Enhancing the civil liability system after 'Gurita' tragedy
Enhancing the civil liability system after 'Gurita' tragedy
By Peter A. Bell
SALATIGA (JP): As details emerge from investigations into the
tragic sinking of the ferry Gurita off the Aceh coast on Jan. 19,
it seems increasingly clear that negligent behavior on the part
of some persons in charge of the ship was responsible for its
loss.
Even as families of those killed in the sinking begin to deal
with the realization that their loved ones will never return,
efforts are underway to avoid or to affix blame for the disaster.
Already, completely contradictory versions of the sinking are
coming from government officials and from the Aceh police, who
are investigating the sinking independently because they lost
several of their fellow officers in the sinking.
Faced with such conflicting assessments of fault -- common
everywhere in the world after such a catastrophe -- The Jakarta
Post wisely called in a Feb. 5 editorial for a thorough
investigation of the matter by an independent entity. The
attribution of responsibility for such massive loss of life is
important to the nation as a whole, as well to those who lost
family and friends on the Gurita.
Much more can come, however, from this tragedy, both for its
victims and for all of Indonesia. Having focused the attention of
this maritime nation on critical issues or transport safety, the
Gurita disaster can be an impetus for the creation of a system
which will reduce accidental death and injury everywhere in the
archipelago.
Such a safety-enhancing system already exists in Indonesia.
The Civil Code already permits persons injured by the negligence
of others to sue them for the damage caused to the victims.
Properly implemented, this civil liability law can help immensely
to make Indonesia a much safer place, not only for those who
crowd onto ships, but also for all its citizens.
A well functioning civil liability system would do this
principally in two ways. First, it would affix responsibility for
accidents involving serious injury or death. Second, it would
force those entities responsible for the accidents to pay
substantial compensation to those injured or killed by their
wrongdoing.
Facing the threat that they might actually have to pay for the
harm that their unreasonable behavior may cause, ferry operators,
bus companies and other risky enterprises would quite naturally
prefer to commit some of their financial and human resources to
reducing the chances that accidents will occur.
If such enterprises would not take reasonable safety
precautions, civil liability judgments would soon either put them
out of business, or force them to price their products or
services significantly higher than those of their safer
competitors. Either way, more dangerous enterprises would rather
rapidly be supplanted by those which pay more attention to
safety.
In effect, a civil liability system creates a national network
of safety "police." In some ways, they are like the Aceh police
who seem to be uncovering more of the realities about the Gurita
accident: they are people who are determined to investigate an
accident thoroughly and to see to it that the persons or
enterprise responsible for the accident pay for the wrong they
have done. As with the Aceh police, it is the persons close to
the victims, or the victims themselves, who activate the civil
liability system's "policing" function.
While the civil liability system -- lawsuits against injurers
for money damages by an accident's victims -- is set in motion by
these persons with the strongest interest in accidental injuries,
its sanctions are imposed only after careful, thorough
investigation and independent decision-making. Moreover, its
sanctions -- money damages -- depend on the nature and extent of
harm done in a particular situation, as decided by a neutral
fact-finder who has heard full evidence about that harm. No civil
liability is imposed unless a court finds that the evidence about
an accident shows that it was caused by the defendant enterprise
or person's wrongdoing.
All this safety policing and investigation will take place
without any addition to Indonesia's government bureaucracy and
without any more costs to the public. All that is needed are
private lawyers and law firms, with sufficient knowledge and
courage to provide representation to injury victims and their
families in civil liability lawsuits against wrongdoing
enterprises. Paid for their work from the proceeds of successful
victim losses, such lawyers will quickly develop the kind of
expertise and initiative necessary for victims to develop
effective evidence about the causes of accidental injury.
Of course, the Indonesian civil liability system must be
strengthened if it is to provide these investigative and policing
services with respect to accidents. Procedural rules must be
developed which permit both the injured and the accused injurer
to discover as fully as possible what happened to cause the
accident. The court decision allocating responsibility for the
injuries must be made carefully and independently.
Until Indonesian citizens and lawyers gain more confidence in
judges' freedom from the undue influence of powerful interests,
the civil liability system might wisely opt to make use of the
sort of jury system at work in several other countries. A jury
system turns over the job of deciding the facts about a
particular accident to a jury of 6-12 ordinary citizens, chosen
largely at random. That group hears all the evidence relevant to
the particular lawsuit, decides what really happened, and then
disbands. Researchers in countries using the jury system have
found juries to be unusually competent decision-makers. Moreover,
juries are notoriously difficult to corrupt, due to their one-
time decision-making status.
With a well-functioning civil liability system in place, the
safety of Indonesia's ferry passengers, bus riders, product users
and the like could no longer be a matter of indifference to those
with the power to affect their lives. Indonesian citizens
throughout the archipelago could proceed more securely with their
lives, knowing that each of them has the power to call to account
those whose unreasonable behavior subjects them to harm.
If the Gurita disaster should lead to the legacy of a stronger
civil liability system in Indonesia, its passengers' deaths will
not have been completely in vain.
The writer is a Visiting Professor of Law at Satya Wacana
Christian University in Salatiga on leave from Syracuse
University in the United States.