Marine pollution and liability : Author: Sribalaji G
It was long thought that the ocean was a bottomless pit and could absorb any and all spills. This attitude began changing after the infamous case of the tanker, Torrey Canyon, which ran aground near the English coast in 1967. The spill, which released over 100,000 tons of crude oil into the ocean, accelerated legal efforts to answer the question “who is liable when a ship strikes or spills cargo into the ocean?” Before this incident, international maritime law focused on drafting rules to prevent oil spills and ship disasters. Since then, lawmakers focused on formulating rules to answer the liability question
ARTICLE
INTRODUCTION
It was long thought that the ocean was a bottomless pit and could absorb any and all spills. This attitude began changing after the infamous case of the tanker, Torrey Canyon, which ran aground near the English coast in 1967. The spill, which released over 100,000 tons of crude oil into the ocean, accelerated legal efforts to answer the question “who is liable when a ship strikes or spills cargo into the ocean?” Before this incident, international maritime law focused on drafting rules to prevent oil spills and ship disasters. Since then, lawmakers focused on formulating rules to answer the liability question. The following discussion highlights this framework, the answer to the liability question, and the implications of the MSC Elsa 3 incident on Indian maritime law.
THE FOUNDATION: UNCLOS AND MARPOL
The starting point is the United Nations Convention on the Law of the Sea 1982 . Article 192 requires States to protect and preserve the marine environment. Article 194 requires States to take measures to prevent, reduce and control pollution from any source. Article 235 states that States are responsible for the performance of these obligations and must ensure that their legal system provides for prompt and adequate compensation in case of pollution damage.[1] UNCLOS only establishes a framework, the details being supplied by other treaties, the most important of which is MARPOL 73/78, concerned with pollution from ships, whether from normal operations or from accidents.
The six annexes deal with oil, noxious liquid substances, harmful substances carried in packages, sewage, garbage and air pollution.[2] Responsibility for enforcement is shared: the flag state has the primary obligation, but the port and coastal states are also able to inspect ships and take action against them, something that becomes important when the flag state acts slowly.
THE COMPENSATION SYSTEM
Since prevention rules do not cover the cost of clean-up, the law relies on liability rules. The 1992 International Convention on Civil Liability for Oil Pollution Damage (CLC) makes the registered owner of a tanker strictly liable for any damage caused by oil pollution, thereby eliminating the need for the victim to prove that negligence had occurred. Liability is limited according to the size of the ship, but this limit is removed if the damage was caused intentionally or recklessly. The owner is also required to have insurance, and claimants have the right to make their claim directly against the insurer.[3]
If the owner is unable to pay or the damage exceeds the cap, the convention reached in 1992 provides for the International Oil Compensation Funds to become involved. These funds are financed by the oil industry itself.[4] The Bunkers Convention of 2001 also applies strict liability in the case of fuel leaking from ships which are not tankers[5]. The arrangement is quite balanced in that the shipowner has a limit, the victim has a clear person to make a claim against, and the insurance company as well as the oil industry share the burden.
THE GAP: HAZARDOUS CARGO
The problems arise when the substance in question is not oil. Chemicals and plastic pellets carried in containers are excluded from the CLC. The Hazardous and Noxious Substances (HNS) Convention was adopted in 1996 to respond to this situation and has been in force for almost three decades. The 2010 Protocol will finally come into force on 29 November 2027, and India is not one of the thirteen contracting states listed in August 2026.[6] Until that time, those affected by a chemical or plastic spill will generally have to depend on domestic law and standard maritime claims.
THE MSC ELSA 3 EXAMPLE
The vessel, MSC Elsa 3, flagged in Liberia, sank off Alappuzha on 25 May, 2025. It had 643 containers, some of hazardous stuff and plastic pellets. Fuel spilled into the ocean. The Kerala Government is suing in High Court for 9,531 crore rupees. This is for damage to the marine environment, cleanup costs, and lost income for fishing families. A sister ship, MSC Akiteta II, was ordered arrested at Vizhinjam. It was only released after a security deposit of 1,227.62 crore rupees was made, and the court said Kerala could ask for more later. Kerala got to the owner by arresting a different ship since the sunken one was on the seabed. It worked, but it's a workaround. Also, the security was way less than claimed. It really shows how tough it is to nail down a number for ecological damage. They hadn't even settled on the final amount when they set the security.
THE WAY FORWARD
India should really look at joining the 2010 HNS Convention. This way, if there's a spill from hazardous cargo, victims get money from a fund, not just one owner's stuff. Courts also need a clear way to price damage to sea life, so it's not just guessing. And fishing groups need quick interim payments; guys can't wait years for a ruling.
CONCLUSION
Marine pollution law has advanced a lot since '67. Oil rules are pretty robust now, but others still lag. The real question isn't if treaties exist, though. It's whether someone who lost their catch actually gets compensated. That MSC Elsa 3 case shows the law can touch the polluter, but it's a slow process. India and the rest of the world should aim to speed that up.
References
[1] UNCLOS, art 235.
[2] MARPOL 73/78 (1973 Convention as modified by the 1978 Protocol).
[3] International Convention on Civil Liability for Oil Pollution Damage 1992, arts III, V, VII.
[4] International Fund Convention 1992 (Fund for Compensation for Oil Pollution Damage).
[5] Bunker Oil Pollution Damage Convention 2001.
[6] IOPC Funds, ‘Status of 2010 HNS Convention’ (12 August 2026).