Judicial Training and research on EU crimes against environment and maritime pollution

Judicial Training and research on EU crimes against environment and maritime pollution December 6th, 2012 Can International Law prevent French stammering legislation on environmental and maritime crimes to apply and to develop ? The Erika case BenoîtPETIT Associate professor of law, University of Versailles (France) Co-director of the ODERSE Observatory Lawyer

Judicial Training and research on EU crimes against environment and maritime pollution Let’s go back quickly to the facts… The “Erika” Shipwreck Case - Facts & Proceedings French EEZ

Judicial Training and research on EU crimes against environment and maritime pollution Let’s go back quickly to the facts…

Judicial Training and research on EU crimes against environment and maritime pollution Let’s go back quickly to the facts… SHIPWRECK ACTORS & TRIAL DEFENDANTS ShipCaptain: Mr. Karun MATHUR ShipOwner: TEVERE SHIPPING Cie Lim. (Malta) Owned by AGOSTA INVESTMENTS (Liberia) & FINANCIAL SHIPPING CORP. (Liberia) Bearersharesbenefit : Mr. Guiseppe SAVARESE Ship Manager : PANSHIP (Italy) Owned by Mr. Antonio POLLARA Certification Cie : SpA RINA (Italy) By delegation for MALTA MARITIME AUTHORITIES Charterer: TOTAL (via SELMONT & TOTAL subsidiaries)

Judicial Training and research on EU crimes against environment and maritime pollution Let’s go back quickly to the facts… SHIPWRECK ACTORS & TRIAL DEFENDANTS Time line 1975 : Shipisbuilt 1993 : TEVERE becomesowner 1997, May 31st : Agreement between TEVERE & PANSHIP for Shipmanagment 1998, May : Shiprepairedafter 11 deficiencyreported 1998, Aug. 15th & Dec. 16th : Certification delivered by SpA RINA 1999, Sept.: SELMONT takes on Charter operations 1999, Nov. Charter agreement between SELMONT & TOTAL TOTAL takes on vettingoperations 1999, Nov. 24th : Certification renewed by SpA RINA 1999, Dec. 7th : Departure 1999, Dec. 11th & 12th : Shipwreck

Judicial Training and research on EU crimes against environment and maritime pollution Let’s go back quickly to the facts… Conclusions of the Prior-Trial investigations Inquieryreveals : Shiprepairswereinadequategiven the deficiencies (corrosion) thataffected the ship’s body ; SpA RINA delivered the certificateswithoutconsideringthese defaults ; The vettingoperationstaked on by TOTAL should have lead the Charterer to refuse to charter the ship ; Therefor, if the differentshipactorshadshowed more caution, the shipwreckcould have been prevented The shipweckactors are thus sent to Trial for involontary pollution by hydrocarbon & endangering the crew

Judicial Training and research on EU crimes against environment and maritime pollution Let’s go back quickly to the facts… Tribunal Correctionnel of Paris, Jan. 16, 2008 Everydefendantisdischarged on the basis of endangering the crew ; Shipcaptain and Charterers (SELMONT and TOTAL subsidiairies) are discharged of involontary pollution by hydrocarbon ; SpA RINA, Shipowner (TEVERE), Ship manager (PANSHIP) and TOTAL (vettingoperations) are sentenced for involontary pollution by hydrocarbon Public prosecutor, defendants and plaintiffs all seekappeal.

Judicial Training and research on EU crimes against environment and maritime pollution Let’s go back quickly to the facts… Cour d’appel de Paris, 30 mars 2010 First jurisdictiondecisionisconfirmed, except on it’slegal and conventionnal argumentation

Judicial Training and research on EU crimes against environment and maritime pollution Cour de cassation (Supreme Court) Chambre Crim., 25 septembre 2012, n° 10-82.938, Erika 3 questions to deal with (on the criminal aspects of the case) : 1 – Can the French 1983 law (art.8) apply to the Erika case ? 2 – Are the French jurisdictions competent to rule the Erika case ? 3 – Who is guilty and to which extent ?

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? What do the MONTEGO BAY Convention rules say ? Part V – Rules concerning EEZ Art. 56 : Rights, jurisdictions and obligations of Coastal countries in their EEZ Coastal countries have sovereign rights in order to protect sea environment. Coastal countries’ jurisdictions are competent for ruling issues that deal with sea environment protection, in respect of the rights and obligations of other countries

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? What do the MONTEGO BAY Convention rules say ? Part IX – Protection of sea environment Art. 211 - Ship pollution In order to protect sea environment, Coastal countries may enforce specific legislation for their EEZ, if this legislation complies with International law rules (§ 5).

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? What do the MONTEGO BAY Convention rules say ? Part IX – Protection of sea environment Art. 221 – Measures to prevent sea pollution after ship accident Any country can take, beyond it’s home seas, proportionate measures to protect their coasts and linked interests.

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? What do the MARPOL Convention rules say ? Art. 4 – Offenses All offenses to the MARPOL rules are ruled by the ship Flag’s country’s legislation, wherever this offense took place (§1) If the offense took place in the jurisdiction of another country, this country can either prosecute, or give all information to the ship Flag’s country in order to demonstrate the offense (§2) Legislations under which the offense is prosecuted must lead, by their rigour, to discourage all possible offender, and be of equal severity wherever the offense took place (§ 4).

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? What do the MARPOL Convention rules say ? Apx I – Prevention of pollution by oil Rule 9 – Hydrocarbon waste dumping is forbidden, except in specific situations (ship/crew security). Taking in consideration Preamble as well as art.2 (definitions), the ban applies also to non-intentional dumping. The offense opens prosecution against Captain and owner. Rule 11 – The Rule 9 offense does not apply if the dumping follows a shipwreck accident and if all reasonable precautions have been taken to prevent or reduce the damages caused (except if intentional fault of the Captain or owner).

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? What does French 1983 law rule ? Art. 8 Carelessness, negligence & non-observance of legislation rules that have lead to a sea damage (as defined by the Brussels Conv.) are punished in the person of the Ship Captain, or the person in charge of the Ship’s conduct or exploitation on board, if this sea damage has lead to the pollution of home waters, and if these people have provoked the accident or didn’t take the necessary measures to avoid it. Are also punished in the same conditions, the Ship owner, the Ship manager and more generally all people that have a control or leadership power on the Ship

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? TOTAL’s first argument : Art.8 is not a specific legislation that can apply to EEZ, according to MONTEGO BAY Rules, in order to protect sea environment. Indeed, Art.8 does not mention that it applies to EEZ, nor refers to MARPOL, which is not the case, for example, for Art.7 (on reporting obligations) And French penal Code rules that French legislation (except specific mention) applies only to home territory and seas. Therefore, there is no French legal basis to prosecute a foreign ship that has caused an non-intentional waste dumping pollution in EEZ.

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? SC Public Prosecutor rejects TOTAL’s first argument : 1 – 1983 French legislator’s intention was to deliberately not refer to MARPOL Conv. because he considered that International law conditions to prosecute non-intentional sea pollutions were too concilatory with the people in charge. 2 – 1983 French law applies to all pollutions that affect home waters, whatever their origins... Which is very different than MARPOL rules (which aim the waste dumping place) 3 – 1983 French law does not enforce any exemption, at the difference of MARPOL rules 4 – 1983 French law opens prosecution to more people than MARPOL

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? SC Public Prosecutor rejects TOTAL’s first argument : Therefor, 1 – 1983 French law (art. 8) clearly does not transpose MARPOL Rules and offense 2 – No matter the fact that French law doesn’t explicitly say it applies to damages in EEZ, by choosing an offense that builds up as soon as home waters are polluted, whatever the origins of the damage, it intends to protect sea environment accordingly to MONTEGO BAY Rules French 1983 law (art.8) is therefor an autonomous offense, and a specific legislation accordingly to MONTEGO BAY Rules.

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? French Supreme Court follows SC Public Prosecutor’s argumentation on this issue. Court of Appeal’s decision is therefor confirmed on this point.

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? TOTAL’s second argument : If we consider that French 1983 law (art.8) is a specific legislation that can possibly open prosecution, accordingly to MONTEGO BAY, it must nevertheless comply with International Rules. MARPOL Rules fix the conditions under which a non-intentional waste dumping pollution caused in EEZ can be prosecuted. French 1983 law (art.8) enforces very different conditions, that are more severe than MARPOL Rules. Therefor, French law does not comply with International Rules, and cannot apply to the case, according to MONTEGO BAY Rules.

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? SC Public Prosecutor agrees with TOTAL’s second argument : 1 – French 1983 law (art.8) is more severe than MARPOL Rules, because • Rule 11 opens an exemption cause that is not enforced by French law • French law opens prosecution to a larger range of people than MARPOL Yet, the need of “complying” means to enforce identical rules. 2 – MARPOL (art. 4) says that the legislation under which the prosecution is lead must be of equal severity wherever the damage took place. Therefor, if French law is more severe than MARPOL Rules, the fact that MARPOL strictly defines the rules for EEZ, French law thus leads to apply a more severe legislation for it’s home waters than for EEZ.

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? Supreme Court doesn’t follow TOTAL and Public Prosecutor on this issue 1 – Concerning Rule 9, it is very clear that MARPOL points an offense that aims the “ship”, which has no ability to have rights and duties. As for Rule 11, it only limits the possibility of exemption to 2 actors, which does not mean that the entire offense concerns only these two actors. Therefor, MARPOL does not force French legislation to aim the offense only towards 2 specific actors On this point, Supreme Court confirms the Court of Appeal’s argumentation.

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? Supreme Court doesn’t follow TOTAL and Public Prosecutor on this issue 2 – Indeed, French 1983 law (art.8) appears to me more severe than MARPOL Rules, since it doesn’t enforce the Rule 11 exemption cause, and because it opens prosecution on the basis of a negligence fault whereas MARPOL Rules opens prosecution for the Captain and the Owner on the basis of either an intentional fault, or a recklessness fault with conscience of possible danger. Core differences ? Or only a more severe application that extends MARPOL Rules intentions ?

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? Supreme Court doesn’t follow TOTAL and Public Prosecutor on this issue MARPOL (Art.4) invites countries to enforce rigorous legislations in order to dissuade possible offenders. MONTEGO BAY insists on the responsibilities of a country to protect it’s sea environment The Lotus case precedent (1923) admitted that a country could prosecute offenses that took place beyond it’s territorial jurisdiction if one of it’s rightful interests was violated. Therefor, French 1983 law complies with International law because it’s more severe conditions marry with MONTEGO BAY and MARPOL aims and goals. There are no core differences between these texts.

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? Thus, Supreme Court confirms Court of Appeal’s argumentation on this point. Even if Supreme Court doesn’t take over this Court of Appeal’s argument, let’s keep in mind that the Vienna Convention (1969, May 23rd)says an International law is interpreted in the light of its object and goals.

Judicial Training and research on EU crimes against environment and maritime pollution I - Can the French 1983 law (art.8) apply to the Erika case ? On the fringe of this issue, Supreme Court also rules that Rule 11 does not apply to the case, since no reasonable precautions have been taken immediately after the waste dumping occurred or has been revealed. Therefor, Supreme Court holds a very strict interpretation of the notion of “reasonable precaution”.

Judicial Training and research on EU crimes against environment and maritime pollution I – What’s the situation ? French law enacts a autonomous offense, on the basis of protecting sea environment. This offense is legal, because it complies with International law (more precisely, doesn’t contradict MARPOL’s offense). Nevertheless, MARPOL also enacts a specific offense. So, the Erika case leads, theoretically, to 2 possible offenses on which it is possible to prosecute.

Judicial Training and research on EU crimes against environment and maritime pollution II – Are French jurisdictions competent to rule the Erika case? French 1983 law (art. 8) is a legal basis for prosecution. But were the French jurisdictions competent to rule the case ? According to Supreme Court, « The offense of non volontary pollution has causedserious damages to the coastal State » : French jurisdictions are competent on the basis of the place where the damages have been observed. MontegoBay, Art. 220, § 6 : coastal State canprosecute pollution offenses thatoccurbeyondit’sterritory and which have causedserious damages (becausethis State isgloballycompetent to protectit’s maritime environment , on the basis of MontegoBay, Art. 56, §1) BUT MontegoBay, Art. 228 : if coastal State prosecuted on the basis of Art. 220 §6, it must suspend it’s action if the ship’s Flag State has alsoprosecuted on the basis of Marpolrulesconcerningcompetentjurisdictions.

Judicial Training and research on EU crimes against environment and maritime pollution II – Are French jurisdictions competent to rule the Erika case? In fact, Malta neverprosecuted on the basis of MARPOL rules Therefor, French criminaljurisdictions are competenton the basis of MONTEGO BAY rules, because MARPOL rules have not been used. Note : French 1983 law has been changed by a 2004 law (march 9th) whichnowrulesthat 1983 lawalsoapplies to offenses thattake place in the French EEZ.

Judicial Training and research on EU crimes against environment and maritime pollution II – Are French jurisdictions competent to rule the Erika case? In the Erika context : French criminaljurisdictionswerecompetent on the basis of International rulesconcerningSeaenvironment protection becausetheserules admit that in case of serious damages caused by a sea pollution, itis possible to prosecute ; thisanalysisisbased on the waste dumpings’ consequences. Malta criminaljurisdictionswereuppermostcompetent on the basis of Marpolrulesconcerningsea pollution offenses in EEZ, becauseMarpolgives a priority to analysisbased on the waste dumpings initial place. But if no criminal action isengaged on the basis of waste dumpings initial place analysis, thencriminal action is possible on the basis of waste dumping consequences.

Judicial Training and research on EU crimes against environment and maritime pollution II – Are French jurisdictions competent to rule the Erika case? Nowadays, according to French 2004 law, French criminaljurisdictionscanalsobecompetent on the basis of a waste dumping initial place analysis, if the shipflag’s State does not prosecute. The legal basis for French jurisdictionscompetenceis more solid, but remains the problem of Marpolaccording a priority to ship’s Flag State jurisdictions… France isonlycompetentbecause Malta stayedsilent… If ithadn’t, France wouldnever have been competent, or at least, onlyafter Malta ruled the case.

Judicial Training and research on EU crimes against environment and maritime pollution III – Criminal Responsibilities : who is guilty ? The owner of the ship: numerousseriousfaults * Provided an oldshipwith corrosion defaults ; * Underevaluation of repairingwork ; * Negligencewithmaintainance ;

Judicial Training and research on EU crimes against environment and maritime pollution III – Criminal Responsibilities : who is guilty ? The ship manager : numerousseriousfaults * Same as the shipowner + * Knewthattherewere cracks in the ship’s tanks, but gave no alert

Judicial Training and research on EU crimes against environment and maritime pollution III – Criminal Responsibilities : who is guilty ? The charter company (Total SA) : Let’sremindthat in the Court of Appeal’sdecision, TOTAL was not foundguilty in a waythatled to engage it’s civil responsibility. For the Supreme Court, the vettingprocess gave the charter company a clearmastery of the ship, because Total was able to inspect all aspects of the ship’s condition and all documents concerning the ship. This processshould have dissuade Total to loadit’s cargo in the ship, and order the trip.

Judicial Training and research on EU crimes against environment and maritime pollution III – Criminal Responsibilities : who is guilty ? For the Court of Appeal, Total wasguilty of only a « negligence » fault, withoutsufficientawareness of a possible damaging pollution, becauseitdid not have all the informations necessary to oppose the ship’sdeparture. But for the Supreme Court, the vettingprocesswassufficient to concludethat Total SA did have (or could have had) all the informations necessary to oppose the ship’sdeparture. Therefore, the faultis a « recklessness » faultwith conscience of possible damages, thatcanbeassimilated to an intentionalfault. Total’scriminalresponsibilityis, thus, increased, and givesway to sentence the company on the basis of civil liability. .

Judicial Training and research on EU crimes against environment and maritime pollution Consequences and limits of the Supreme Court’s decision Direct consequences 1 – International law must betaken in accountglobally, on the basis of networking all the relevant Conventions, which leads to focus on the « aims » of eachtext (crackdown and preventSea pollution), more than on theirspecificrules ; 2 – Criminalresponsibilities are fixedaccording to the possibilities of information thatactor’sbehaviourshouldideallygivethem, and not according to the informations thattheyactuallydetainbecause of theirbehaviour. .

Judicial Training and research on EU crimes against environment and maritime pollution Consequences and limits of the Supreme Court’s decision Indirectly Coastal States that are victim of Sea pollution have theirword to give on the judicialtreatment of Sea pollution offenses, becauseitis the counterpart of theirresponsibilities to act in favor of preservingSeaenvironment… This illustrates the wish to go back to the « Lotus » case law spirit, as well as a global disapproval of how the International Conventions have been conceivedthesepastyears (potentiallytoo protective of economicinterests, and insuffisciently protective of generalinterest) .

Judicial Training and research on EU crimes against environment and maritime pollution Consequences and limits of the Supreme Court’s decision Ruled in 1927 In high seas zone, a French shipcollapsedwith a Turkshship and causedmanydeaths. When French ship came alongside of Istanbul, French captainwasarrested and prosecutedunderTurkishlaw. France disputedTurkishjudicialcompetencebecause the accident took place beyondTurkishterritory. Permanent International Court of Justice ruledthatif a State isvictim of an offense committedelsewherethan in it’s territorial jurisdiction (e.g., high seas zone), thenitiscompetent to rule the case. In order to preventthisdecision to apply, International law has enacted explicit sets of rulesthat organises differently the question of judicialcompetence : MontegoBay, art. 97 : if the criminalresponsibility of the shipcaptain/crewmemberisengaged, then the jurisdictioncompetenceisgiven to the ship’s Flag State. (Not the case here, in Erika case) Marpolrules on EEZ .

Judicial Training and research on EU crimes against environment and maritime pollution Consequences and limits of the Supreme Court’s decision Remains a major problemthat State law and case lawcannotsolve, because International lawismuchtoo explicite on the issue : the centrality of the Flag State’sstatus. Thanks to thiscentrality and the judicial/legalpowersattached, some countries attractnumerouseconomicinterests by enactingveryweaklaws on the issues of environmental protection and criminal/civil responsibilities… These States being not necessarlyconcerned by damages caused by Sea pollution (verylittlecoastalterritories). .

Judicial Training and research on EU crimes against environment and maritime pollution Consequences and limits of the Supreme Court’s decision • Initially, the responsibility system wasstructuredunder the principe « One shipcompany » : eachshipwasowned by one company, thiscompanybeingresponsible of all damages itcaused. • Oilcompaniesthereforownedtheirshipvia subsidiariesthatwouldbe the onlylegalresponsibles of possible damages • But « Amoco Cadiz » decision (jan. 1992) ruledthat parent companieswereresponsible for theirsubsidiaries… .

Judicial Training and research on EU crimes against environment and maritime pollution Consequences and limits of the Supreme Court’s decision • In response to the Amoco decision : 1 – Oilcompaniesdecided not to ownanymoretheirships, and to beonly charter companies ; 2 – Oilcompanieslobbied States for a change of the « International Convention on Civil Liability for Oil pollution damage » (1969), whichtheyobtained in 1992. Theywantedthis Convention to focus only on the owner’sresponsibility, and not on the charter companies’ .

Judicial Training and research on EU crimes against environment and maritime pollution Consequences and limits of the Supreme Court’s decision • Nowadays, the CLC rulesthat the Charter companyisresponsibleonly if the damages result of theirintentionnalfault… • This iswhy the French Court of Appeal, whorecognizedTotal’scriminalfault, did not sentence it on the basis of civil liability… becauseTotal’sfaultwas not intentionalaccording to theiranalysis. • And thisiswhy the Supreme Court disapproved on this point the Court of Appeal, and recognized a fault of Total thatcanbeassimilated to an intentionalfault… therefore, Total wassentenced on Civil liability basis. .

Judicial Training and research on EU crimes against environment and maritime pollution Consequences and limits of the Supreme Court’s decision • 1 – This decisiondoes not solve the problem of Flags of compliance… becauseitcan’t. This statusprotects the shipowners and stilldisrupts the issue of the Judicialcompetences (France wascompetentbecause Malta didn’tprosecute !) • 2 – Total wasfoundresponsiblebecauseitdecided to go into a volontaryvettingprocess. If ithadn’t, the CLC would have protected the charter companytotally. • « Total gave the stick withwhichit’s been beat »… but what if ithadn’t ? What if Total haddecided to charter the shiponlyafter an adjudication in order to have a independantcompany select the good ship ? .

Judicial Training and research on EU crimes against environment and maritime pollution Consequences and limits of the Supreme Court’s decision Therefor, the major issue now for International Sealawis to restructure itselfaround the ideathat the States that must now have a central status and legal/judicial power to ruleSea pollution offenses, must bethosethat are the potentialvictims of these offenses, at least concerning EEZ (since « Lotus » case lawstillapplies in high seas zones). All proposalsadressed to the EU to improveCriminal maritime law must focus on how to give more power to the States that manage EEZ, as well as how to struggle against Flags of convieniance. Also, itisnecessary to restructer the Charter companiesliabiltyrules. .

Judicial Training and research on EU crimes against environment and maritime pollution Is the Erika case really over ? • According to Total’slawyers, the charter companymight seize the European Court for HumanRights, on the basis thatitisnow possible for a company to seize thisjurisdiction if it’spropertyrights have been violated But this prospect seemsdifficult to argue on a legal basis. Let’swait and see… maybe the Erika case willoffer us new fascinating twists and turns ? .

Judicial Training and research on EU crimes against environment and maritime pollution Thankyou for your attention ! .

Judicial Training and research on EU crimes against environment and maritime pollution