On 12 December 1999, the Erika, an oil tanker chartered by Total to carry nearly 31,000 tonnes of heavy fuel oil, sank off the coast of Brittany, causing extensive pollution along the French coastline.
The vessel, operated by a single-ship company, was certified by one of the world’s leading classification societies, RINA, and had just undergone a full maintenance survey at Bigela, in Yugoslavia.
Represented by the firm from 2001 onwards, with the assistance of three lawyers from the firm Gide Loyrette Nouel, Total was sued in its capacity as the charterer of the vessel, alongside all the other parties involved (the vessel’s Italian shipowner; its technical manager; the Greek owner of the one-ship company operating the vessel; the ship’s Indian captain; the Italian classification society RINA; and four shore-based rescue coordinators).
Following eight years of preliminary investigations, four months of hearings and seven months of deliberation, on 16 January 2008 the Paris Criminal Court handed down a judgement sentencing the RINA certification body, Total, the shipowner and the technical manager to the maximum criminal fine applicable, and ordering them to pay 192 million euros in damages to the civil parties.
On 30 March 2010, the Paris Court of Appeal overturned this judgement, upholding in particular the civil immunity of Total SA, in its capacity as charterer of the vessel, pursuant to the 1992 International Convention on Civil Liability for Oil Pollution Damage; which effectively establishes a mechanism for ‘channelling ’ mechanism for civil liability in the event of marine pollution, centred on the shipowner, and offering various parties involved in the transport of oil – and in particular the charterer of the vessel – immunity that can only be waived in the event of intentional pollution by those parties, or pollution resulting from their acts or omissions ‘committed recklessly and with the knowledge that such damage would probably result ’.
Only the criminal conviction resulting in a fine was upheld, on the grounds of the company’s failure to properly apply its internal vetting procedures (designed to strengthen the selection criteria for vessels chartered by the group).
This judgement was the subject of a partial quashing without referral by a judgement of 25 September 2012. The Paris Court of Appeal had applied the aforementioned protective provisions of the 1992 CLC Convention in favour of Total SA, noting that whilst Total could be held criminally liable for having “chartered the Erika without complying with the rules it had itself put in place to avoid the risk of chartering a vessel unfit for the carriage of highly polluting products”, it could not ‘be asserted that the representative of that company (who committed the breach) was aware that, by acting in this way, damage caused by pollution would probably result.’
Taking up the grounds of appeal set out in the Court of Appeal’s judgment regarding the consequences and scope of Total’s failure to comply with its own vetting rules (the Court of Appeal essentially states that a vetting carried out in accordance with the prescribed conditions and time limits would have revealed the Erika’s unsuitability for the intended transport), the Court of Cassation reclassified the fault identified by the Court of Appeal, stating that the facts in fact constituted reckless conduct within the meaning of the CLC, ‘and that it (follows) that (the) representative (of Total SA) was necessarily aware that pollution damage would probably result’.
The Court of Cassation thus ruled against the opinion of the Advocate General, who had, for his part, unequivocally and without qualification called for the proceedings to be declared null and void from the outset on the grounds of non-compliance with international treaties signed by France concerning the location of the incident, which occurred outside territorial waters, which should have led to the quashing erga omnes of the convictions – however limited – in the Paris Court of Appeal’s judgement.
The press as a whole, misjudging the status of prosecutors before the Court of Cassation, believed they saw in this the spectre of government interference in the proceedings. Combined with Total’s unpopularity and public opinion favouring a conviction, this misconception on the part of the press undoubtedly had an impact on the final decision. This judgment, delivered without referral, brought an end to the legal dispute that had arisen and unfolded over thirteen years.