The Erika: Cour de Cassation has its thinking cap on

29 May 2012 by David Hart KC

I posted recently on the continuing legal see-saw in France arising from the prosecution of Total and other parties for their responsibility for the loss of the Erika on 12 December 1999. The Erika sank off the Brittany coast, spilling some 20,000 tonnes of heavy fuel oil, polluting  some 400 km of the French coastline, and killing this poor guillemot, amongst many.

Last week, on 24 May, this criminal case reached the highest French court, the Cour de Cassation. Some thought that the court was going to rule immediately on whether Total and the others were criminally liable for the oil pollution. Previously, the Criminal Court of First Instance, and the Court of Appeal in Paris  had said that Total and others were responsible. But now the prosecutor, Advocate-General Boccon-Gibod, was of the view that Total had no criminal liability. His written opinion appears not to have surfaced on the ‘net, but from the decision of the Court of Appeal (for the brave, and not for those with slow broadband, all 487 pages), you can see the points that Total was making, and which he seems to have accepted.

Total said that the 1983 French law under which it and the others were prosecuted  purported to transpose an international oil pollution convention, MARPOL, but in fact imposed a more rigorous standard upon those responsible. Interestingly, for us Anglo-Saxons, the French Constitution insists on the primacy of treaty law, once ratified, over domestic law. We, on the other hand, do not. We can, and occasionally do, ignore ratified international obligations wilfully, unless we have sought to make them part of our own domestic law (and that is not the same as simply signing up to them), or unless some ambiguity arises in our own law. Human rights veterans who tangled with the ECHR before the Human Rights Act 1998 will recall the various attempts to suffuse domestic law with ECHR principles. Indeed, no amount of HRA abolition can get away from the fact that we still have signed up to the Convention, and it would still operate to impose rights standards where the answer in domestic law was not clear (actually quite a lot of the time).

At the recent oral hearing, Boccon-Gibod was aware of the waves which his opinion was making. The result offended consciences and may appear scandalous, he said. But that is what the law amounted to, there needed to be an applicable text, and there’s the rub. On the other side of the argument were a whole array of civil parties who under French law can intervene in a criminal case and seek compensation. They were seeking to uphold the decision of the Court of Appeal below, not only on principle, but also because it ordered the payment of very considerable sums of money to those affected by the pollution, including, interestingly, substantial sums to be paid to the coastal municipalities due to the reputational damage which they had suffered.

So, just four months to wait until the Cour de Cassation decides the case. A mere blink of the eye, I suppose, given that the incident occurred well over 12 years ago

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