Judicial Review, Oceans

CliMates’ Judicial review – Case n°3: The Erika case

And the birth of the “purely ecological damage”

This article is part CliMates’ Judicial Review.
© Marine Nationale

In this article, let’s have a look back on one of the most important French environmental legal sagas of the past few years: the Erika oil spill. Of special interest is the judgment of the French Cour de Cassation rendered on 25th September 2012.

In 1999, the tanker Erika sank in the French Exclusive Economic Zone (“EEZ”), off the coast of French Brittany, dumping 30,000 barrels of heavy fuel oil into the sea and leading to one of France’s worst environmental disasters.

The United Nations Convention of the Law of the Sea (“UNCLOS”) provides that territorial waters stretch from the baseline of a coastal State out to 12 nautical miles; these waters are regarded as the sovereign territory of the state. The EEZ is an area extending from the end of the territorial waters up to 200 nautical miles from the baselines. The coastal State has special rights over its EEZ regarding the exploration and use of marine resources but it cannot exert its full sovereignty in this zone.

 

©after Proelß

In 2008, the Paris Criminal Court convicted not only the shipowner, but also the Italian company that declared the Erika seaworthy (Rina) and the oil company chartering the tanker (TOTAL).[1] In 2012, the Paris Court of Appeal confirmed the criminal judgment but exempted TOTAL from any civil liability.[2] Indeed, the International Convention on Civil Liability for Oil Pollution Damage (“CLC Convention”)[3] channels all civil liability onto the shipowner. TOTAL seized the Cour de Cassation to contest its criminal conviction.

TOTAL made a bad bet: on 25 September 2012, France’s highest court not only confirmed TOTAL’s criminal conviction but also reversed the second half of the decision and declared TOTAL civilly liable for the damage.

This decision is extremely interesting in many aspects: (i) in the field of law of the sea, it provides an extensive approach to the coastal State powers in its EEZ based on UNCLOS; (ii) the Cour de Cassation provides an example of how to avoid the shipowner channelling system of liability under the CLC Convention; and (iii) it recognised environmental damage as a new head of claim, which overturns traditional French civil liability concepts.

  • The coastal State’s jurisdiction in its EEZ[4]

© Sémhur

 

TOTAL argued that since the ship was not in French territorial waters and it was flying a Maltese flag, French courts did not have jurisdiction.

According to UNCLOS, on the high seas a ship is under the jurisdiction of its flag State,[5] except on rare occasions. Within the EEZ, the coastal State assumes jurisdiction for certain activities but the principle of the exclusive jurisdiction of the flag State is supposed to remain. International courts are relatively strict concerning any extension of any coastal State’s jurisdiction.[6]

Regarding prevention, reduction and control of pollution, UNCLOS provides that coastal States may adopt laws and regulations in their EEZ conforming to and giving effect to generally accepted international rules.[7] One of those international rules is the International Convention for the Prevention of Pollution from Ships (“MARPOL”).[8] The Court of Appeal established its jurisdiction relying on provisions of French law implementing MARPOL.[9] TOTAL sustained that definition of “involuntary pollution offence” in the French law was much stricter than the one in MARPOL[10] and thus French law was not conforming to and giving effect to MARPOL so article 211 of UNCLOS was not applicable. However, based on a theological interpretation of MARPOL and considering that the overarching goal of the MARPOL Convention is to foster States to fight against pollution, the Cour de Cassation decided that France was authorized to adopt stricter rules than those of MARPOL.[11]

The Court also referred to other provisions of UNCLOS which provide that the coastal State can institute proceedings if a ship has committed within its EEZ a violation of an international rule resulting in a discharge which caused major damage.[12] This solution is compliant with European law, which accounts for using the place of the damage as a basis for jurisdiction.[13]

  • TOTAL liable on civil grounds[14]

According to the CLC Convention, liability is channelled on the shipowner and such liability is limited.Other stakeholders benefit from an absolute immunity. This immunity can, however, be lifted if the damage results from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge of potential damage.[15] Unlike the Paris Court of Appeal, the Cour de Cassation decided that TOTAL, the charterer, made a reckless fault. Consequently, TOTAL was found to be severally liable with the shipowner, on the basis of the CLC.

It is interesting to note that in parallel proceedings[16], TOTAL has been found liable after the European Court of Justice, asked for a preliminary ruling,[17]decided that where the CLC compensation system is insufficient to fully compensate the victims, oil spill could be considered as a waste and the charterer should be considered as the producer of the product from which the waste came, for civil liability purposes.

  • The recognition of environmental damage[18]

Win McNamee/Getty Images.

The most significant legal advance of this decision concerns the introduction of a “purely ecological damage head of damage in French civil liability law. French law already encompassed the EU notion of “damage to the environment” but the way it had been implemented in the French system made it unusable and oil spills were excluded from its scope.

A “purely ecological damage” was a revolution in French civil liability which so far had relied on the idea that damage, whether pecuniary or non-pecuniary, would necessarily be suffered by a person. A “purely ecological damage” is different: it is not subjective and does not relate to a specific victim. On the contrary, it relates to the environment, a legal fiction, which does not have legal capacity. It is

not an impairment of a particular human interest but an infringement of a particular interest protected by the law.[19] Compensation for “purely ecological damage” differs from indemnification for the economical or moral damage suffered by a person due to damage to the environment and both are cumulative.

Since then, the concept of “purely ecological damage” has been introduced in French law. The Law n° 2016-1087 for the recapture of nature, biodiversity and landscapes introduced a new set of articles into the French Civil Code which created a new claim category for “ecological damage defined as “sizeable damages to the elements, or to the functions of the ecosystem or to the collective assets of environment from which men benefit”. On this basis, courts can order rehabilitation of the degraded area or compensation, based on the “polluter-pays” principle (the party responsible for producing pollution is responsible for paying for the damage caused to the natural environment).

About the author: Lucie Rollini is a trainee-lawyer at the Paris Bar, focusing on International Law and Law of the Sea. She holds a Master in International Law from La Sorbonne University (Paris) and a LL.M Degree in Maritime Law from the University of Southampton (UK). She has been a member of CliMates for 3 years. Based in Paris, she is currently completing an internship at the OECD, Nuclear Energy Agency. She speaks French, English and Italian and is currently learning Portuguese.

 

References:
[1] Tribunal Correctionnel de Paris, 16th January 2008.
[2] Cour d’appel de Paris, Pôle 4, 11e ch., 30th March 2010, RG n° 08/02278.
[3] International Convention on Civil Liability for Oil Pollution Damage, 1969 as amended by its 1992 Protocol (CLC Convention).
[4] Page 107 of the Decision.
[5] Article 92 of UNCLOS.
[6] See The Arctic Sunrise Arbitration, Netherlands v. Russia, PCA, case n°2014-02: Greenpeace activists attempted to scale a Russian oil platform on Russian EEZ. Russia took measures against the activists (detention) and their ship (immobilization). Russia claimed its criminal jurisdiction in the EEZ but the Permanent Court of Arbitration decided that Russia did not have a legal basis to take measures against the Artic Sunrise and the crew, by examining one by one all possible exceptions to the flag State exclusive jurisdiction.
[7] Article 211 para. 5 of UNCLOS.
[8] International Convention for the Prevention of Pollution from Ships, 1973 as amended by its 1978 Protocol (MARPOL Convention).
[9] Article 8 of the Law n° 83-583, 5 July1983 (JORF of 6 July 1983, p. 2066)
[10] Article 4 MARPOL, and Annexe I, Rules 9 and 11 MARPOL.
[11] Page 106 of the decision.
[12] Article 220 para. 6 and article 228 of UNCLOS.
[13] ECJ Aff. 21-76, Handelskwekerij G. J. Bier BV contre Mines de potasse d’Alsace SA, 30 novembre 1976. 
[14] Page 315 of the Decision.
[15] Art III. 4° of the CLC Convention.
[16] Cass. Civ. 3, Commune de Mesquer v. Total France SA and Total International Ltd, 17th December 2008.
[17] ECJ – C-188/07, Commune de Mesquer contre Total France SA and Total International Ltd, 24th June 2008.
[18] Page 255 s. of the Decision

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