In an eagerly awaited decision, the French Cour de cassation held on 25 September 20121 that France had jurisdiction over the Erika oil spill case. The ruling of the Court rejected the advisory opinion provided by the Deputy Prosecutor (Avocat Général) earlier that year, that France had no jurisdiction over the case.
The loss of the oil tanker Erika on 12 December 1999, resulted in the pollution of some 400 km of the French coast. On 30 March 2010, the Paris Court of Appeal confirmed the criminal conviction of the owner, the technical manager, the classification society and Total, the charterer of the ship at the time of its loss. Furthermore, the Paris Court of Appeal also confirmed the concept of ecological damage (click here for previous articles in Legalseas April 2009 (The ERIKA decision - implications for Charterers and Owners of oil cargoes) and in Legalseas May 2010 (ERIKA - The Court of Appeal confirms the criminal sanctions but holds Total not liable under the CLC)).
In its press release dated 25 September 2012, the Cour de cassation stated that, in respect of the criminal action, it had ruled that several provisions of the United Nations Convention on the Law of the Sea, in relation to the protection and preservation of the marine environment, served as a basis for recognition that France had jurisdiction (i) over the case, and (ii) to sanction involuntary oil pollution in this zone caused by a vessel flying a foreign flag and resulting in severe damage to its territorial sea and coast.
Regarding the civil action, on the basis of the International Convention on Civil Liability for Oil Pollution Damage (adopted in 1969 and amended by the 1992 Protocol) (CLC), the Cour de cassation held that those participating in the act of transport who were sued before a criminal judge and who committed a reckless negligence (faute téméraire), could be held liable in respect of all categories of damage for which the Court of Appeal had assessed civil liability. The Cour de cassation therefore held that Total, who had been ruled exempt from civil liability in the Court of Appeal decision of 2010, and which decision held other parties liable for such civil damages, would also be liable for such damages.
Footnotes
1Cass. crim, 25 Septembre 2012, n°10-82.938
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