Enhancing the civil liability system after 'Gurita' tragedy<\/p>\n
By Peter A. Bell<\/p>\n
SALATIGA (JP): As details emerge from investigations into the
\ntragic sinking of the ferry Gurita off the Aceh coast on Jan. 19,
\nit seems increasingly clear that negligent behavior on the part
\nof some persons in charge of the ship was responsible for its
\nloss.<\/p>\n
Even as families of those killed in the sinking begin to deal
\nwith the realization that their loved ones will never return,
\nefforts are underway to avoid or to affix blame for the disaster.
\nAlready, completely contradictory versions of the sinking are
\ncoming from government officials and from the Aceh police, who
\nare investigating the sinking independently because they lost
\nseveral of their fellow officers in the sinking.<\/p>\n
Faced with such conflicting assessments of fault -- common
\neverywhere in the world after such a catastrophe -- The Jakarta
\nPost wisely called in a Feb. 5 editorial for a thorough
\ninvestigation of the matter by an independent entity. The
\nattribution of responsibility for such massive loss of life is
\nimportant to the nation as a whole, as well to those who lost
\nfamily and friends on the Gurita.<\/p>\n
Much more can come, however, from this tragedy, both for its
\nvictims and for all of Indonesia. Having focused the attention of
\nthis maritime nation on critical issues or transport safety, the
\nGurita disaster can be an impetus for the creation of a system
\nwhich will reduce accidental death and injury everywhere in the
\narchipelago.<\/p>\n
Such a safety-enhancing system already exists in Indonesia.
\nThe Civil Code already permits persons injured by the negligence
\nof others to sue them for the damage caused to the victims.
\nProperly implemented, this civil liability law can help immensely
\nto make Indonesia a much safer place, not only for those who
\ncrowd onto ships, but also for all its citizens.<\/p>\n
A well functioning civil liability system would do this
\nprincipally in two ways. First, it would affix responsibility for
\naccidents involving serious injury or death. Second, it would
\nforce those entities responsible for the accidents to pay
\nsubstantial compensation to those injured or killed by their
\nwrongdoing.<\/p>\n
Facing the threat that they might actually have to pay for the
\nharm that their unreasonable behavior may cause, ferry operators,
\nbus companies and other risky enterprises would quite naturally
\nprefer to commit some of their financial and human resources to
\nreducing the chances that accidents will occur.<\/p>\n
If such enterprises would not take reasonable safety
\nprecautions, civil liability judgments would soon either put them
\nout of business, or force them to price their products or
\nservices significantly higher than those of their safer
\ncompetitors. Either way, more dangerous enterprises would rather
\nrapidly be supplanted by those which pay more attention to
\nsafety.<\/p>\n
In effect, a civil liability system creates a national network
\nof safety \"police.\" In some ways, they are like the Aceh police
\nwho seem to be uncovering more of the realities about the Gurita
\naccident: they are people who are determined to investigate an
\naccident thoroughly and to see to it that the persons or
\nenterprise responsible for the accident pay for the wrong they
\nhave done. As with the Aceh police, it is the persons close to
\nthe victims, or the victims themselves, who activate the civil
\nliability system's \"policing\" function.<\/p>\n
While the civil liability system -- lawsuits against injurers
\nfor money damages by an accident's victims -- is set in motion by
\nthese persons with the strongest interest in accidental injuries,
\nits sanctions are imposed only after careful, thorough
\ninvestigation and independent decision-making. Moreover, its
\nsanctions -- money damages -- depend on the nature and extent of
\nharm done in a particular situation, as decided by a neutral
\nfact-finder who has heard full evidence about that harm. No civil
\nliability is imposed unless a court finds that the evidence about
\nan accident shows that it was caused by the defendant enterprise
\nor person's wrongdoing.<\/p>\n
All this safety policing and investigation will take place
\nwithout any addition to Indonesia's government bureaucracy and
\nwithout any more costs to the public. All that is needed are
\nprivate lawyers and law firms, with sufficient knowledge and
\ncourage to provide representation to injury victims and their
\nfamilies in civil liability lawsuits against wrongdoing
\nenterprises. Paid for their work from the proceeds of successful
\nvictim losses, such lawyers will quickly develop the kind of
\nexpertise and initiative necessary for victims to develop
\neffective evidence about the causes of accidental injury.<\/p>\n
Of course, the Indonesian civil liability system must be
\nstrengthened if it is to provide these investigative and policing
\nservices with respect to accidents. Procedural rules must be
\ndeveloped which permit both the injured and the accused injurer
\nto discover as fully as possible what happened to cause the
\naccident. The court decision allocating responsibility for the
\ninjuries must be made carefully and independently.<\/p>\n
Until Indonesian citizens and lawyers gain more confidence in
\njudges' freedom from the undue influence of powerful interests,
\nthe civil liability system might wisely opt to make use of the
\nsort of jury system at work in several other countries. A jury
\nsystem turns over the job of deciding the facts about a
\nparticular accident to a jury of 6-12 ordinary citizens, chosen
\nlargely at random. That group hears all the evidence relevant to
\nthe particular lawsuit, decides what really happened, and then
\ndisbands. Researchers in countries using the jury system have
\nfound juries to be unusually competent decision-makers. Moreover,
\njuries are notoriously difficult to corrupt, due to their one-
\ntime decision-making status.<\/p>\n
With a well-functioning civil liability system in place, the
\nsafety of Indonesia's ferry passengers, bus riders, product users
\nand the like could no longer be a matter of indifference to those
\nwith the power to affect their lives. Indonesian citizens
\nthroughout the archipelago could proceed more securely with their
\nlives, knowing that each of them has the power to call to account
\nthose whose unreasonable behavior subjects them to harm.<\/p>\n
If the Gurita disaster should lead to the legacy of a stronger
\ncivil liability system in Indonesia, its passengers' deaths will
\nnot have been completely in vain.<\/p>\n
The writer is a Visiting Professor of Law at Satya Wacana
\nChristian University in Salatiga on leave from Syracuse
\nUniversity in the United States.<\/p>",
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