Erika oil-slick trial sets ‘ecological prejudice’ precedent

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In a landmark decision that could set a legal precedent, the French energy giant Total and three other parties have been charged for their role in the sinking of the Erika ship, which caused a major oil spill in 1999.

In a ruling on 16 January 2008, the Criminal Court of Paris condemned the world’s fourth largest oil group Total SA to a fine of €375,000 – the maximum allowable penalty for maritime pollution – claiming “ecological prejudice” caused by the sinking of the Erika. 

The case represents the first time that a French court has handed down a conviction for environmental damage and the landmark ruling could establish a legal precedent for suing companies or persons over major ecological disasters. 

Cargo owners that charter a ship are usually precluded from responsibility under international maritime law. However, the Court ruled that only Total’s subsidiary, Total Transport, would be let off as the ship’s legal charterer. Total SA, on the other hand, was found guilty of recklessness in its vessel inspection and vetting procedure. 

This “carelessness” had a “causal role in the sinking and as such provoked the accident,” said Judge Jean-Baptiste Parlos. Erika’s Italian owner Guiseppe Saverese and its Italian manager Antonio Pollara were also found guilty and fined €75,000 each – the maximum penalty for physical persons. According to the Court, the two men had committed a fault by cutting down on maintenance work on the Erika in order to save money, despite heavy corrosion of the ship’s structures. 

The Italian maritime certification company RINA, which judges blamed for issuing a navigability certificate to the ship without undertaking the necessary checks “under the pressure of commercial constraints”, was also fined the maximum amount for a company, €175,000. 

The four parties were also told to pay out nearly €200 million in damages to some one hundred plaintiffs in the case, including the French state, the regions, environmental protection groups such as Greenpeace, fishermen and hotel owners. 

Eleven other accused parties, including the ship’s Indian captain Karun Mathur and Total’s former security chief Bertrand Thouillin, were let off the hook. Accusations of “putting other people’s lives in danger”, which could have led to prison sentences, were dropped against everyone. 

The case is however not yet over, as Total and the other convicted parties still have ten days in which to appeal the decision. This would lead to a suspension of sanctions and a new trial in around one year. 

French oil company Total declared that it was "pleased" to have been acquitted for reckless endangerment but underlined its disappointment with the Court's decision to impose fines for maritime pollution and to make it pay compensation to civil parties, "especially since the court has acknowledged that the actual cause of the sinking was beyond Total's control". 

The company in particular objected to its conviction on the basis of recklessness in its vetting procedures, stressing that it had voluntarily introduced such a system to enhance its shipping safety. It adds that vetting does not include a survey of the vessel's structural elements, "which is the responsibility of the classification society and the shipowner as part of the vessel's regular maintenance", and that the flaw in Erika's hull could not have been detected by the company. 

"It is therefore hard to understand how it could be found guilty for alleged shortcomings in a procedure not required by law. Furthermore, the company's practices are compliant with standard industry practice," it said in a statement. 

"By assigning liability to Total, the Court's verdict could create confusion concerning the responsibilities of the players and have the contradictory effect of making shipping less safe," it stressed, adding: "There are numerous grounds for appealing the verdict." 

Environmental group Friends of the Earth however hailed the verdict as "the end of a kind of impunity", saying it was "extremely positive" that Total had been found guilty and ecological damage "recognised at last". 

Yannick Jadot, campaigns director for Greenpeace France, which will receive €33,000 in compensation, agreed: "This is good news […] We now hope that this ruling will have a snowball effect around the world so that big groups will be held responsible for environmental damage." 

"This ruling will have important repercussions regarding the chain of responsibilities. If the field of responsibilities is widened, we will increase the possibility of repairing similar disasters and we will give an incentive to companies to become more virtuous. If charterers can be recognised as responsible for maritime pollution, they will have to take more care in the future," added Greenpeace lawyer Alexandre Faro. 

France's Junior Minister for Ecology Nathalie Kosciusko-Morizet termed the judgement a "revolutionary decision" that would make it easier to sort out the complex chain of responsibilities in the case of disasters at sea.

Ségolène Royal, the former Socialist presidential candidate and head of the coastal Poitou-Charentes region, which was badly hit by the accident, said: "It is a very severe warning to careless transport groups, to the floating garbage cans that cross the seas, often in total impunity. It's a big legal step." 

The sinking, in December 1999, of Erika – a 25-year-old, rusting, single-hulled oil tanker – caused the leakage of more than 20,000 tonnes of toxic fuel oil, polluting 400km of France's coastal area, destroying the marine environment and killing tens of thousands of seabirds. 

The catastrophe sent a shockwave not only through France, but across the whole of the European Union, spurring the Commission to adopt a series of strict preventive measures to take action to improve maritime safety, known as the Erika I and II packages. The measures included the complete banning of single-hull oil tankers from carrying heavy fuel oil in the European Union as of 2003 and the gradual elimination of all EU single-hull tankers by 2015. 

An even tougher third package is currently being examined by the European Parliament and the 27 member states. 

  • 26 Jan. 2008: Deadline for convicted parties to launch an appeal. 
  • 2008: European Parliament and Council to adopt third package of maritime safety measures. 

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