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ORIGINAL FRENCH ARTICLE: Erika : jugement historique pour l’environnement

by Sophie Bouniot

Erika Oil Spill Trial : Landmark Ruling for the Environment

Translated Saturday 26 January 2008, by Isabelle Métral

On January 16th the Paris magistrates’ court found French oil giant Total liable for the wrecking of the oil-tanker and for the first time ever in the history of similar cases acknowledged the reality of “environmental damage”. The court ruling will set a precedent and will satisfy environmentalists. The ruling calls into question long-established and well-oiled procedures and arrangements in international maritime law.

Italian ship-owners and managers Giuseppe Savarese and Antonio Pollara, the oil group Total SA and the Italian maritime certification company RINA have been held liable for the disaster and jointly sentenced to pay €192m to the plaintiffs who were claiming nearly €1bn for damages. The joint sentence means that the plaintiffs can get the compensation they are entitled to from any of the defendants. After paying out the money Total (the most solvent in this case) can take legal action against the other defendants to get some of it back.

“Causal negligence”

Before giving their verdict the magistrates grounded their judgement on the compatibility of the 1983-07-05 law on pollution offences and the international MARPOL convention that has so far made legal action over pollution impossible against oil companies. Having defined its jurisdiction, the court examined the respective liability of each of the fifteen defendants for the damage incurred by the tanker and for the oil spill that soiled some 400 km (250 miles) of French coastline in December 1999.

The plaintiffs’ first ground for satisfaction is that the court found Total guilty of causal negligence, i.e. negligence that had “a causal role” in the catastrophe and “as such brought the disaster about”. The magistrates did not pass sentence on the oil company in its quality of charterer for that status would have made it immune to sanctions under international maritime conventions but they circumvented the difficulty by holding it liable for the ship’s “vetting”. Total, they argued, overlooked both the age of the tanker and the discontinuity in the ship’s technical management and maintenance. As a consequence, the oil company, which is the world’s fourth largest, will have to pay the maximum fine for a legal entity, namely 375,000€. RINA was given the same financial penalty.

As natural persons, the Italian owner and manager also received the maximum penalty, namely 15,000€ for “blatant neglect” since they could not have been unaware of having spent only a minimal sum on the tanker’s repair. Karun Mathur, the Indian captain, was discharged as were the four officers in charge of coastal surveillance and sea rescue.

Entitled to sue for damages

Another substantial gain is the acknowledgement without precedent in judicial records of the ecological prejudice “resulting from damage done to the environment”, compensation for which was due to the environmental groups and local administrative units with locally protected "vulnerable natural sites”. "Compensation is subject to the submission of evidence for the actual damage done to these”, the magistrates however specified in view of future potential legal actions.

From now on authorities in charge of natural areas and environmental groups will be “entitled to sue for damages not only for material and moral prejudice, direct or indirect, to collective interests that it is (their) mission to defend but also for compensation for damage to the environment.”

On this last count, the Ligue pour la protection des oiseaux (League for birds’ protection ) will get 800,000€, 300,000€ of which as a result of this jurisprudence. The Morbihan (one of Brittany’s local administrative units) will get €2.1mn, half of which to compensate for “environmental damage”. The French State however will reap by far the greater part of the compensation money since it has been awarded €154m.

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