Erika and Prestige judgements delivered

Judgement by the Court of Cassation in respect of the Erika incident
A judgement was rendered in respect of the Erika incident on 25 September 2012 by the Criminal Section of the Court of Cassation. It followed an appeal by the representative of the shipowner (Tevere Shipping), the president of the management company (Panship Management and Services Srl), the classification society (RINA) and Total SA against a judgement by the Court of Appeal in Paris which had held all four parties criminally liable for the offence of causing pollution. The Court of Appeal had also held that Total SA was exempt of civil liability but had confirmed the civil liability imposed on the other three parties.
Details of the latest judgement are provided in document IOPC/OCT12/3/5/1, which is available via the IOPC Funds’ Document Services section of the website (www.iopcfunds.org). The full 320-page judgement is available in French via the incidents section of the website.
Under the latest judgement, for the most part, the Court of Cassation has confirmed the decisions of the Court of Appeal. However, in relation to RINA, the Court of Cassation decided that the Court of Appeal had been wrong in deciding that a classification society could not benefit from the channelling provisions contained in Article III.4 of the 1992 Civil Liability Convention (CLC). The Court decided, however, that the damage had resulted from RINA’s recklessness and that therefore RINA could not rely on the protection awarded by the 1992 CLC.
In relation to Total SA, the Court of Cassation quashed the decision by the Court of Appeal and decided that, since the damage had resulted from Total SA’s recklessness, it could not rely on the protection awarded by the 1992 CLC.
Impact on the 1992 Fund
All civil parties who had been awarded damages by the first instance judgement or by the Court of Appeal in Paris have been paid or have been offered compensation by Total SA and RINA. The judgement by the Court of Cassation will have no financial impact on the 1992 Fund which was not a defendant. However, the judgement is important and the IOPC Funds’ Director intends to examine it in detail with the 1992 Fund’s French lawyer and to report to the 1992 Fund Executive Committee at its spring 2013 session.
Judgement by the New York Court of Appeal in respect of the Prestige incident
In August 2012, the New York Court of Appeal delivered its judgement in respect of the legal action brought by Spain against the classification society of the Prestige, the American Bureau of Shipping (ABS). In its judgement, the Court held that the Spanish State had not established that ABS had acted in a reckless manner and therefore rejected Spain’s claim.
Details of the judgement are provided in document IOPC/OCT12/3/6/1, which is available via the IOPC Funds’ Document Services section of the website (www.iopcfunds.org). The judgement in its original English language version is available via the Incidents section of the website.
Impact on the 1992 Fund
In October 2004 the Executive Committee had decided that the 1992 Fund should not take recourse action against ABS in the United States. It had further decided to defer any decision on recourse action against ABS in Spain until further details surrounding the cause of the Prestige incident came to light. The Director had been instructed to follow the on-going litigation in the United States, monitor the on-going investigations into the cause of the incident and take any steps necessary to protect the 1992 Fund’s interests in any relevant jurisdiction.
Under French law, a ten-year time bar period would be applicable for a recourse action by the 1992 Fund against ABS in France which means that, since the incident took place on 13 November 2002, the Fund would have to bring an action against ABS in France before 13 November 2012 to avoid a possible recourse action becoming time-barred.
At its October 2012 session, the 1992 Fund Executive Committee will be invited to consider the prospects and legal implications of a possible recourse action of the 1992 Fund against ABS in France, taking into account a number of developments, including the recent jurisprudence in France attaching civil liability to a classification society for the damage caused by the pollution resulting from the Erika incident. The Committee will decide whether the 1992 Fund should bring a recourse action against ABS in France prior to 13 November 2012.