Oil spill in the French exclusive economic zone: a responsibility of the ship manager only? By Ezio Dal Maso and Nicholas Demigneux, Stephenson Harwood – Paris
In a decision handed down on 3 April 2014, the French Supreme Court confirmed the decision of the lower courts which fined €1.5 million the ship manager and the master in respect of the unintentional discharge of oil in the French exclusive economic zone. The Supreme Court also confirmed the previous decisions whereby the ship manager was to bear 95% of the fine and rejected the argument that the fine was to be shared with the registered owners of the vessel. According to Article L218-23 of the French Environment code, a court has in fact discretion in allocating to the registered owners and the “exploitant” of the vessel all or part of the fine issued against the master for violations of the provisions of Marpol 73/78. In the particular circumstances the court held that the ship manager was the only party liable for the payment of the fine, as the ISM manager takes all risks connected with the exploitation and safety of the vessel.
On 28 August 2009 oil was observed on the surface of the water in the vicinity of the vessel “Fastrex” registered in St Kittis and Nevis by an airplane of the French customs, 280 km off Royan in the Bay of Biscay. Three times the master refused to detour to Brest and eventually the vessel was inspected at Santander in Spain. Subsequent investigations determined that fuel oil had leaked from the vessel and the prosecutor alleged that the master and the ship manager, a Latvian company, were in breach of Article 218-10 and following of the French Environment code which punishes oil spill. In light of the fact that the pollution had occurred outside the French national waters, the criminal charges against the master were dropped. However, the court of first instance of Brest issued fine of €1.5 million and considered that it was not relevant whether or not the owners were managing the vessels for themselves or for others as registered owners, as it was the case, and held that the liability was to be shared between the manager and the master only. This decision was then confirmed by the Court of Appeal of Rennes and finally by the Supreme Court.
The above decision is in line with the French precedents established after the “Erika” disaster in 1999 and it constitutes clear evidence of the repressive approach of the French authorities with respect to the protection of the maritime environment and punishment of oil spills. In this regard it is important to note that pursuant to a law reform passed in 2010 the maximum possible fine for a vessel of more than 400 GRT has now been increased to €15 million and 10 years of imprisonment. Further, a debate is currently on-going at the French Parliament for the introduction in the legal system of the new category of “environment prejudice” which could give green light in the French courts to collective actions for the recovery of damages resulting from oil spills.
Owners and managers should therefore be wary of this landmark decision and the future developments in the French legislation for the protection of the marine environment.