Decision ID: 003493

In March 2008 the 1992 Fund Executive Committee took note of a decision rendered by the Federal Court of first instance in New York in an action taken by the Spanish State against the American Bureau of Shipping (ABS), the classification society of the Prestige, requesting compensation for all damage caused by the incident. It was noted that the Court had considered that ABS fell within the category of ‘other persons’ performing services for the ship under Article III.4(b) of the 1992 Civil Liability Convention and had held that under Article IX of the Convention Spain could only make claims against ABS in its own courts and that for these reasons the Court had dismissed the Spanish State’s claim. The Executive Committee noted that the Spanish State had appealed against the decision and had requested that the 1992 Fund should file an amicus curiae brief in support of the Spanish State’s appeal. The Committtee noted that the Director was of the opinion that decison taken by the New York Court could well be criticised, since it appeared questionable whether a classification society which carried out a technical survey of the ship should be considered falling under the provision of Article III.4(b.). It was noted that in a similar situation the Criminal Court in Paris in the Erika trial had recently come to the opposite conclusion, i.e. that the classification society having surveyed the Erika could not be considered to fall under that provision. The Committee further noted that the Director was of the view that other considerations should also be taken into account when deciding whether the Fund should file such a brief, namely whether it would be appropriate for the 1992 Fund as an intergovernmental organisation to get involved in legal proceedings in a non-Member State which essentially addressed issues outside the scope of the 1992 Civil Liability Convention, whether it would be appropriate for the 1992 Fund to get involved in legal proceeding not directly related to the fulfilment of its core function under the 1992 Conventions, i.e. the payment of compensation to victims of oil pollution incidents in Member States, that the decision had been taken in a lower court which would probably make the decision of little relative value as a precedent for future cases to be judged in a Member State on the basis of the 1992 Conventions, and that filing such a brief would represent a diversion from the Committee’s decision at its 26th (October 2004) session not to take recourse action against ABS in the United States. For these reasons, the Committee decided that the 1992 Fund should not file an amicus curiae brief.