Responsibility and Liability of Marine Pollution by Oil

Balikpapan Bay Pollution Case

Dina Sunyowati

and Annisa Firdhausy

Postgraduate School, Universitas Airlangga, Surabaya, Indonesia

Postgraduate School of Law, Universitas Gajahmada, Yogjakarta, Indonesia

Keywords: Liability, Marine, Pollution, Responsibility.

Abstract: Incidents of marine pollution occurred once more in Indonesian waters. It took place in Balikpapan Bay on

March 31, 2018 due to the fact that PT Pertamina, Co. subsea pipeline was cut off then the crude oil

contamined the sea. The problem is all about who is responsible and liable in restoring those destructions?,

It also the problem how to enforce the law on this case. Based on the collected data, there come up

casualties, environmental pollution and the fishermen’s losses. This research methode uses juridical-

normative together with the statute and conceptual approach. The purpose is to recognize how the law

enforcement in environmental pollution does and who the responsible person is. The result of the research

stated that the main focus of the effort has been done to overcome the emergency post-oil spill occurred in

various ways, in line with Presidential Regulation No. 109/2006, including the polluter pays principle and

strict liability. This is in accordance with the 1992 Civil Liability Convention and Convention on

Compensation for Oil Pollution Damage 1971. Meanwhile, consistent with Law No. 32/2009, the polluters

are also compulsarily required to restore the environment from damages to the marine ecosystem.

Therefore, the government may apply for additional compensatory restoration.

1 INTRODUCTION

Environmental pollution occurs in waters resulting

in the damage of marine ecosystem, coastal

community losses and environment. The source of

the pollution at sea is caused by land, oil, ships,

dumping, exploration and exploitation activities

from air space and others that cause damage to the

marine environment. (Patricia Birnie et.all, 2009)

One of the activities on exploration and exploitation

in a sea are offshore mining or laying down the

pipelines or cables in underwater. When the owner

wants to install the structure or laying down the

pipelines or cables, they should have a permission or

an agreement from coastal state eventhough an

agreement of the zone belongs to EEZ and

Continental Shelf.. The regulation of laying down

the pipelines or cables is regulated in UNCLOS

1982 and several national laws in Indonesia.

In Indonesia, there are many cases of marine

environment pollution as it happened in the Bay of

Balikpapan, on March 31, 2018. The case is quite

popular and pay a public attention. This incident

began when Panama's MV Ever Judger ship,

transporting coal to Balikpapan, crossed to

Balikpapan Bay. Since the condition Balikpapan

Bay is not too deep (approximately 25 meters closed

to the seabed), so before the docks, the Port States

has sent a sea patrol ship to guide this coal carrier

ship into the port. Balikpapan Bay has a several "red

zones" because there is a seabed pipelines used to

deliver crude oil connecting between Lawe-lawe

Terminal and Pertamina's Balikpapan oil refinery.

(Mongabay, 2018)

Based on the testimony of the witness, there are

both miscommunication and misinterpretation

between the Captain of the MV vessel Ever Judger

and the Captain of the Sea Patrol ship. According to

the Captain (a chinese), the anchor of the ship can

put up to 1 meter above the surface of the sea. But

the Captain dropped the entire ship's anchor of 27.5

meters longer ‘till it reached the seabed. It resulted

in the breaking up of Pertamina's oil pipeline. The

breaking up of the oil pipe caused the pollution in

Balikpapan bay, blackened seawater including fire

caused victims of 5 fishermen. The police set the

ship's Captain MV Ever Judger as a suspect. In

relation to pollution in Balikpapan Bay due to oil

spill, The question came up; who is the resposible

Sunyowati, D. and Firdhausy, A.

Responsibility and Liability of Marine Pollution by Oil.

DOI: 10.5220/0007548706450648

In Proceedings of the 2nd International Conference Postgraduate School (ICPS 2018), pages 645-648

ISBN: 978-989-758-348-3

645

for the incident, and how the liability system and

recovery should work.

2 DEFINITION OF BAY

International law always recognizes that Bays have a

close connection with land and it is more appropriate

that they should be considered as internal waters

than as territorial sea. International customary law

recognised that the baseline could in principle be

drawn across the mouth of bays, enclosing them as

internal waters. But, customary international law

fails to provide clear rules on two essentials points:

the criteria of by which an indentation of the coast

would be recognised as a bay and the maximum

length of the closing line across a bay. (Churchill,

1999: 41)

The territorial sea convention, in article 7,

established clear and precise rules for the

determination of both herbs and the convention

article 10. At the outset it should be noted that these

rules do not apply to cases where the coasts belong

to more than one state. (Churchill, 41)

According to article 1 point 7 of Law 6/1996 on

Indonesian Waters, the meaning of the bay is a

distinct indentation whose penetration is in

proportion to the width of its mouth until the

concealed seawater is more than a mere coastal arch,

but a notion is not a bay unless the area is wider or

wider than the area of the semicircle which is in the

middle drawn across the mouth of the indentation.

3 REGULATIONS OF MARINE

POLLUTION BY OIL

3.1 International Treaties

• International Convention Relating to

Intervention on the High Seas in Cases of Oil

Pollution Casualties 1969

• International Convention on Civil Liability

for Oil Pollution Damage (CLC) 1969

• International Convention on the

Establishment of an International Fund for

Compensation for Oil Pollution Damage

(FUND) 1971

• International Convention on Civil Liability

for Bunker Oil Pollution Damage (BUNKER)

2001

• United Nation Convention on The Law of

The Sea (UNCLOS) 1982

3.2 National Regulations

• Law Number 6 of 1996 on Indonesian Waters

• Minister of Transportation Regulation

Number 94 of 1999 on the Protection and

Security Communication System Underwater

• Law Number 32 of 2009 on Protection and

Management Human Environment (UU

32/2009)

• President Decree Number 109 of 2006 on

Emergency response of Oil Spill at Sea

(Perpres 109/2006)

• Minister of Transportation Regulation

Number 58 of 2013 on Pollution Control in

Waters and Ports (Permen 58/2013).

• Minister of Transportation Regulation

Number 71 2013 on Salvage and/or

underwater work.

• Government Regulation Number 101 of 2014

on Toxic and Hazardous Waste Mangement

(PP 101/2014)

4 STATE RESPONSIBILITY AND

LIABILITY ON MARINE

POLLUTION

Arrangements on pollution of the marine

environment, started in many cases of marine

environmental pollution, caused by oil spills from

ships, such as Torrey Canyon Case, 1967, Amco

Cadiz 1978, Exxon Valdez 1989 and Sea Empress

1996. (Meinhard Doelle & Chris Tollefson, 2009)

In Article 1 (4) UNCLOS, the so-called marine

pollution is

“..the introduction by man, directly or indirectly,

of substances or energy into the marine

environment, including estuaries, which result or is

likely to result in such deleterious effects as harm to

living resources and marine life, hazards to human

health, hindrance to marine activities, including

fishing and othe legitimate uses of the sea,

impairment of quality for use of sea water and

reduction of amenities”.

In order to preserve and protect the marine

environment, States are required to take the

necessary action against pollution occurring in their

territory individually or jointly, such action shall be

within its jurisdiction and captivity, and shall not

transfer damage or harm or alter any type of

pollution to in other types. (Article 195 of UNCLOS

1982) In maximizing the protection of the marine

environment, the state is required to monitor and

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analyze environmental assessments, in cooperation

with competent organizations on an ongoing basis.

Related to laying down the subsea pipelines and

cables regulations are found in Chapter II UNCLOS

1982 regarding territorial sea, stated that coastal

States have a rights to establish the requirements on

laying down and maintenance the subsea cables and

pipelines which is located in territorial sea. Coastal

State also can make a regulation to protect the

subsea cable and pipelines in territorial sea.

If a marine pollution dispute occurs caused by

broken or damaged pipelines or cables in underwater

then there are environmental damages such as oil

spill and harm the marine biota, according to that

incident the polluters have to responsible to recover

the environment and pay the compensation. It is

based on the Polluter Pays Principle and the

Absolute liability listed on the Law No. 32/2009.

4.1 State and Individual

Responssibility

Under Principle 21 of the Stockholm Declaration of

1972, the principle of state responsibility has been

formulated. Under this Declaration stated that States

may exploit their resources as they wish but must

not endanger others.

Then in the Second Principle of the 1992 Rio

Declaration stated States have, in accordance with

the Charter of the United Nations and the principles

of international law, the sovereign rights to exploit

their own resources pursuant to their own

environmental and developmental policies, and the

responsibility to ensure that activities within their

jurisdiction or control do not cause damage to the

environment of the other states or of areas beyond

the limits of national jurisdiction.

Whereas in Law 32/2009, the State has the

responsibility to protect and utilize the existing

environment for the welfare of the people. Apart

from the state, the community must also be

responsible and protect and protect the environment.

For regions which are unique that needs to be

protected, then tankers are prohibited from passing

in the area, also it must be announced to all ships

that will cross the territorial sea. The Coastal States

or Port States, and every ship must obey the

provisions. Includes “red zones” are set by the

Government of Indonesia for the Balikpapan Bay.

The principle of absolute liability contained in Law

No. 32 of 2009 in Article 88, states that "any person

whose actions, business, and / or management of

hazardous and toxic materials waste, produce and /

or manage hazardous and toxic materials waste and /

or poses a serious threat to the environment

responsible for absolute responsibility for losses

incurred without the need to prove the element of

error ". Referring to the Balikpapan Bay case, the

one responsible for the oil spill in the sea is the

Captain’s MV Ever Judger and the Government in

this case is Pertamina, Co. has an obligation to make

compensation payments to the surrounding

community. (Tribun Kaltim, 2018)

In the International Convention on Civil Liability for

Oil Pollution Damage, commonly known as

Liability Convention 1976, stipulates that the

obligation of the owner or operator of the vessel to

provide compensation to the polluter who suffered

loss or damage to the pollution of the marine

environment by oil. The principle of indemnity used

is strict liability, which is the obligation to pay

compensation immediately after the loss, regardless

of whether the ship is wrong or not, (Dina

Sunyowati, Enny Narwati, 2011) This principle is a

new development in the principle of liability based

on fault. The principle of absolute liability can be

exempted in 2 things: there is force majeur, or if a

ship accident is caused by negligence of the state

monitor to maintain good guidance and navigational

aids. (IMO, 1954)

Implementation UNCLOS and national regulation

concerning the subsea pipelines or cables should pay

attention in several things, such as :

• Requires cooperation between the owner and

the operator the subsea cables via

.International Cables Protection Committee

• UN don’t have a special information of

institutional framework for national

legislation on underwater cables.

• The implementation of regulation on broken

and damaged underwater cables still

lacking

• Regulation related to install and laying down

the subsea pipelines/cables in the Law No.

6/1996

5 CONCLUSIONS AND

RECOMMENDATIONS

Currently the case is still continues and

investigations are conducted to determine who is

responsible for polluting oil spill in Balikpapan bay.

In the interim, the police have appointed the ship's

Captain of MV Ever Judger as a suspect. As an

effort to prevent and obligate the State, Pertamina,

Co. as the owner of pipelines in Balikpapan Bay

compensates, reduces oil spill and restores the

marine environment.

The government should review and emphasized

the shipping lanes and marine navigation system and

Responsibility and Liability of Marine Pollution by Oil

647

inform the user. In addition, there is a need for

monitoring and evaluation continously of all parties

and processes in the voyage, especially regarding

areas where there are pipelines or subsea

installations.

ACKNOWLEDGEMENTS

This article is the result of research in 2018

REFERENCES

Churchill V. Lowe, 1999, the Law of the Sea third edition,

Juris Publishing, UK,

Dina Sunyowati, Enny Narwati, 2011, Buku Ajar Hukum

Laut, AUP Press, Surabaya.

Meinhard Doelle & Chris Tollefson, 2009, Environmental

Law – Cases and Materials, Thomson Reuters,

Canada.

Patricia Birnie, Alan Boyle, Catherine Redgwell, 2009,

International Law & the Environment, Oxford

University Press, UK.

London Convention for prevention of Pollution of the Sea

by Oil, 1954

The 1969 Convention on Civil Liability for oil Pollution

Damage

International Convention Relating to Intervention on the

High Seas in Cases of Oil Pollution Casualties 1969

International Convention on Civil Liability for Oil

Pollution Damage (CLC) 1969

International Convention on the Establishment of an

International Fund for Compensation for Oil Pollution

Damage (FUND) 1971

Stockholm Declaration 1972

United Nation Convention on the Law of the Sea 1982 Rio

Declaration 1992

Agenda 21 Global 1992

International Convention on Civil Liability for Bunker Oil

Pollution Damage (BUNKER) 2001

Law Number 32 of 2009 on Protection and Management

Human Environment (UU 32/2009)

President Decree Number 109 of 2006 on Emergency

response of Oil Spill at Sea (Perpres 109/2006)

Minister of Transportation Regulation Number 58 of 2013

on Pollution Control in Waters and Ports (Permen

58/2013).

Government Regulation Number 101 of 2014 on Toxic

and Hazardous Waste Mangement (PP 101/2014)

Law Number 6 of 1996 on Indonesia Waters

http://kaltim.tribunnews.com/2018/04/30/pemeriksaan-

perdana-sebagai-tersangka-nakhoda-mv-ever-judger-

didampingi-3-pengacara-2-penerjemah

http://www.mongabay.co.id/2018/04/09/ternyata-teluk-

balikpapan-sudah-sering-tercemar-minyak-kok-bisa/

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