Decision ID: 003500

In March 2008 the 1992 Fund Executive Committee noted that the Court of Appeal in Poitiers had in February 2008 rendered a judgement in respect of a claim by a company selling water sport equipment for losses suffered in 2000 as a result of the Erika incident in its dual activity of sales to individual tourists and to sailing schools in Vendée. It was noted that the 1992 Fund had approved the claim for lost sales to tourists, but had rejected the claim for lost sales to sailing schools on the grounds that such sales related to services provided to other businesses in the tourism industry but not directly to tourists (so called ‘second degree’ claims) and that, for this reason, there was not a sufficient link of causation between the contamination and the alleged loss. The Committee noted that in its judgement in September 2005 the Commercial Court in La Roche sur Yon Court had stated that it was not bound by the 1992 Fund’s admissibility criteria and that it was for the Court to interpret the concept of ‘pollution damage’ in the 1992 Conventions and to apply it to the individual claim by determining whether there was a sufficiently close link of causation between the event that lead to the damage (‘le fait générateur’) and the losses suffered according to the criteria of French law. It was noted that the Court had held that there was no doubt that there was a direct link of causation between the contamination caused by the incident and the loss suffered, that the loss could not be doubted and was real, and that for these reasons, the Commercial Court had accepted the claimed amount in its entirety and ordered the Fund to compensate the claimant accordingly. It was recalled that the Committee had decided that the Fund should appeal against the judgement. The Executive Committee noted that the Court of Appeal had stated that national courts had to interpret the notion of pollution damage according to the 1992 Conventions and that in doing so national courts were not bound by the admissibility criteria developed by the Fund, in particular the criteria of non admissibility of so called ‘second degree’ claims. It was noted that the Court of Appeal had considered however that the losses suffered by the claimant in 2000 were recovered in 2001, since some of the sales that would have taken place in 2000 were only postponed until 2001, and had concluded that the claimant had not suffered losses in 2000. It was also noted that the Court of Appeal had accepted the Fund’s assessment of the quantum of the losses in respect of sales to individual tourists.