Decision ID: 003702

In June 2010 the 1992 Fund Executive Committee noted the judgement rendered by the Criminal Court of Appeal in Paris in March 2010 in the criminal actions brought in respect of the Erika incident, following appeals against the judgement delivered by the Criminal Court of first instance in Paris in January 2008.

The Committee noted that the Court of Appeal had confirmed the judgement by the Criminal Court of first instance which had held the following parties criminally liable for the offence of causing pollution: the representative of the registered owner of the Erika (Tevere Shipping), the president of the management company (Panship Management and Services Srl), the classification society Registro Italiano Navale (RINA) and Total SA and that the Court of Appeal had confirmed the fines imposed by the Criminal Court of first instance.

Regarding the civil liabilities the Executive Committee noted that the Court of Appeal had ruled as follows:

– The representative of the registered owner of the Erika was an ‘agent of the owner’ as defined in Article III.4(a) of the 1992 Civil Liability Convention and that, although he was, as such, theoretically entitled to benefit from the channelling provisions of the Convention, he had acted recklessly and with knowledge that damage would probably result, which deprived him of protection in the circumstances. The Court of Appeal had thus confirmed the judgement on his civil liability.

– The president of the management company (Panship) was the agent of a company that performed services for the ship (Article III.4(b))and was as such not protected by the channelling provisions of the 1992 Civil Liability Convention.

– The Court decided that the classification society (RINA) could not be considered as a person ‘who performs services for the ship’ according to the definition in Article III.4(b). The Court held that, in issuing statutory and safety certificates, the classification society had acted as an agent of the Maltese State (the flag State). The Court also held that the classification society would have been entitled to immunity of jurisdiction, as would the Maltese State, but in the circumstances RINA was deemed to have renounced such immunity by not having invoked it earlier in the proceedings.

– The Court of Appeal considered that Total SA was ‘de facto’ the charterer of the Erika and could therefore benefit from the channelling provision of Article III.4(c) of the 1992 Civil Liability Convention, since the imprudence committed in its vetting of the Erika could not be considered as having been committed with the intent to cause pollution damage, or recklessly and with knowledge that such damage would probably result. The Court thus held that Total SA could benefit from the channelling provisions in the 1992 Civil Liability Convention and therefore did not have civil liability. The Court of Appeal also held that the voluntary payments made by Total SA to the civil parties, including to the French Government following the judgement of the Criminal Court of first instance were final payments that could not be recovered from the civil parties.

The Executive Committee noted that in its judgement the Court of Appeal had accepted not only material damages (clean-up, restoration measures and property damage) and economic losses, but also moral damage resulting from the pollution, including loss of enjoyment, damage to reputation and brand image and moral damage arising from damage to the natural heritage.

The Committee also noted that the Court of Appeal had accepted the right to compensation for pure environmental damage, i.e. damage to non-marketable environmental resources that constitute a legitimate collective interest, and that the Court had considered that it was sufficient that the pollution touched the territory of a local authority for such authority to be able to claim for direct or indirect damage caused to the authority by the pollution. It was further noted that the Court of Appeal had awarded compensation for pure environmental damage to local authorities and environmental organisations.

The Executive Committee noted that some fifty parties, including the representative of Tevere Shipping, RINA and Total SA, had appealed against the judgement to the French Supreme Court (Court of Cassation).