Getting ripped off again

It will be a year since the USS Guardian minesweeper ran aground in the restricted waters of Tubbataha Reef in Palawan on January 17 last year. It took several weeks before the ill-fated vessel was extricated from the corals after being dismantled piece by piece. It left quite a huge damage to the protected area in this UNESCO World Heritage Site.

 The United States government has not answered the petition before the Supreme Court (SC) for the prosecution of two US Navy officials and crew of an American Navy minesweeper and fines for the damage to Tubbataha Reef. This was after a group led by Bishop Pedro Arigo of Puerto Princesa, Palawan filed in April last year for a Writ of Kalikasan seeking the prosecution as well payment of higher amount of fine from the US government.

Under Philippine laws, the government charges around US$300 per square meter of damage. However, petitioners said it will be difficult to put a financial cost on the environmental damage to the reef that could take a lifetime to recover. The writ petitioners were seeking to raise the amount of fine 12 times the initial estimate of damage on the reef as computed by the Philippine government.

 Thankfully, however, the damage to Tubbataha Reef was not as extensive as previously feared when the last piece of the entire vessel was finally pulled out from the site of the accident.

In June last year, the SC gave due course to this petition and sent the US Embassy in Manila a “Minute Resolution” purportedly requiring them to answer the writ of Kalikasan petition filed by Bishop Arigo and his co-petitioners. Named respondents in this petition were US Seventh Fleet commander Scott Swift and USS Guardian commanding officer Mark Rice.

 In July last year, the Office of the Solicitor General (Sol-Gen) had submitted a consolidated answer on behalf of Malacañang, military officials and several Cabinet members who were also named respondents in the case. Our own government lawyers asked the SC to dismiss the petition and deny the relief sought simply because the incident was a “fait accompli (an irreversible situation).”

Moreover, the Sol-Gen argued the USS Guardian “has the right of innocent passage” and that the Visiting Forces Agreement (VFA) should not be raised as an issue in this case, citing there was no joint military exercise when the incident took place.

 But the High Court’s “Minute Resolution” to the US government was more like a “request” than a judicial directive. It was sent to the US embassy then headed by ambassador Harry Thomas Jr. Newly installed US ambassador Philip Goldberg replaced him last month.

At the outset, the petition was seen as shot in the dark, or in local parlance, “suntok sa buwan.” It could not prosper as a test case because the US can always invoke international treaties, or even invoke our own domestic laws, or worse, just ignore it.

 But as a responsible member of the international community, the US government obviously cannot afford to be seen as evading its duty and obligations, especially in this case where American naval officers and men were found negligent in the stewardship of their ship.

A US Navy report and findings on the incident released last June indicated visual and electronic cues as well as alarms were disregarded and a general “lack of leadership” led to the grounding of USS Guardian. In a 160-page report, US Pacific Fleet Adm. Cecil Haney noted the crew of the ship had “failed to adhere to prudent, safe, and sound navigation principles” that could have prevented the incident.

An Avenger-class ship, the USS Guardian just completed a port call in Subic Bay and was en route to Indonesia and then to East Timor for a training exercise. The ship went off course about 128 kilometers southeast of Palawan. The oak-shelled minesweeper snagged the corals and got stuck at the reefs. In his investigation into the incident, Haney noted the tragic mishap was wholly preventable.

Haney found out the ship’s watch team had disregarded visual cues, electronic cues and alarms in the hours leading up to the grounding. But due to poor voyage planning, poor execution, combined with unfortunate circumstances, it did happen. Haney, however, was not clear on what possible sanctions would be imposed on the officers and crew held responsible for the mishap.

If US Naval rules of discipline are applied, Rice and several other high-ranking officers of the USS Guardian will never be able to run a ship ever again. Even if they choose to remain in the American Navy, if they were not booted out yet, they can kiss goodbye their career in the US Navy because they would not be given any ship to steer. They will be forever haunted by the thoughts of the dismantled pieces of the USS Guardian that have become either replacement parts of other ships or now lie at the junkyard of the US 7th Fleet home base in Yokosuka, Japan.

As for the fines, the Department of Foreign Affairs (DFA) has been representing our claims before the US government, in particular with the Naval authorities of the US 7th Fleet. Speaking for the US 7th Fleet, Vice Admiral Swift issued a statement immediately after the incident last year: “We know the significance of the Tubbataha Reefs Natural Park and its importance as a World Heritage Site. Its protection is vital, and we take seriously our obligations to protect and preserve the maritime environment.”

Both parties were already in the process of final settlement for the incident. But the “third party” petition on the writ of Kalikasan aborted the whole deal. So we can’t blame the US government for reportedly withholding payment of the P58 million ($1.3 million) to compensate for the actual damage at the reef.

 Nonetheless, the US is reportedly ready for pay for the damage. But it turns out the Philippines has to make first an official request. In their argument against the writ of Kalikasan, the Sol-Gen insisted the SC cannot intervene in the process involving damages and claims against the US government because claims processing resides exclusively with the executive department.

 Then what’s keeping P-Noy, the country’s Chief Executive, from putting this official claim before the US government?

Let it not be said the Tubbataha Reefs are getting ripped off again.