France’s Total decision raises the risk of liability on the high seas

At the end of September, the Paris-based court de Cassation, France's court of last resort, decided that oil company Total was liable for environmental damages caused to French coastal communities by some 30,000 barrels of oil that spilled from the tanker Erika 400km from the Brittany coast in 1999. Total and two other firms involved in the case have been ordered to pay €300,000 in fines and have already paid over €200m in compensation to affected parties, including the French state and fishing communities. Total's lawyers argued against an initial decision by a French court on the basis that the ship sunk outside territorial waters in which France claims sovereignty. French courts should therefore not have jurisdiction over the incident, they said.hideIf any legal action was to be taken, the argument went, it would have to be lodged in a court in Malta, the country that lent its flag to the tanker. Intermediary levels of the French justice system accepted this argument. However, the original decision to hold Total criminally and civilly responsible for the damages under French law was upheld by court de Cassation. In the opinion of experts, the top judges actually toughened the verdict and in turn tightened environmental liability law. The judges ruled that French courts had authority over the case because the oil damaged French coastal regions. And they condemned the choice of shipping partners made by the oil firm, noted Jean Pierre Beurier, an emeritus professor of Maritime Law at the University of Nantes. "The judges did not say at any moment that the oil company was responsible for the shipwreck," he said. "The argument was that the choice of the ship to carry the oil was made in a somewhat careless way." Mr Beurier also noted that the judges embraced the concept of ecological damage, which means that compensation for damages to the environment can go beyond the sheer economic loss caused by a disaster. But he also said that the decision does not imply a restriction to the freedom of shipping in international waters-as has been mooted by industry players that fear the extension of the French law to international waters. In the opinion of Anne Gallais-Bouchet, Head of Research at ISEMAR, a think-tank on maritime economy issues, the verdict was a positive development as it addresses fears raised by the use of shipping firms from jurisdictions known as flags of convenience. "It was a welcome decision in the sense that it recognises the right of coastal nations to pursue their rights when they feel that their environment has been damaged," she said. But it could create uncertainty in the shipping industry. "Beforehand, shippers and owners of the merchandise being transported knew that they answered to the laws of the country where the ship was registered. But now the door has been opened for them to be judged by other countries too," Ms Gallais-Bouchet said. She also believes that the decision could reverberate across other legal systems. For instance in those countries that are signatories of the United Nation's Montego Bay Convention on the Law of the Sea. She also said that marine insurers could become more demanding about the security of cargoes as a result of the verdict.

France’s Total decision raises the risk of liability on the high seas

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