judicial training and research on eu crimes against environment and maritime pollution

December 6th, 2012Can International Law prevent French stammering legislation on

environmental and maritime crimes to apply and to develop ? The Erika case

Benoît PETITAssociate professor of law, University of Versailles (France)

Co-director of the ODERSE ObservatoryLawyer

Judicial Training and research on EU crimes against environment and maritime

pollution

Judicial Training and research on EU crimes against environment and maritime pollution

Let’s go back quickly to the facts…

The “Erika” Shipwreck Case - Facts & ProceedingsFrench EEZ



SHIPWRECK ACTORS & TRIAL DEFENDANTS

Ship Captain : Mr. Karun MATHUR

Ship Owner : TEVERE SHIPPING Cie Lim. (Malta)Owned by AGOSTA INVESTMENTS (Liberia) & FINANCIAL SHIPPING CORP. (Liberia)Bearer shares benefit : Mr. Guiseppe SAVARESE

Ship Manager : PANSHIP (Italy)Owned by Mr. Antonio POLLARA

Certification Cie : SpA RINA (Italy) By delegation for MALTA MARITIME AUTHORITIES

Charterer : TOTAL (via SELMONT & TOTAL subsidiaries)



SHIPWRECK ACTORS & TRIAL DEFENDANTS Time line

1975 : Ship is built1993 : TEVERE becomes owner 1997, May 31st : Agreement between TEVERE & PANSHIP for Ship

managment1998, May : Ship repaired after 11 deficiency reported 1998, Aug. 15th & Dec. 16th : Certification delivered by SpA RINA1999, Sept.: SELMONT takes on Charter operations1999, Nov. Charter agreement between SELMONT & TOTAL

TOTAL takes on vetting operations1999, Nov. 24th : Certification renewed by SpA RINA1999, Dec. 7th : Departure1999, Dec. 11th & 12th : Shipwreck



Conclusions of the Prior-Trial investigationsInquiery reveals :

Ship repairs were inadequate given the deficiencies (corrosion) that affected the ship’s body ; SpA RINA delivered the certificates without considering these defaults ; The vetting operations taked on by TOTAL should have lead the Charterer to refuse to charter the ship ;

Therefor, if the different ship actors had showed more caution, the shipwreck could have been prevented

The shipweck actors are thus sent to Trial for involontary pollution by hydrocarbon & endangering the crew



Tribunal Correctionnel of Paris, Jan. 16, 2008

Every defendant is discharged on the basis of endangering the crew ; Ship captain and Charterers (SELMONT and TOTAL subsidiairies) are

discharged of involontary pollution by hydrocarbon ; SpA RINA, Ship owner (TEVERE), Ship manager (PANSHIP) and TOTAL

(vetting operations) are sentenced for involontary pollution by hydrocarbon

Public prosecutor, defendants and plaintiffs all seek appeal.



Cour d’appel de Paris, 30 mars 2010

First jurisdiction decision is confirmed, except on it’s legal and conventionnal argumentation


Cour de cassation (Supreme Court)Chambre Crim., 25 septembre 2012, n° 10-82.938, Erika

3 questions to deal with (on the criminal aspects of the case) :

1 – Can the French 1983 law (art.8) apply to the Erika case ?2 – Are the French jurisdictions competent to rule the Erika case ?

3 – Who is guilty and to which extent ?


I - Can the French 1983 law (art.8) apply to the Erika case ?

What do the MONTEGO BAY Convention rules say ?

Part V – Rules concerning EEZ

Art. 56 : Rights, jurisdictions and obligations of Coastal countries in their EEZ

Coastal countries have sovereign rights in order to protect sea environment.Coastal countries’ jurisdictions are competent for ruling issues that deal

with sea environment protection, in respect of the rights and obligations of other countries




Part IX – Protection of sea environment

Art. 211 - Ship pollution

In order to protect sea environment, Coastal countries may enforce specific legislation for their EEZ, if this legislation complies with International law rules (§ 5).




Part IX – Protection of sea environment

Art. 221 – Measures to prevent sea pollution after ship accident

Any country can take, beyond it’s home seas, proportionate measures to protect their coasts and linked interests.



What do the MARPOL Convention rules say ?

Art. 4 – Offenses

All offenses to the MARPOL rules are ruled by the ship Flag’s country’s legislation, wherever this offense took place (§1)

If the offense took place in the jurisdiction of another country, this country can either prosecute, or give all information to the ship Flag’s country in order to demonstrate the offense (§2)

Legislations under which the offense is prosecuted must lead, by their rigour, to discourage all possible offender, and be of equal severity wherever the offense took place (§ 4).



What do the MARPOL Convention rules say ?

Apx I – Prevention of pollution by oil

Rule 9 – Hydrocarbon waste dumping is forbidden, except in specific situations (ship/crew security). Taking in consideration Preamble as well as art.2 (definitions), the ban applies also to non-intentional dumping. The offense opens prosecution against Captain and owner.

Rule 11 – The Rule 9 offense does not apply if the dumping follows a shipwreck accident and if all reasonable precautions have been taken to prevent or reduce the damages caused (except if intentional fault of the Captain or owner).



What does French 1983 law rule ?

Art. 8Carelessness, negligence & non-observance of legislation rules that have

lead to a sea damage (as defined by the Brussels Conv.) are punished in the person of the Ship Captain, or the person in charge of the Ship’s conduct or exploitation on board, if this sea damage has lead to the pollution of home waters, and if these people have provoked the accident or didn’t take the necessary measures to avoid it.

Are also punished in the same conditions, the Ship owner, the Ship manager and more generally all people that have a control or leadership power on the Ship



TOTAL’s first argument :

Art.8 is not a specific legislation that can apply to EEZ, according to MONTEGO BAY Rules, in order to protect sea environment.

Indeed, Art.8 does not mention that it applies to EEZ, nor refers to MARPOL, which is not the case, for example, for Art.7 (on reporting obligations)

And French penal Code rules that French legislation (except specific mention) applies only to home territory and seas.

Therefore, there is no French legal basis to prosecute a foreign ship that has caused an non-intentional waste dumping pollution in EEZ.



SC Public Prosecutor rejects TOTAL’s first argument :

1 – 1983 French legislator’s intention was to deliberately not refer to MARPOL Conv. because he considered that International law conditions to prosecute non-intentional sea pollutions were too concilatory with the people in charge.

2 – 1983 French law applies to all pollutions that affect home waters, whatever their origins... Which is very different than MARPOL rules (which aim the waste dumping place)

3 – 1983 French law does not enforce any exemption, at the difference of MARPOL rules 4 – 1983 French law opens prosecution to more people than MARPOL



SC Public Prosecutor rejects TOTAL’s first argument :

Therefor,

1 – 1983 French law (art. 8) clearly does not transpose MARPOL Rules and offense 2 – No matter the fact that French law doesn’t explicitly say it applies to damages

in EEZ, by choosing an offense that builds up as soon as home waters are polluted, whatever the origins of the damage, it intends to protect sea environment accordingly to MONTEGO BAY Rules

French 1983 law (art.8) is therefor an autonomous offense, and a specific legislation accordingly to MONTEGO BAY Rules.



French Supreme Court follows SC Public Prosecutor’s argumentation on this issue.

Court of Appeal’s decision is therefor confirmed on this point.



TOTAL’s second argument :

If we consider that French 1983 law (art.8) is a specific legislation that can possibly open prosecution, accordingly to MONTEGO BAY, it must nevertheless comply with International Rules.

MARPOL Rules fix the conditions under which a non-intentional waste dumping pollution caused in EEZ can be prosecuted.

French 1983 law (art.8) enforces very different conditions, that are more severe than MARPOL Rules.

Therefor, French law does not comply with International Rules, and cannot apply to the case, according to MONTEGO BAY Rules.



SC Public Prosecutor agrees with TOTAL’s second argument :

1 – French 1983 law (art.8) is more severe than MARPOL Rules, because• Rule 11 opens an exemption cause that is not enforced by French law• French law opens prosecution to a larger range of people than MARPOLYet, the need of “complying” means to enforce identical rules.

2 – MARPOL (art. 4) says that the legislation under which the prosecution is lead must be of equal severity wherever the damage took place. Therefor, if French law is more severe than MARPOL Rules, the fact that MARPOL strictly defines the rules for EEZ, French law thus leads to apply a more severe legislation for it’s home waters than for EEZ.



Supreme Court doesn’t follow TOTAL and Public Prosecutor on this issue

1 – Concerning Rule 9, it is very clear that MARPOL points an offense that aims the “ship”, which has no ability to have rights and duties.

As for Rule 11, it only limits the possibility of exemption to 2 actors, which does not mean that the entire offense concerns only these two actors.

Therefor, MARPOL does not force French legislation to aim the offense only towards 2 specific actors

On this point, Supreme Court confirms the Court of Appeal’s argumentation.




2 – Indeed, French 1983 law (art.8) appears to me more severe than MARPOL Rules, since it doesn’t enforce the Rule 11 exemption cause, and because it opens prosecution on the basis of a negligence fault whereas MARPOL Rules opens prosecution for the Captain and the Owner on the basis of either an intentional fault, or a recklessness fault with conscience of possible danger.

Core differences ? Or only a more severe application that extends MARPOL Rules intentions ?




MARPOL (Art.4) invites countries to enforce rigorous legislations in order to dissuade possible offenders.

MONTEGO BAY insists on the responsibilities of a country to protect it’s sea environment

The Lotus case precedent (1923) admitted that a country could prosecute offenses that took place beyond it’s territorial jurisdiction if one of it’s rightful interests was violated.

Therefor, French 1983 law complies with International law because it’s more severe conditions marry with MONTEGO BAY and MARPOL aims and goals. There are no core differences between these texts.



Thus, Supreme Court confirms Court of Appeal’s argumentation on this point.

Even if Supreme Court doesn’t take over this Court of Appeal’s argument, let’s keep in mind that the Vienna Convention (1969, May 23rd) says an International law is interpreted in the light of its object and goals.



On the fringe of this issue, Supreme Court also rules that Rule 11 does not apply to the case, since no reasonable precautions have been taken immediately after the waste dumping occurred or has been revealed.

Therefor, Supreme Court holds a very strict interpretation of the notion of “reasonable precaution”.


I – What’s the situation ?

French law enacts a autonomous offense, on the basis of protecting sea environment. This offense is legal, because it complies with International law (more precisely, doesn’t contradict MARPOL’s offense).

Nevertheless, MARPOL also enacts a specific offense.

So, the Erika case leads, theoretically, to 2 possible offenses on which it is possible to prosecute.


II – Are French jurisdictions competent to rule the Erika case?

French 1983 law (art. 8) is a legal basis for prosecution. But were the French jurisdictions competent to rule the case ?

According to Supreme Court, « The offense of non volontary pollution has caused serious damages to the coastal State » : French jurisdictions are competent on the basis of the place where the damages have been observed.

Montego Bay, Art. 220, § 6 : coastal State can prosecute pollution offenses that occur beyond it’s territory and which have caused serious damages (because this State is globally competent to protect it’s maritime environment , on the basis of Montego Bay, Art. 56, §1)

BUT Montego Bay, Art. 228 : if coastal State prosecuted on the basis of Art. 220 §6, it must suspend it’s action if the ship’s Flag State has also prosecuted on the basis of Marpol rules concerning competent jurisdictions.



In fact, Malta never prosecuted on the basis of MARPOL rules

Therefor, French criminal jurisdictions are competent on the basis of MONTEGO BAY rules, because MARPOL rules have not been used.

Note : French 1983 law has been changed by a 2004 law (march 9th) which now rules that 1983 law also applies to offenses that take place in the French EEZ.



In the Erika context :

French criminal jurisdictions were competent on the basis of International rules concerning Sea environment protection because these rules admit that in case of serious damages caused by a sea pollution, it is possible to prosecute ; this analysis is based on the waste dumpings’ consequences.

Malta criminal jurisdictions were uppermost competent on the basis of Marpol rules concerning sea pollution offenses in EEZ, because Marpol gives a priority to analysis based on the waste dumpings initial place.

But if no criminal action is engaged on the basis of waste dumpings initial place analysis, then criminal action is possible on the basis of waste dumping consequences.



Nowadays, according to French 2004 law,

French criminal jurisdictions can also be competent on the basis of a waste dumping initial place analysis, if the ship flag’s State does not prosecute.

The legal basis for French jurisdictions competence is more solid, but remains the problem of Marpol according a priority to ship’s Flag State jurisdictions…

France is only competent because Malta stayed silent… If it hadn’t, France would never have been competent, or at least, only after Malta ruled the case.


III – Criminal Responsibilities : who is guilty ?

The owner of the ship : numerous serious faults

* Provided an old ship with corrosion defaults ; * Underevaluation of repairing work ; * Negligence with maintainance ;



The ship manager : numerous serious faults

* Same as the ship owner +

* Knew that there were cracks in the ship’s tanks, but gave no alert



The charter company (Total SA) :

Let’s remind that in the Court of Appeal’s decision, TOTAL was not found guilty in a way that led to engage it’s civil responsibility.

For the Supreme Court, the vetting process gave the charter company a clear mastery of the ship, because Total was able to inspect all aspects of the ship’s condition and all documents concerning the ship. This process should have dissuade Total to load it’s cargo in the ship, and order the trip.



For the Court of Appeal, Total was guilty of only a « negligence » fault, without sufficient awareness of a possible damaging pollution, because it did not have all the informations necessary to oppose the ship’s departure.

But for the Supreme Court, the vetting process was sufficient to conclude that Total SA did have (or could have had) all the informations necessary to oppose the ship’s departure. Therefore, the fault is a « recklessness » fault with conscience of possible damages, that can be assimilated to an intentional fault.

Total’s criminal responsibility is, thus, increased, and gives way to sentence the company on the basis of civil liability..


Consequences and limits of the Supreme Court’s decision

Direct consequences

1 – International law must be taken in account globally, on the basis of networking all the relevant Conventions, which leads to focus on the « aims » of each text (crackdown and prevent Sea pollution), more than on their specific rules ;

2 – Criminal responsibilities are fixed according to the possibilities of information that actor’s behaviour should ideally give them, and not according to the informations that they actually detain because of their behaviour. .



Indirectly

Coastal States that are victim of Sea pollution have their word to give on the judicial treatment of Sea pollution offenses, because it is the counterpart of their responsibilities to act in favor of preserving Sea environment…

This illustrates the wish to go back to the « Lotus » case law spirit, as well as a global disapproval of how the International Conventions have been conceived these past years (potentially too protective of economic interests, and insuffisciently protective of general interest).



Ruled in 1927

In high seas zone, a French ship collapsed with a Turksh ship and caused many deaths. When French ship came alongside of Istanbul, French captain was arrested and prosecuted under Turkish law. France disputed Turkish judicial competence because the accident took place beyond Turkish territory.

Permanent International Court of Justice ruled that if a State is victim of an offense committed elsewhere than in it’s territorial jurisdiction (e.g., high seas zone), then it is competent to rule the case.

In order to prevent this decision to apply, International law has enacted explicit sets of rules that organises differently the question of judicial competence :

Montego Bay, art. 97 : if the criminal responsibility of the ship captain/crew member is engaged, then the jurisdiction competence is given to the ship’s Flag State. (Not the case here, in Erika case)

Marpol rules on EEZ.



Remains a major problem that State law and case law cannot solve, because International law is much too explicite on the issue : the centrality of the Flag State’s status.

Thanks to this centrality and the judicial/legal powers attached, some countries attract numerous economic interests by enacting very weak laws on the issues of environmental protection and criminal/civil responsibilities… These States being not necessarly concerned by damages caused by Sea pollution (very little coastal territories). .



• Initially, the responsibility system was structured under the principe « One ship company » : each ship was owned by one company, this company being responsible of all damages it caused.

• Oil companies therefor owned their ship via subsidiaries that would be the only legal responsibles of possible damages

• But « Amoco Cadiz » decision (jan. 1992) ruled that parent companies were responsible for their subsidiaries…

.



• In response to the Amoco decision :

1 – Oil companies decided not to own anymore their ships, and to be only charter companies ;

2 – Oil companies lobbied States for a change of the « International Convention on Civil Liability for Oil pollution damage » (1969), which they obtained in 1992.

They wanted this Convention to focus only on the owner’s responsibility, and not on the charter companies’.



• Nowadays, the CLC rules that the Charter company is responsible only if the damages result of their intentionnal fault…

• This is why the French Court of Appeal, who recognized Total’s criminal fault, did not sentence it on the basis of civil liability… because Total’s fault was not intentional according to their analysis.

• And this is why the Supreme Court disapproved on this point the Court of Appeal, and recognized a fault of Total that can be assimilated to an intentional fault… therefore, Total was sentenced on Civil liability basis.

.



• 1 – This decision does not solve the problem of Flags of compliance… because it can’t. This status protects the ship owners and still disrupts the issue of the Judicial competences (France was competent because Malta didn’t prosecute !)

• 2 – Total was found responsible because it decided to go into a volontary vetting process. If it hadn’t, the CLC would have protected the charter company totally.

• « Total gave the stick with which it’s been beat »… but what if it hadn’t ? What if Total had decided to charter the ship only after an adjudication in order to have a independant company select the good ship ?

.



Therefor, the major issue now for International Sea law is to restructure itself around the idea that the States that must now have a central status and legal/judicial power to rule Sea pollution offenses, must be those that are the potential victims of these offenses, at least concerning EEZ (since « Lotus » case law still applies in high seas zones).

All proposals adressed to the EU to improve Criminal maritime law must focus on how to give more power to the States that manage EEZ, as well as how to struggle against Flags of convieniance. Also, it is necessary to restructer the Charter companies liabilty rules. .


Is the Erika case really over ?

• According to Total’s lawyers, the charter company might seize the European Court for Human Rights, on the basis that it is now possible for a company to seize this jurisdiction if it’s property rights have been violated

But this prospect seems difficult to argue on a legal basis.

Let’s wait and see… maybe the Erika case will offer us new fascinating twists and turns ? .


Thank you for your attention !.

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