Recycling of Ships Act, 2019: An Analysis

Achintaya Soni and Tanya Singla, UILS, Panjab University, Chandigarh


INTRODUCTION

The genesis of the practice of ship-breaking, commonly known as ship-recycling in India can be traced back to around a century ago in the 1920s. But it was not until the 1980s that it attracted the world’s gaze. Since then, we have traversed a long distance in the practice of dismantling the moribund ships. Today, India stands among the top five ship-recycling countries of the world and together these countries account for more than 98% of all ship-recycling in the world by gross tonnage. Out of all 1000 ships which are recycled per annum globally, 300 are recycled in India, amounting to the recycle of 70 lakh gross tonnage of ships per annum. This practice of ship-recycling contributes USD 1.3 billion to India’s GDP.


Realising the potential of this largely unorganized sector in the country and to address the numerous inherent perils in the activity, the Government of India decided to regulate it by having an exclusive legislation. In pursuance of this objective, the Parliament of India on December 09, 2019 passed 'Recycling of Ships Bill' which specified certain requirements for undertaking the recycling of ships and developed the regulatory framework for the effective implementation of the same. Introduced by Mr. Mansukh Mandaviya, Minister of State for Shipping, in Lok Sabha on November 25, 2019, the Bill received the assent of the President of India on December 13, 2019 and became an Act thereupon. The Recycling of Ships Act (hereinafter “the Act”) has been modelled on the lines of The International Maritime Organisation’s Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 (“The Hong Kong Convention”) to which India acceded in November 2019.


FEATURES OF THE ACT

Section 2 of the Act defines “Ship Recycling” as the activity of dismantling of a ship at a ship recycling facility in order to recover components and materials for reprocessing and reuse, while taking care of hazardous and other materials and includes associated operations such as storage, treatment of components and materials on site, but not their further processing or disposal in separate facilities[1]. The “Hazardous Material” is defined as any material or substance, which is liable to cause harm to human beings, other living creatures, plants, micro-organisms, property or the environment.[2]


Application/ Applicability of the Act

Section 1(3) of the Act provides an extensive list of the ships which have been obliged to comply with the provisions of the said legislation. This list covers: (i) any new or existing ship which is registered in India, (ii) ships entering a port or terminal in India, or the territorial waters of India, (iii) any warship, or other ship owned and operated by an administration and used on government non-commercial service, and (iv) ship recycling facilities operating in India.

The Act provides for the creation of a “National Authority” by designating an officer (not below the rank of Joint Secretary to the Government of India), which shall “administer, supervise and monitor” all activities related to Ship Recycling.[3]


Duties of National Authority Constituted under the Act

The National Authority has a duty under the Act to conduct surveys which includes: initial survey; a renewal survey not exceeding five years; additional survey at the request of the owner after a change, replacement or significant repair; a final survey before the ship is taken out of service and before recycling to ensure all requirements are followed; and any other survey as may be prescribed. [4]

Also, after the survey is conducted, a certificate would be issued in accordance with the provisions of this Act, and rules and regulations made there under.[5]


Obtaining Certificate for the Ship

Section 8 of the Act states that the owner of the new ship must apply to the National Authority to receive a certificate on inventory of hazardous materials and the existing ship owners must apply for the certificate within 5 years of the commencement of the Act. It is also laid down that the certificate must be renewed every 5 years[6] and also has to be maintained and kept updated regarding the change in structure and equipment of the ship.[7]


Certificate of Authorisation

The Act states that the ships will be recycled only in authorised recycling facilities as per the procedure laid down in the Act.[8] An application to authorise such a facility must be made to the Competent Authority along with a ship recycling facility management plan, and a prescribed fee. Existing facilities must apply for authorisation within 60 days of the commencement of the Act. A facility will be authorised when the Competent Authority is satisfied that it follows the specified standards but if the applicant has not complied with the requirements of this Act, or the rules or regulations made there under, the application for authorisation would be rejected. The certificate of authorisation will be valid for a period as specified but not exceeding five years.[9]


Also, every Ship Recycler has to maintain adequate measures for emergency preparedness and response, safety, health, training, and welfare of workers as per the Factories Act, 1948.It must also provide insurance coverage for the regular and temporary workers.[10]


Recycling Process

A ship owner must apply to the National Authority for obtaining a recycling certificate. The certificate would be issued on the completion of the survey and would be valid up to 3 months only.[11] The Ship Recycler also has to prepare a ship recycling plan which should be approved by the Competent Authority.[12]


Environmental Protection

The Act stipulates that a ship recycler must: (i) ensure safe and environmentally sound removal and management of hazardous materials from a ship, and (ii) comply with the specified environmental regulations.[13] They must also ensure that no environmental damage is caused due to such recycling. On contravening these provisions, the ship recycler will be liable to pay environmental damages and clean-up operation compensation as prescribed.[14]


The Act also contains a clause for appeals, which states that the decisions of the Competent Authority may be appealed against in the front of the National Authority within 30 days of receiving the decision. Decisions of the National Authority may be appealed before the Central Government within 30 days of receiving the decision.[15]


ANALYSIS OF THE ACT- AN OBSCURE LEGISLATION?

Though the law makers envision health and safety of the environment and of those who are engaged in the process of ship-recycling through the Act, it does not adequately address the specific ways in which it can be achieved. For instance, the Act obliges the Ship Recycler to maintain adequate measures for emergency preparedness and response, safety, health, training, and welfare of workers but ‘how much is adequate’ is not defined anywhere in it. Also, the legislation provides for the safety of the workers employed in the concerned industry only to the extent of Factories Act, 1948. It has clearly come a cropper in taking into account that the work associated with ship recycling is far more dangerous than the work covered by Factories Act. In the name of bodily protection, Factories Act, 1948 provides only for the protection of eyes under Section 35. According to ‘IndustriAll’, the practice of ship recycling is believed to be the “world’s most dangerous job.” But no additional provision for complete bodily protection has been added in the Act failing to take into account the exclusive threats or dangers inhibited in the process of ship recycling.


Similarly, the legislation is also obscure about its take on environment safety. Although there’s enough branding of the same but there’s a dearth of clear provisions which may come in handy for that purpose. Also, the Act is completely silent about the trade of waste which is extracted out of the dismantling of ships. In this case also, the Act has been drafted in sync with the Hong Kong Convention which itself does not address the issue of such gravitas. The dearth of the provision dealing with the efficient and innocuous management of waste makes the Act an incomplete legislation.


Apart from the legislation being enigmatic, it also provides for the undue powers in the hands of the government. Section 3 of the Act provides for the constitution of a National Authority which shall be responsible for the stewardship of all activities related to Ship Recycling. Since there are no details given in the Act about the same, the Authority may be appointed at the whims and fancies of the government. Also, under Section 6 (1) of the Act, the government has been empowered to exclude certain categories of ships from the restrictions of not using/installing prohibited hazardous materials. But there are no standards based on which the government should arrive at such a decision.


CONCLUSION

Breaking ships into recyclable components, prima facie, creates a paradisiacal picture of employment generation, economic growth and environmental sustainability. Also, India is among the preferred destinations for ship dismantling. However, looking at the wider picture of the same, one realizes the practical reality. The Hong Convention provides that the inventory of all hazardous substances on the vessel, such as asbestos and heavy metals, has to be prepared before the ship is recycled and the recycler must provide a specific recycling plan. It also provides that the workers must wear protective gear and are trained to dismantle the ships safely. Although, the ‘Act’ has been formulated on the lines of this convention, however, no concrete provisions of the same have been incorporated. These shortcomings coupled with the above-mentioned ones makes the Act an obscure piece of legislation.


The government must reconsider the Act and make the efforts to fill the fissures in it. The government should specifically and elaborately provide for the solutions to the challenges pointed out by the Act. It should enumerate the specific precautionary measures to ouster all the suspicions revolving around the safety of workers and degradation of environment. It should also give the details about how the government will perform all the duties bestowed to it by the Act. All these measures must be zeroed in to make it a prolix and effective legislation.


[1] Section 2 (n) [2] Section 2 (e) [3] Section 3 [4] Section 7 (1) [5] Section 7(2) [6] Section 9 [7] Section 8