SHIPPING AND LAW | The French disconnection

Anne Sophie Avé | LLOYD’S LIST

ON MARCH 30, the French Court of Appeal made its decision public on the 10-year-long Erika case.

The court ruled that the French pollution Act dated July 5, 1983, complies with the Marpol Convention, as per the first court’s decision. Consequently, the new decision confirms that national legislation applies over international conventions.

The court of appeal may have reached the same conclusion but it used a different argument. It rightly argued that the two texts dealt with the same issues: voluntary and accidental oil spills. But it ignored Marpol’s exemptions provisions.

For the record, when the French law was voted in 1983, members of parliament recognised they doubted it was compatible with Marpol. “Marpol will have to be amended to comply with the French law,” they had concluded.

The French judge in the appeal case also chose to ignore the provisions of the United Nations Convention on the Law of the Sea restricting a state’s competency to its exclusive economic zone, where the accident occurred. One remembers that the French Loi Perben Act of 2004 even enabled the imprisonment of foreign seafarers if caught. After four years of struggle, Armateurs de France managed in 2008 to amend this rule in accordance to Unclos, in exchange for a dramatic increase of fines for oil spills.

As expected, the French appeal decision confirms the sentences against the shipowner, the ship manager and the classification society. Their responsibility in the accident was both objective and legal. The sentence therefore was only fair.

Virtuous shipowners, conscientiously applying the safety and security rules, bear heavy costs that reckless competitors do not. An Organisation for Economic Co-operation and Development study evaluated the competitive loss at around 40% between compliers and non-compliers. This competitive loss puts compliers at a disadvantage.

Appeal judges rejected all indictments against the charterer, Total. The judges stuck to their first opinion though, that vetting, ie inspecting the ship to check whether it is adapted to the intended cargo, is the shipper’s responsibility, be it a voluntary process. The paradox is that not checking would have been faulty as well. To vet or not to vet, that is now the charterer’s dilemma.

With its very personal interpretation of Marpol and its penalisation of vetting procedures, the appeal court means to create the rules instead of applying them. In this respect, reciprocity suggests, and threatens, that foreign courts might do the same. If shipping, although naturally international, becomes submitted to the national jurisdiction of the quickest complainer, the world of commerce sails back to the Middle Ages.

Finally, Erika ’s master, Karun Mathur, was released from all penal charges although the court considers he shares civil liability. In violation of all international conventions, he spent several weeks in jail after the accident and to date has not been compensated for this illegal detention.

With regards to civil liability, the court also ruled out the benefit of the international convention on civil liability for oil pollution damage for the shipmanager and the classification society. These culprits will not benefit from CLC’s provisions restricting liability to the owner only. Yet the charterer, Total, will: the damage did not result from the company’s personal act or omission, nor did it cause the damage, intentionally or recklessly.

This is a notable change from the first decision.

Sadly, the concept of “environmental prejudice” that had appeared in the first decision was not tackled in appeal.

The so-called “pure environmental prejudice”, is defined as “an irremediable damage directly caused to nature aside from any human particular interest but affecting a collective legitimate interest”.

The court refers to a case law from the European Court of Human Rights (Lopez Ostra , December 9, 1994) and provisions from the preamble to the European Landscape Convention of 2000, both creating the concept of “the pricing of nature”. As a result the French judge considered that damage to nature, be it remediated, could be compensated to whom it may belong: a happy few non-governmental organisations wise enough to have claimed for it.

Should such a prejudice be recognised, it should be at international level. Reciprocity here again adds to the threat of seafarers prosecuted everywhere in the world, the danger of prosecution based on non-existing laws.

ANNE SOPHIE Avé is director general of Armateurs de France, the French shipowners’ association

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