Legal Aid Commission

MARITIME LEGISLATION:

‘Sri Lanka actively involved in ocean affairs’

Sri Lanka is an island state surrounded by the ocean. It is geographically located at a very central place and we are bordering one of the most important shipping lanes in the world.Due to these reasons it is natural for Sri Lanka to be actively involved in ocean affairs. In addition Sri Lanka has submitted its claim to the United Nations claiming an extended continental shelf.

If we succeed in our claim it is said the ocean area of Sri Lanka will be 17 times that of the land area. To regulate the activities in this important area, we have enacted Maritime Legislation, states Justice P.A. Ratnayake, PC in his keynote address at the recent seminar on Maritime

Legislation

Maritime Legislation in Sri Lanka can be divided in to two main areas;

1 Regislation on oceans falling under Law of the Sea
2.Legislation on Shipping Law

Law of the Sea is an area on Public International Law where relations between States, between States and International organizations are mainly regulated. Shipping Law deals with the area of Private International Law where generally the commercial activities in the area of shipping between nationals of one State or several States are regulated. In my address I would focus more on Shipping Law as this seminar is on “Shipping and Marine Pollution”.

To have an idea on the types of legislation we have in Sri Lanka, I will draw your attention to a slide which I am displaying on the screen.

This slide displays some important statutes in the area of Maritime Law;

1.Maritime Pollution Prevention Act No. 35 of 2008
2 Merchant shipping Act No. 52 of 1971
3 Fisheries and Aquatic Resources Act of 1996
4 National Aquatic Resources Authority Act No.354 of 1981
5 Mines and Minerals Law No. 4 of 1972
6 Sri Lanka Ports Authority act No. 51 of 1979
7 Coast Conservation Act No. 57 of 1981
8 National Environmental Act No. 7 of 1980
9 Admiralty Jurisdiction Act No. 40 of 1983
10.Piracy Act No. 9 of 2001
11.Suppression of Unlawful Acts Against the Safety of Maritime Navigation Act No.42 of 2000
12 Carriage of goods by Sea Act No. 21 of 1982
13 Petroleum Resources Act No. 26 of 2003
14 Navy Act No. 20 of 1950
15 Fauna and Flora Protection Ordinance No. 2 of ?'9?'31987
16 Law on the Protection of the Maritime Cultural Heritage
17 Fisheries (Regulations of Foreign Fishing boats Act No. 59 of 1979)
18 Fishermen’s Pension and Social Security Benefit Scheme Act No. 23 of 1990

You could observe that some statutes deal with areas connected to Law of the Sea and others deal with areas connected to the area of Shipping. There are statutes which deal with both areas as well.

Law of the Sea

At the inception I will deal with the basic aspects of ocean legislation which fall under the Public International Law area of Law of the Sea. Since the seminar is focused on shipping I would be restricting myself to the very basic norms on Law of the Sea. To understand the International Law regime on oceans it is necessary to have some understanding of certain legal concepts that govern the formulation of the legal norms that deal with ocean affairs.

In this regard, understanding of Mare Libarum (open seas) enunciated by the Dutch Jurist Hugo Grotius and Mare Clausum (closed seas) enunciated by the English Jurist Seldon is necessary.

The Dutch East India Company wanted the right of navigation on oceans whereas the English wanted total control of the sea areas by the coastal states. If the English concept prevailed no Merchant ship could travel on the territorial waters of a state or on the strait waters of a strait without the permission of the coastal state. The concept of Mare Libarum prevailed over the concept of Mare Clausum and we have the concept of right of innocent passage and the right of straits passage which have become not only provisions of UNCLOS 111 but also Customary International Law.

Another concept that needs some recognition is the Arvin Pardo principle of considering the sea bed and the ocean floor beyond the limits of national jurisdiction as the common heritage of mankind. In fact the United Nations General Assembly resolution 2749 on a “Declaration of Principles Governing the Sea Bed and Ocean Floor and the Subsoil Thereof beyond the Limits of National Jurisdiction” expressly accepted this principle. This has been one of the guiding principles at the United Nations when the Member States were negotiating the regime on high seas. Even when the rights of the coastal states under the regimes of the Exclusive Economic Zone, the Continental Shelf and the High Seas were being considered under UNCLOS111 the principle of common heritage of mankind, would necessarily have had an impact.

These concepts played an important role not only in the International ocean regime but also had an impact when National legislation was drafted in respect of the ocean regimes of the coastal states.

When it comes to Law of the Sea, The Bible,The Dhammapada or The Quran is the United Nations Convention on Law of the Sea III.

UNCLOS III

The UNCLOS III in many of the articles dealing with ocean regimes give the member States the sovereign rights to explore exploit conserve and manage the resources given in the particular ocean area. To effectively manage the mandate given by the United Nations Sri Lanka has enacted different types of legislation. Some of the legislation cover many areas of Law and are of general application. Some examples of such statutes are the Maritime Zones Law of 1976 and the NARA Act of 1981. There are also legislation of particular application such as Petroleum Resources Act No. 26 of 2003, Piracy Act No. 09 of 2001, Suppression of Unlawful Acts against Safety of Maritime Navigation Act No. 42 of 2000 and Fisheries and Ocean Resources Act No. 2 of 1996.

A discourse on legislation in respect of oceans is not complete at least without a basic introduction to the Maritime Zones Law.

It can be observed that this law has been enacted in 1976. But UNCLOS III was signed at Motego Bay in 1982.

Nevertheless it was not necessary for basic Provisions in the Maritime Zones Law to be amended after Sri Lanka acceded to the convention notwithstanding the long period between enactment of the Maritime Zones Law and the promulgation and accession of Sri Lanka to UNCLOS III. Sri Lankan experts on the Law of the Sea actively participated in the negotiations at the United Nations Conference. Dr. Shirley Amarasinghe who was the Ambassador of Sri Lanka to the United Nations was elected as the Chairman of the Sea Bed Committee. It was these experts who advised and guided in the drafting an enactment of the Maritime Zones Law. This explains the reason for the comprehensive nature of this piece of legislation. Now it is more than three decades after the enactment of this law.

Due to recent developments in ocean affairs at present there are suggestions that certain provisions may need amendment.

NARA Act

Two other important statutes in the area of ocean legislation are the NARA Act No. 50 of 1981 and the Fisheries and Aquatic Resources Act No. 2 of 1996.

The NARA Act deals with the administrative machinery for the purpose of exploring exploiting conserving and managing the ocean resources that has been given to member states under the UNCLOS III. This legislation also deals with research and development of ocean resources. I have observed that the main focus of the law is in respect of non living resources.

The Fisheries and Aquatic Resources Act mainly deals with living resources such as fisheries and other living aquatic organism.

It has provisions to deal with licensing of fisheries operations, registration of fishing boats, protection of fisheries resources and conservation of fisheries resources.

Another important milestone in respect of legislation dealing with ocean resources is the Petroleum Resources Act of 2003. This Act regulates the exploration and recovery of Petroleum Resources in Sri Lanka. Petroleum resources could be explored only under the licensing regime and in terms of a “Petroleum Resources Agreement” entered into with the State.

At this stage let me commence my discussion in respect of the Legislation on Shipping.

The Port of Colombo is one of the main Hub Ports in the Indian Ocean. We have a large amount of merchant ships such as the main line carriers and feeder ships calling over at our Ports. Due to the expansion of the Port of Colombo and the creation of the Port at Hambantota an escalation of shipping activities are expected. Accordingly the legislation in this area is of much importance to all of us.

Important legislation

Important legislation in this area include legislation in respect of control and regulation of merchant ships, regulation of ports, control and regulation of marine pollution, control of commercial enterprises operating in the shipping industry and control and regulation of import and export of cargo.

For each of these areas we have separate legislation.

In many countries including our neighbouring countries it could be observed that there is a consolidation of the laws dealing with these areas into a few statutes.

One of the important features of these consolidated statutes are the provisions available for coordination between officials or organizations performing different activities.

This is essential for a proper functioning of the shipping industry.

In Sri Lanka the legal regime in respect of the shipping industry appear to be different. We have different legislation handling the various sectors of the shipping industry. In most areas there is hardly any provision encouraging such coordination.

I can give you many examples of this feature. One such area is the area of control and regulation of merchant ships and the area of control and regulation of marine pollution. The control and regulation of ships is done by the Directorate of Merchant Shipping created under the Merchant Shipping Act.

But the control and regulation of Ship source Marine Pollution is being done by the Marine Environment Protection Authority created by the Marine Marine Pollution Prevention Act No. 35 of 2008.

In this important area where coordination is absolutely necessary I do not see such coordination in terms of the present legal regime.

A ship entering a port has to be examined to consider a possible threat to the marine environment. Due to the conventional obligations mainly under the International Maritime Organization convention and the Memorandum of understanding on Port State Control of the Indian Ocean Rim Region ship inspection is conducted by the suitably qualified officials appointed as Port State Controllers by the Director General of Merchant Shipping.

In terms of the provisions of the Merchant Shipping Act and due to the necessity of accountability these officials need to be from the Directorate of Merchant Shipping. Accordingly the Marine Environmental Protection Authority officials cannot board a ship and examine its certificates and other requirements in respect of a threat of Marine Pollution. It would make matters more difficult at present as these two organizations fall under two different Ministries. Marine Environment Protection Authority falls under the Ministry of Environment and the Directorate of Merchant Shipping falls under Ministry of Ports and Highways.

Lack of coordination

Another instance of lack of coordination is between the Port Administration and the Directorate of Merchant Shipping. Ports are regulated under the provisions of the Sri Lanka Ports Authority Act and Shipping is regulated by the Merchant Shipping Act.

In the performance of Port State Control Functions or functions pertaining to arrest of ships done under the Merchant Shipping Act and Admiralty Jurisdiction Act it is necessary for the Port State Controllers as well as the Marshal of the Admiralty Court who are officials of the Directorate of Merchant Shipping to coordinate with the Harbour Master and his officials who are working for the Sri Lanka Ports Authority under the provisions of the Sri Lanka Ports Authority Act.

There is no proper coordination provided by the two enactments. There was a time when shipping was done by the shipping Ministry and Ports was handled by the Port Ministry. Fortunately it is not so now and both fall under one ministry.

Another area of lack of coordination could be observed when considering the Piracy Act no. 9 of 2001 and Suppression of Unlawful Acts Against Safety of Maritime Navigation Act no. 42 of 2000. Piracy act was enacted at the initiative of the Ministry of Ports. The Suppression of Unlawful Acts Against Safety of Maritime Navigation Act was enacted at the initiative of the then Ministry of Foreign Affairs. Both these enactments were enacted within a short period of each other.

I observe that some of the provisions in both enactments overlap mainly in the area of Control of Piracy.

Another feature I observed in the Piracy Act is that the main role on Control of Piracy is given to the Sri Lanka Ports Authority.

There is only a coordination clause with the Directorate of Merchant Shipping. It should be borne in mind that piracy is not confined to the ports or port limits. It extends to all ocean areas. The authority having competence in respect of all ocean areas is the Directorate of Merchant Shipping.

The competence of the Sri Lanka Ports Authority is confined to the ports and port limits. It would have been most appropriate if the function of eradicating sea piracy was entrusted to the Directorate of Merchant Shipping.

Kanag Iswaran PC, ICLP Secretary General S.S. Wijeratne, IOMAC Secretary General Dr. Hiran Jayawardane, Merchant Shipping Director General Ajith Seneviratne, Colombo Dockyard Managing Director Mangala Yapa, resource persons and guests were present on the occasion. (To be continued)

[Questions and Answers]

Coin and note

Question: Please answer the following:

1. Can I use coins for making jewellery or any other items?
2. Can I reproduce a currency note?

- Chamara, Chilaw

Answer:

1. No. In term of the Monetary Law Act it is an offence to melt, break up, perforate, mutilate, or use otherwise than as legal tender, any coin which is legal tender in Sri Lanka.

No. According to section 58(d) of the Monetary Law Act reproduction of a currency note in any form such as photocopying, scanning, drawing etc, without the authority of the Monetary Board, is an offence.

Genuine note

Question: How do I distinguish between a counterfeit note and a genuine note? What should I do, if I have received a counterfeit currency note?

- Naduni, Hokandara

Answer: All the currency notes issued by the Central Bank of Sri Lanka have high security features designed to combat counterfeiting. The Central Bank of Sri Lanka has produced a Guide (a leaflet) to assist to detect and deal with counterfeit currency.

1 The main security features that can be observed in a currency note are: -

2 Counterfeit currency notes should not be used as means of payment. The use of counterfeit notes deliberately for transactions is a serious crime that is punishable by imprisonment and/or payment of a fine. Even the possession of a counterfeit note is an offence. If a person detects a counterfeit note, he/she should refuse to accept it.

A person, who has already accepted such a note, should try to remember how he/she might have obtained it and report it to the Police. Security Thread, Watermark, See through feature, Intaglio (Raised) printing, Texture of the note, Micro lettering, Cornerstones- watermark

Evolution of Sri Lankan currency

Question: My child wants to obtain historical information on evolution of Sri Lankan currency? From where can I obtain above?

K Disanayaka, Tudella

Answer: The historical information of currency can be collected from the following museums and the publications.

i) The Central Bank Of Sri Lanka has established two museums at following places, where the historical information are available for the public

Currency Museum, Center for Banking Studies, No. 58, Sri Jayawardenapura Mawatha, Central Bank of Sri Lanka, Rajagiriya.

Money Museum, Regional Office, Central Bank of Sri Lanka,Stage I, Anuradhapura.

In addition to the above anybody can gather information from: www.museum.gov.lk

National Museum, Department of National Museum, Sir Marcus Fernando Mawatha, Colombo 7

Prohibited activities

Question: I want to know the prohibited activities with in the coastal zones?

- Kanchana, Kurana

Answer: The following activities are prohibited by law, within the coastal zone: Removal of corals other than for research purposes, development within the designated protected areas much as national parks/sanctuaries, approval will not be granted for any development activity National Parks and sanctuaries located within the coastal zone including Vilpaththu, Yala, Kuman, Panama National Parks/Sanctuaries.

Removal of sand except in areas identified by CCD and any development activity within sand dune areas.

A structure free set-back (buffer zone) should be maintained from the seaward side of the fore dunes up to the landward toe of the back dunes, where the total width of the fore dunes (primary dunes) and the back dunes (secondary dunes) is more than 100 meters at Kalpitiya, Talavila, Udappuwa, Hambantota Koholankala, Kirinda in the west and the South coast and 200 meters at Panama, Potuvil, Thirukkovil, Manalkadu, Kashurina beach and the Mannar peninsular in the East and the North coast.

Development within a radius of 200 m of archaeological, historical and religious sites designated by the Department of Archaeology.

Any development activity that will significantly degrade the quality of any area designated as being exceptional value.

Consumer problem

Question: There are so many unfair trade practices in Sri Lanka. Is there a possibility to make a complaint against unfair trade practices under the Consumer Protection Act?

- Dayani, Sent by email

Answer: Under the Consumer Protection Act No 09 of 2003 you can seek relief . You can make a complaint to the Consumer Protection Authority within three months of the violation of consumer protection rights. The Act provides for the protection of consumers against the marketing of hazardous goods/services, against unfair trade practices, and strives to ensure that consumers have adequate access to goods/services at competitive prices and are able to seek redress against unfair and restrictive trade practices. The functions and responsibilities of the Consumer Affairs Authority and the Consumer Affairs Council are directed towards these purpose. Consumer Protection Authority will take legal action against shop owners against offenses like selling goods at higher prices than the registered price and disregarding hygienic conditions. The Council conducts of inquiries relating to complaints made by consumers, especially on anti-competitive trading practices.

Therefore please make a complaint to the Consumer Protection Authority at the following address: Consumer Protection Authority, 1 and 2nd Floor, Sathosa Building, No 27, Vauxhall Street, Colombo 2.

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[Borrower defaulting installment payments]

Question: We acted as guarantors to obtain a loan from a Government Bank. According to the Bank statements, the person who obtained the loan did not repay to the bank installments and ignores their reminders.

What shall we do in this regard? Please advice us.

Sent by email

Answer: According to the Debt Recovery (Special Provisions) Act No.2 of 1990 and its amendments No.9 of 1994, the Bank has the power to recover the money from the surety when the borrower defaults payment. Section 2 (1) states as follows:-

“A lending Institution may subject to the provisions of sub-section (2) recover debt due to it by an action instituted in terms of the procedure laid down by this Act, in the District Court within the local limits of whose jurisdiction - a party defendant resides; or the cause of action arises; or the contract sought to be enforced was made….etc..

You should be aware that when you are signing as a Guarantor to a loan, you are legally bound to pay the loan if defaulted by the borrower.