Decision ID: 003524

In October 2008 the 1992 Fund Executive Committee noted that in May 2008 the Commercial Court in Lorient had rendered a judgement in respect of a claim by a company selling frozen and vacuum-wrapped food products to restaurants for economic losses allegedly suffered as a result of the Erika incident. It was noted that the 1992 Fund had rejected the claim on the grounds that the claimant did not deal directly with tourists but dealt instead with other businesses (so called ‘second degree’ claims) and that the claimant had not proved the existence of a sufficiently close link of causation between the loss and the pollution that arose from the Erika incident. It was also noted that the Court had appointed an expert to determine the possible losses suffered by the claimant and whether there was a causual link between the losses and the incident. It was further noted that in his report the court expert had indicated that according to his investigations the Erika incident was not the only cause of the economic losses suffered by the claimant. The Committe noted that the Court had made a statement that it was not bound by the Fund’s admissibility criteria and that it was for the Court to interpret the concepts of ‘pollution damage’ and ‘preventive measures’ in the 1992 Civil Liability and Fund Conventions and to apply them in each individual case. It was noted that the Court had stated that the claimant did not provide services directly to tourists but provided services to other businesses in the tourism sector and that the claimant’s activity had suffered losses since 1998, i.e. before the Erika incident. It was noted that the Court had considered that the possible losses suffered by the claimant were of an indirect character, that the difficulty in selling the food products to the restaurants could not be considered with certainty as a direct consequence of the pollution but could be linked to other causes. The Committee noted that the Court had concluded that the claimant had not proved to have suffered losses as a direct consequence of the Erika incident and that the Court had for that reason had rejected the claim.