HIGH COURT OF MIR
DIVISION III — MARITIME AND ENVIRONMENTAL CHAMBER
THE OFFICE OF THE PROSECUTOR
Applicant
against
PATNA SURAT SEA RESOURCES
THE INTERNATIONAL SEABED AUTHORITY OF MIR
Respondents
Case No. HCM-DIII-023
The Lumen Prospect
APPLICATION INSTITUTING ENVIRONMENTAL RESPONSIBILITY PROCEEDINGS
The Office of the Prosecutor of the High Court of Mir ("the Office"), pursuant to its authority under Articles 3 and 5 of the Protocol to the Statute of the High Court of Mir on Environmental Responsibility Proceedings ("REEF") and Article 17(3) of the Statute of the High Court of Mir ("HCM Statute"), institutes environmental responsibility proceedings against Patna Surat Sea Resources and the International Seabed Authority of Mir as follows:
I. THE RESPONDENTS
1. Patna Surat Sea Resources ("PSSR") is a company registered in Patna Surat, Pramatra. At all times relevant to this Application, PSSR held the licence issued by the International Seabed Authority of Mir for the exploitation of polymetallic nodules in PSSR Block C, known as the Lumen prospect, and operated the production vessel Green Dawn there. PSSR is majority-owned by Glasholm Minerals Group, registered in Mikhailistan. Petrogan, the national oil company of Hin-Klia, holds 20 per cent of PSSR's shares. PSSR's sponsoring States are Mikhailistan and Pramatra.
2. The International Seabed Authority of Mir ("ISAM") is the international organization established by Article 23 of the Mir Convention on the Law of the Sea ("MCLS"). Under the Agreement on Nodules, Common Heritage and Ocean Resources of the Amarena Sea ("ANCHOR"), the States Parties conferred on ISAM the functions of licensing, regulating and supervising activities in the belt of seabed surrounding the Amarena Trench. ISAM acts through its Assembly, its Council, its Legal and Technical Commission ("the Commission") and its Secretary-General.
II. JURISDICTION
3. The Chamber has jurisdiction over this Application pursuant to Article 32(1) of the HCM Statute and Articles 2 and 5 of REEF, the proceedings concerning serious harm to the marine environment arising from activities regulated by ISAM.
4. The Office opened its investigation on three petitions submitted under Article 4 of REEF: Petition 12, by the councils of Lampar, Ira'mas, Po-Kaya, Baia-Fa, Acio and Tamsk, together with the Southern Plains Fishers' and Shellfish Growers' Association and the Ira'ma Strait Fishers' Cooperative; Petition 14, by the Beli fishing communities of the north-eastern shore of Lake Haida; and Petition 21, by the Ghani and Kotos communities of the Mokeng River and its Saden headwaters. Having completed its investigation, including the examination of documents produced under Article 7 of REEF, the Office files this Application under Article 5(2) of REEF.
5. PSSR accepted its licence after REEF entered into force (REEF Article 6(3)). ISAM is named as a respondent pursuant to Article 6(1) of REEF.
III. CONTEXTUAL AND BACKGROUND CIRCUMSTANCES
6. Under ANCHOR, the Amarena Trench is administered by ISAM as the Area, and a belt of seabed approximately 50 nautical miles wide surrounding the Trench is placed under ISAM's functions of licensing, regulating and supervising activities concerning seabed minerals. PSSR Block C lies in the part of the belt nearest the coasts of Ghanidash and the Cornuchuan Plains.
7. Since the Great Hadian War, the Cornuchuan Plains have been administered by Ghanidash and Pramatra and claimed by Belogal. No final settlement on the status of the Plains had entered into force when Hurricane Yolanda struck.
8. Several years after the war, PSSR applied to ISAM for approval of a plan of work for Block C, presented as the "Clean Energy Rare Earth Project," and requested review under the expedited procedure for strategic minerals for reconstruction. The Secretary-General determined that the application was eligible for expedited review. The Commission reviewed the application within the shortened period and recommended approval. The period allowed for the Council fell between its regular sessions, and no member requested a meeting to consider the recommendation. The Council took no decision within that period, and the plan of work was deemed approved. PSSR's licence was the first commercial exploitation licence issued for the Trench and the belt.
9. PSSR carried out commercial production at Block C for several years before Hurricane Yolanda.
10. As Hurricane Yolanda approached Block C, PSSR suspended lifting and discharges and kept the riser connected, as its emergency response plan allowed for the storm then forecast. Yolanda strengthened faster than forecast and passed just west of Block C (Day 0). The riser, the pipe that lifts nodules, sediment and seawater from the seabed to the production vessel, ruptured.
11. Within 24 hours, PSSR reported a "contained sediment incident" to the Secretary-General. PSSR repaired the riser, inspected it after the storm and resumed production. The inspection covered the riser; it did not extend to the return line, the pipe that carries water, sediment and fine particles from the production vessel back to the sea.
12. The storm had also cracked the return line, which normally returned water and sediment at depth. From the resumption of production until Day 42, the return line discharged water, sediment and metal-bearing fine particles into surface waters. The return line was not fitted with a flow or pressure alarm, and PSSR's monitoring buoys, placed under its approved monitoring plan, were positioned to detect a plume at depth.
13. The Secretary-General transmitted PSSR's report to the Commission and asked PSSR for follow-up reports, which PSSR provided, including images of the repaired riser. On the basis of those reports, the Secretary-General treated the incident as contained and confirmed it closed. The Green Dawn's next scheduled inspection was not due until later in the season.
14. From Day 24, shellfish died along the coast of the Cornuchuan Plains, first at Lampar (Oxori). Fishers reported the deaths to their fishers' groups, and local media reported them, at first as an effect of the hurricane. On Day 28 a second storm drove contaminated water into the Ira'ma Strait and the Cornucha Narrows, reaching Ira'mas (Ha'pas) and Po-Kaya (Morokhar).
15. After the second storm, with shellfish still dying, the Southern Plains Fishers' and Shellfish Growers' Association sent samples from Po-Kaya to the Cornuchuan Plains Agricultural University. The University's results, which found metal-bearing fine particles matching nodule material, were sent to the Secretary-General. The Secretary-General required PSSR to suspend operations. PSSR's inspection then found the cracked return line, and the discharge was stopped on Day 42. By that day, contamination had reached Baia-Fa (Morokhar).
16. On Day 49 a third storm carried resuspended sediment into Lake Haida, reaching Acio (Kotos) and the fishing grounds of the Beli fishers on the lake's north-eastern shore. On Day 56 the contamination reached Tamsk (Ölafen).
17. By Month 6, black mud lay in the Cornucha Narrows and Lake Haida.
18. The Mokeng River ran clean, but the migratory trout run up the Mokeng failed, and the Ghani and Kotos communities along the river and in its Saden headwaters lost their trout fishery.
IV. BASIS OF RESPONSIBILITY
19. Pursuant to Article 37(1) of the MCLS, PSSR is responsible for damage arising out of wrongful acts in the conduct of its operations, as particularized in each count below.
20. Pursuant to Article 37(2) of the MCLS, ISAM is responsible for damage arising out of wrongful acts in the exercise of its powers and functions, as particularized in each count below.
21. The Office notes that the share of responsibility borne by each Respondent is a live question in this case, including how far the acts or omissions of each contributed to the harm described above, and this Application does not resolve that question in advance of trial.
V. THE COUNTS
COUNT 1 — Failure to Prevent Serious Harm to the Marine Environment
(MCLS Articles 16 and 17; responsibility under MCLS Article 37)
22. The Office repeats and incorporates paragraphs 1 through 21.
23. Particulars — PSSR:
(a) PSSR's environmental impact statement and monitoring plan addressed the return of water and sediment at depth, and its monitoring buoys were positioned to detect a plume at depth, not a discharge at the surface.
(b) The return line was not fitted with a flow or pressure alarm.
(c) As Hurricane Yolanda approached, PSSR left the riser connected, as its emergency response plan allowed for the storm then forecast.
(d) Hurricane Yolanda cracked the return line as well as rupturing the riser.
24. Particulars — ISAM:
(a) The Commission reviewed PSSR's plan of work within the shortened period on the basis of the information submitted by PSSR, and obtained no independent assessment.
(b) The plan of work was deemed approved without a decision of the Council.
(c) No standards for the design of risers, return lines and production vessels, including their capacity to withstand extreme weather, had been adopted.
(d) The coastal communities likely to be affected, including the original inhabitants of the Cornuchuan Plains, were not consulted before the plan of work was approved.
25. By these acts and omissions, PSSR and ISAM each failed to take the measures required to prevent serious harm to the marine environment from activities at Block C, and the discharge from the return line caused the harm described in paragraphs 14 through 17.
COUNT 2 — Failure to Detect, Warn and Respond
(MCLS Articles 18 and 19; responsibility under MCLS Article 37)
26. The Office repeats and incorporates paragraphs 1 through 21.
27. Particulars — PSSR:
(a) After Hurricane Yolanda, PSSR inspected and repaired the riser but did not inspect the return line before resuming production.
(b) PSSR reported the event to the Secretary-General as a "contained sediment incident."
(c) PSSR's monitoring did not detect the discharge from the return line at any time before Day 42.
(d) The discharge from the return line continued from the resumption of production until Day 42, and was found only after ISAM required PSSR to suspend operations.
28. Particulars — ISAM:
(a) No inspector was sent to the Green Dawn after the Secretary-General received PSSR's report.
(b) The Secretary-General did not notify the members of the Council or the States likely to be affected.
(c) The Secretary-General confirmed the incident closed on the basis of PSSR's follow-up reports.
(d) ISAM took no further step to verify the condition of PSSR's equipment, or to suspend or adjust PSSR's operations, until the University's results were brought to it.
29. By these acts and omissions, PSSR and ISAM each failed to detect, warn and respond to the damage to the marine environment caused by the discharge from the return line, and the discharge continued until Day 42, extending the harm described in paragraphs 14 through 17.
COUNT 3 — Misleading Representations in Licensing
(MCLS Articles 32(4) and 34(4); responsibility under MCLS Article 37)
30. The Office repeats and incorporates paragraphs 1 through 21.
31. Particulars — PSSR:
(a) PSSR presented its application as the "Clean Energy Rare Earth Project" and requested review under the expedited procedure for strategic minerals for reconstruction.
(b) The nodules recovered from Block C contained a low proportion of rare earth elements. Most of the value recovered lay in nickel, copper, cobalt and manganese.
32. Particulars — ISAM:
(a) The Secretary-General determined, on the basis of the application, that it was eligible for expedited review.
(b) The Commission reviewed the application under the expedited procedure throughout and did not return it to standard review.
33. By these acts and omissions, PSSR made, and ISAM accepted, representations about the nature and composition of the resources of Block C that were misleading, and the shortened review described in Count 1 followed.
COUNT 4 — Harm to Inland Communities
(MCLS Articles 13 and 37(4))
34. The Office repeats and incorporates paragraphs 1 through 21, and the particulars of Counts 1 and 2.
35. Particulars — PSSR:
(a) The acts and omissions of PSSR particularized in Counts 1 and 2 led to the contamination of the Cornucha Narrows and Lake Haida described in paragraphs 14 through 17.
(b) In the following migration season (Month 6), the migratory trout run up the Mokeng River failed.
36. Particulars — ISAM:
(a) The acts and omissions of ISAM particularized in Counts 1 and 2 led to the contamination of the Cornucha Narrows and Lake Haida described in paragraphs 14 through 17.
(b) In the following migration season (Month 6), the migratory trout run up the Mokeng River failed.
37. By these acts and omissions, PSSR and ISAM each caused the failure of the trout run and the loss of the fishery on which the Ghani and Kotos communities of the Mokeng River and its Saden headwaters depended.
VI. RELIEF SOUGHT
The Office requests that the Chamber:
(a) find each Respondent responsible on each count;
(b) determine the share of responsibility borne by each Respondent; and
(c) establish the principles of reparation in accordance with Article 10 of REEF, including the forms of reparation, such as restoration of the marine environment, compensation and monitoring; the communities, peoples and persons entitled to reparation; and the share to be borne by each Respondent, with reparation to be paid into the Restoration and Victims' Fund.
Respectfully submitted,
THE OFFICE OF THE PROSECUTOR
High Court of Mir