period of time not exceeding twelve months after one State Party has notified another that a dispute exists between them, the provisions relating to the settlement of disputes set out in part XV of the United Nations Convention on the Law of the Sea, 1982, shall apply mutatis mutandis, whether or not the States party to the dispute are also States Parties to the United Nations Convention on the Law of the Sea, 1982.”

Liability of the salvors

The forward section of the Wakashio was dumped in the Indian Ocean by Boskalis-owned SMIT Salvage.  The subsidiary of the Dutch multi billion-dollar giant used the two Malta flagged vessels, the Boka Expedition and the Boka Summit for this operation.

Within a day of the wreck being sunk, over 50 whales and dolphins had washed up dead on Mauritius’ coast, with many more feared dead and suffering offshore.  The sinking of the forward section was so contentious, it triggered a march in Mauritius’ Capital City of over 100,000 people in some of the largest protests the country has ever seen.  

Now with Dr Sylvia Earle's call for wreck removal, backed by the law of the Nairobi Convention, there is likely to be an expensive bill for the owners, their insurers, and the salvors, as they will now need to lift a vessel larger than the Titanic off the ocean floor.

Improper sinking

Videos of the sinking also reveal that even the sinking may not have been done correctly.

Sound and movement of the doors can be seen just before the vessel went under (see 27 seconds in the above video), implying that not all materials had been firmly secured on deck and could now be floating to other undisclosed locations in the Indian Ocean.

A full inventory of all items on board, as required by international law under Marpol has still not been made public.  Marpol are the set of laws that govern ocean pollution by shipping and is administered by the UN Shipping Regulator, the IMO, based in London.

If this was a genuine maritime accident, why all the secrecy?

Legality of decision

While statements by the shipping companies have tried to pass responsibility to the Government of Mauritius, they may find this defense may not hold much weight.

The insurance company and the salvors signed an agreement on 26 July under the Lloyds LOF and SCOPIC.

They were legally responsible for all actions and were obligated to follow all international laws under this.  They did not once reveal that they were compelled to break the law under duress by the Government of Mauritius.  

As shipowners and insurers with a presence on the ground in Mauritius, it is challenging to see how that they could not have been intimately involved in the operation to sink their own $50 million vessel.

The IMO, ITOPF, Japan P&I Club were all on the ground, along with almost 100 international consultants. 

So there should have been a wealth of advice on the legality of deliberately scuttling a vessel when other options existed.

Two important questions they would have to address are:

• Where is the documented evidence that these groups officially advised the Mauritian Government and the National Crisis Committee, that deliberately sinking a vessel could break at least seven international laws?  Mauritius has an advanced I.T. system, so all official correspondence is dated, documented and can be discoverable under Freedom of Information requests.
• How much were these international consultants paid to come to Mauritius, and yet they did not have the rudimentary expertise to recognize that laws set by their own organizations were being broken?

Government of Mauritius position

The citizens of Mauritius also find themselves in an interesting position.

The General Election of November 2019 was being contested by all the major political parties and several prominent citizens in several legal cases, amid widespread allegations of electoral fraud, when the Wakakshio incident occurred.  Until the November 2019 General Elections, elections in Mauritius have been largely independent and overseen by an independent Electoral Commission. The scale of allegations and evidence submitted is unprecedented for the Indian Island nation.

Electoral fraud from the 2019 election had been alleged in several marginal constituencies which tipped the balance of power, and three lawsuits had been filed in Mauritius’ Supreme Court that challenged the validity of the entire outcome of the general election.  The hearings at the Supreme Court of Mauritius into electoral fraud had been temporarily halted due to Covid-19.  

In the Mauritian Constitutional and Legal system, the UK Privy Council is the highest Court of Appeal.  It is likely that the case into electoral fraud at the 2019 General Election will be heard there.  

Although the scale of electoral fraud cases filed in the Mauritius Supreme Court have never been seen before, there is one precedent in Mauritius from fifteen years ago.  In a constituency in the 2005 general election, the uncle of the current Prime Minister was found guilty of electoral bribery.  This case was heard at the UK Privy Council and the judgement can be read here.  The 2008 judgement by the UK Privy Council ruled that the election result in 2005 in the constituency should be annulled. The subsequent by-election in 2009 was what allowed the current Prime Minister, Pravind Jugnauth to enter parliament.

A US Diplomatic Cable on the affair at the time of the judgement in 2008, described the situation. 

“On November 5, the UK Privy Council, which constitutionally is the highest appellate court with authority in Mauritius, unanimously upheld a Mauritius Supreme Court judgment, whereby Member of Parliament (MP) and former Minister of Health, Ashok Kumar Jugnauth, was found guilty of electoral bribery.”

The reason why this piece of Mauritian constitutional intrigue is relevant, is the question of what would be the implication for the Wakashio case (including the decision to scuttle the vessel) if the General Elections were to be judged to have been null and void.  This would imply several decisions by political leaders could also be annulled.  The National Crisis Committee in Mauritius was not chaired by a senior civil servant, but by the Prime Minister, Pravind Jugnauth.  

So if all decisions made by the current political leaders are open to judicial review, this would also include any involvement in the decision to sink the Wakashio.  This would place even more scrutiny on the role of international organizations, companies and consultants in Mauritius who advised and acted on a decision to breach international law.

This means the legal obligations to follow international law would continue to be on those who committed the acts (i.e., those involved in the salvage operation).  There are significant obligations to repair the damage and restore marine environment health for those who may have broken international law, and it is likely that there will be pressure to apply these laws.

The three main opposition parties have so far remained in parliament to prevent the Constitution from being forcibly changed.  Under the Mauritian parliamentary system, the Constitution can only be changed with a super majority of 75% vote in parliament, which the current Government does not have.

Other international law violations

Greenpeace has already called out the sinking of the Wakashio for several international environmental law violations.  The scuttling of the Wakashio was conducted by two Malta-flagged vessels.  As Malta is a signatory to several international conventions on maritime pollution, this would make Malta responsible for the conduct of vessels flagged to it.  

In a statement on August 25, Greenpeace highlighted these obligations: 

“The MV Wakashio was being towed to its planned sinking place by several ships – among them two Maltese-flagged vessels, the Boka Summit and the Boka Expedition. As a party to the London Convention (1972), the Republic of Malta is required to prohibit and prevent its vessels from dumping waste including vessels at sea, except under the limited conditions recognized in the Convention.  According to Article III.a.2 of the London Convention (1972), the deliberate disposal of vessels at sea is considered dumping.”

No response has been received from the Malta shipping agency, or the UN shipping regulator - the IMO - on these violations, despite this event occurring in August.

Greater corporate responsibility by Mitsui OSK and Nagashiki Shipping

Local NGOs in Japan and Mauritius have been calling for greater corporate responsibility from those involved in the Wakashio disaster. The Program Director of Greenpeace Japan, Hisayo Takada, Director of Greenpeace Africa, Melita Steele, and President of  a Human Rights Organization called Dis Moi,  Roshan  Rajroop, all called for greater corporate responsibility in a joint statement on September 25.

“It is impossible to completely hold a company accountable through the law alone. The legal framework for environmental issues is under development. For this reason, Mitsui OSK and Nagashiki Shipping must proactively commit to their social responsibility, rather than taking advantage of legal loopholes.

Most importantly, Mitsui OSK and Nagashiki Shipping should use this disaster as an opportunity to finally break away from fossil fuels and to shift towards sustainable renewable energy. The two companies should give up transporting coal, oil and gas. Specifically Mitsui OSK should end any involvement in oil and gas production, including around LNG.”

Ongoing uncertainty about the effects of the oil

The calls for shipping to end its dependency on oil also comes on the back of the uncertainty about the effects of the type of oil used in the Wakashio.

A fundamental procedure in oil spills - oil fingerprinting - appears to have been omitted, even though there were representatives from the IMO and ITOPF on the ground in Mauritius, supposedly advising on ‘global best practice’ to a major oil spill.

Following reports that a pregnant whale carcass had traces of oil discovered during an autopsy, Greenpeace Africa Senior Climate and Energy Campaign Manager, Happy Khambule, said,  “We will never know if anyone should be held accountable for the death of 50 whales and dolphins if there is no public information. Instead of buying time and placating the public, authorities in Mauritius should gain its trust by disclosing all they know”.

On August 24, Greenpeace and Mauritian human rights NGO Dis Moi sent a joint letter to the government of Mauritius, demanding a fully public independent investigation. After no answer was given by Mauritian authorities, a second letter was sent on September 14.

A final word from Sylvia Earle

As one of the world’s most prominent ocean scientists has argued, we are only just discovering the importance of life on the ocean floor.  

The ocean is not a dumping ground.  It is home to billions of organisms we are yet to fully describe and understand.  

The sinking was absolutely unnecessary and now likely in breach of even more international laws.

Sylvia Earle is just the latest high profile figure to have called for greater scrutiny of the Wakashio disaster. This summer, Sir Richard Branson called for global shipping reforms, after seeing the effects of the Wakashio oil spill, and even the Pope called for prayers for Mauritius.

There are now calls for the shipowner to pick up all the pieces of their vessel from the ocean floor and take them back to where they came from.