Seeking Justice Overseas: The Caledonian Sky Incident

On March 4, 2017, a British-owned cruise ship the Caledonian Sky ran aground and caused damage to the coral reefs in Raja Ampat, West Papua. This incident devastating the total area of 13,532.6 square meters. The damages to the marine park’s ecosystem caused by this incident was estimated at around US$18.6 million.

Perhaps, the indigenous community of Raja Ampat would be the most impacted by this incident. In fact, the head of Yembuba village has expressed the sadness of its people, saying that the marine area is crucial to the livelihood of the community. The water has been protected by the customary law– known as the Sasi–from illegal fishing and other damaging activities.

The owner of the ship has acknowledged that it will consider a ‘fair and realistic settlement”. Based on a survey carried out by the government and the insurance company, both parties have reached an understanding on the total area of damaged reefs.

Despite the efforts by the government to hold the ship’s operator to compensate for the damages it caused, settlement of this incident might not be an easy task. There are a number of disadvantages on the government side that need to be considered seriously.

First, the Caledonian Sky was released to leave the Indonesian waters just after the incident took place. Second, the operator of the ship–the Nobel Caledonia–is a foreign company based in London. Third, the insurance company–which also a foreign company–may come up with its own calculation of compensation, lesser than the government’s expectation.

The worse scenario is that the government would need to bring this incident to a court for settlement. Considering the three issues above, perhaps the most appropriate place to settle the dispute would be the court where the company is based, or where the ship is registered.

Seeking justice overseas is not new for communities impacted by corporate activities in Indonesia. In December last year, a class action lawsuit was brought by 13.000 Indonesian fishermen and seaweed farmers to Australian court against PTTEP Australasia–the operator of Montara oil drilling facilities–for polluting the waters.

Likewise, a case was brought by Tom Beanal–a leader of Amungme tribe in Papua–against Freeport McMoran Inc. to the US court, alleging that the company operation contribute to the genocide of indigenous people. Another case was brought in US court by eleven villagers for allegation of complicity in human rights abuses by Exxon Mobil Corp. in Aceh.

There are a number of reasons why seeking justice overseas is more preferable than pursuing the company’s responsibility in the local court. First, the alleged company is based in a foreign countries, and most of its assets are located in its home country.

It would be difficult to persuade foreign company which has no assets or business interest in Indonesia to appear before the local court. Even if the court decide to examine the case in the absent of the alleged company, the execution of Indonesian court’s judgment in a foreign jurisdiction may be burdensome. These perhaps the main reasons why the victims of Montara oil spill brought their case to Australian court.

Second, litigating in foreign jurisdiction provide a more predictable results and justice for the victims of corporate abuse. This is because, the home countries of multinational companies have a relatively better rule of law conditions, and more advanced liability laws.

Indeed, Indonesian laws may be sufficient to adjudicate corporate misconduct. However, past experiences showed that it is not easy to hold company liable for environmental damages and the abuse of community rights. For instance, in the Lapindo mudflow case, the court found that the disaster was not caused by the company’s fault.

Although it is also true that the local communities have been successful in a number of cases, the execution of the court judgment remain problematic. This situation happens in the case of cement plant in Kendeng. The Central Java authority seems to disregard the Supreme Court judgment which revokes the environment permit.

Apart the above advantages, a number of challenges may be found when seeking justice abroad. The most common challenge is the unfamiliar law and procedures. However, it would not be a problem for the Indonesian government, as it may seek assistance from the lawyers and legal experts. Some reputable law firms in foreign jurisdiction might even offer a no win-no pay scheme.

Similarly, litigation process in a foreign court may take some period of time. But this situation is also common when litigating in Indonesian court. Rather than waiting for the company to offer a settlement, a litigation threat would force the company to seriously consider the government’s claims.

To end up, the government has failed to hold the operator of Montara platform liable for polluting Indonesian water. It was after 7 years since the pollution took place that the fishermen and seaweed farmers take the initiative to bring their case to foreign court.

Learning form this mistake, the government must have several plans in the Caledonian Sky incident case. The company is in a better position to delay the settlement process. It is time for the government to consider the option to file a claim against Nobel Caledonia in a foreign court.


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