The Erika: Cour de Cassation finds against Total, big time.

25 September 2012 by David Hart KC

Earlier today, 25 September 2012, (judgment here, in French) the Cour de Cassation in Paris ruled on the long-running question of whether Total is criminally and civily liable  for the loss of the Erika on 12 December 1999 and the consequent spillage of some 20,000 tonnes of heavy fuel oil, affecting some 400 km of the French coastline.

The case has see-sawed so far. The Criminal Court of First Instance, and the Court of Appeal in Paris  had said that Total and others were responsible, though the Court of Appeal did not make this finding in respect of the civil claims. Next, the prosecutor, Advocate-General Boccon-Gibod, expressed his view to the Cour de Cassstion that Total was not liable at all. But his view was not shared by 80 parties who appeared before the court, including the affected communes Now, the court has finally ruled in favour of those polluted, both under the criminal and civil laws, as against Total and other responsible parties – all these issues have been decided in the same decision, in a way which may seem a bit odd to UK lawyers who generally put criminal and civil law in different boxes.

The judgment is pretty weighty, some 330 pages of legal French – as is standard, this is all written as one huge sentence – broken up by multitudinous semi-colons. it is not easy to digest, to say the least, but I shall try and give the bare bones of the decision.

The incident happened not in French territorial waters, but in its Exclusive Economic Zone extending up to 200 nautical miles from its coastline . This, said Total, made a difference. Total argued that the 1983 French law under which it and the others were prosecuted  aimed at transposing an international oil pollution convention, MARPOL, but in fact imposed a more rigorous standard upon those responsible. The court thought there was more to it than this, relying on various provisions in a UN Treaty (known as Montego Bay or UNCLOS) which conferred some measure of responsibility on France for its EEZ.Therefore, it was entitled to prosecute an incident in the EEZ under its own law, without having its hands tied by MARPOL and other international provisions. As I pointed out in my last post on the case, the French Constitution insists on the primacy of treaty law, once ratified, over domestic law, and therefore the treaty can govern French law without the treaty being incorporated into domestic law. So imagine us being directly bound in domestic law by the ECHR even without a Human Rights Act.

So the upshot is that Total has been fined 375,000 euros and held liable for very substantial damages and interest (over 200 million euros, of which most if not all has already been paid by it), at the suit of the 80 involved civil parties. Some 13 million euros was awarded for environmental damage

Total’s response has been to say that it is considering an application to the European Court of Human Rights. If it does so, the case will really have done the rounds. An initial case (whether spilled fuel oil was waste under European waste legislation) got to the EU European Court of Justice in Luxembourg: see Mesquer. The case has now been up and down the French courts. And will it be capped by an outing to Strasbourg?

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