Liability of administrative agencies or State officials in the marine oil spill incident (Supreme Administrative Court Order No. C.E. 25/2556 and Songkhla Administrative Court Judgment No. E.203/2556)

Abstract

1,443 plaintiffs of fish cage farmers and coastal fishermen were aggrieved and injured in consequence of oil spills into the sea. The plaintiffs were of the opinion that the defendant (Marine Department) neglected the duties of eliminating or controlling water pollution due to the oil spills incident and neglected the duty by allowing the violator's vessel to leave the port without taking action to eliminate or control the pollution caused by the oil spills into the sea or to compensate the public. Therefore, the plaintiffs requested the court to issue a judgment ordering the defendant the payment of damages with interest to the plaintiff and ordering the defendant to perform the duty to restore the community’s environment to its original state, including to establish measures for oil spill prevention and for compensation. Songkhla Administrative Court ruled that the plaintiff has no obligation to eliminate or control the pollution caused by the oil spills into the sea or to charge expenses from the shipowner or the shipowner's agent and did not neglect the duties required by law to eliminate or control pollution caused by the oil spills into the sea. Moreover, the defendant has no liability to compensate the plaintiff. Songkhla Administrative Court dismissed the case and the plaintiff did not appeal against a judgment to the Supreme Administrative Court.

This administrative case analysis analyzes the duties of the defendant in eliminating and controlling pollution caused by oil spills into the sea in accordance with 3 Acts, namely (1) Section 119 bis, Section 120 and Section 204 of the Navigation in the Thai Waters Act, B.E. 2456 (1913) authorized the defendant only to impose a punishment but not to eliminate or control pollution caused by oil spills into the sea (2) Regulations of the Office of the Prime Minister on the Prevention and Elimination of Water Pollution due to Oil, B.E. 2547 (2004) and the National Prevention and Elimination Plan against Water Pollution due to Oil, dated August 6, B.E. 2545 (2002), divides water pollution due to oil into 3 degrees. In this case, which was first-degree oil spill of not more than 20 tons, the defendant therefore has no obligation to eliminate or control the pollution caused by the oil spill into the sea. Nonetheless, 2 of the 3 marine oil spill incidents in early 2022 were second-degree oil spills that domestic government agencies were obligated to undertake under the National Prevention and Elimination Plan against Water Pollution due to Oil. Furthermore, oil spill estimates conducted by Marine Department are always lower than those by private companies. These differences are large enough to determine the obligations of government agencies, hence the Administrative Court should take this into consideration when inquiring into facts and (3) Section 96 paragraph one of the Enhancement and Conservation of National Environmental Quality Act, B.E. 2535 (1992), which Songkhla Administrative Court ruled in this case as a guarantee of Strict Liability and Polluter-Pays Principle, wherefore the government agency is not liable to pay compensation or damages caused by the negligence of the owner or the possessor of the pollution source. But in fact, the Polluter-Pays Principle stipulates that the polluter must bear the cost of operation to eliminate and control pollution and to restore the environment to the appropriate condition, for this reason, the compensation or damages to which the owner or possessor of the point source of pollution is liable shall include all the expenses actually incurred by the government service for the clean-up of pollution arisen from such incident under Section 96 paragraph one and paragraph three. In addition, Section 67 paragraph two and paragraph three of the Constitution of the Kingdom of Thailand B.E. 2550 (2007) guarantees the right of a community to take legal action against a government agency, State agency, State enterprise, local government organization or other State authority which is a juristic person to enforce the performance of duties in the preservation and exploitation of natural resources and biological diversity and in the protection, promotion and conservation of the quality of the environment, but this case intriguingly separated the application into 1,443 individual cases.