French Law - Oil Pollution Prosecutions

Assessment Of Three Years' Prosecution By French Courts For Oil Pollution

In 2003, following the casualties of the M/V ERIKA and the PRESTIGE, politicians decided to aggravate the sanctions for oil pollution:

•          The maximum amount of the fines was increased (1 000 000 Euros or the value of the vessel or four times the value of cargo on board and freight) and
•          Specialized Courts were appointed: Le Havre (for the English Channel), Brest (for the Atlantic) and Marseille (for the Mediterranean).

 The undersigned handled 17 cases out of the 30 cases heard by the Court in Brest.

 Three years have now passed, and the position adopted by French Courts may now be assessed:

 1) Controls and investigations

Patrols are made on a regular basis by French Navy and Custom Navy Aircraft. Under article L 218-28 of the French Environment Code, the findings of the pilots of these aircrafts constitute proofs of the events related.

If a pilot spots oil pollution, he takes pictures and/or an infra red video. He then contacts by radio the Master to have his explanation as to the traces noticed in the ship wake. The pilot then immediately reports to the French Authorities. As soon as he lands, the pilot is heard by the police, who keep a copy of the numeric pictures and/or the video. The pictures are immediately sent for analysis to a Court Expert. If the Expert confirms that these pictures show oil pollution, the French Authorities order the vessel to alter course to a French port.

Once the vessel arrived to the port of deviation, he is boarded by Naval Policemen and Port State Control officers. The Police take statements from the Master, Chief Engineer and the duty officer on watch on the bridge. The Port State Control inspects the engine room to try to find the cause of pollution.

Following these initial investigations, the Prosecutor decides on the amount of the deposit to be paid by owners to authorise the vessel to sail.

Before departure from the port, the Master received convocation to appear before the Court to be judged for pollution.

2) Prosecution

Based on the report of the pilot, the pictures and the analysis of these pictures by the Court appointed surveyor, the Master is presumed to have caused pollution. The Master has the burden of proof that he did not cause oil pollution.

Three main defences are available to the Master:

(i)               Challenge the nature of the traces spotted by the aircraft :

These traces may not be hydrocarbons, but may have been caused by another product, having the same appearance (coal dust, cereal dust, )

It is however always difficult to convince the Court that the vessel did not discharged oil, especially when the Court Expert confirms that the traces which appear in the ship wake are oil. As the prosecutor no longer takes samples of the alleged slick, it is more difficult to prove the nature of the products discharged.

(ii)              Accidental oil discharge

In accordance with rule 11 annex I Marpol, Master is not liable for oil discharge resulting from a damage to the ship or its equipment, provided the vessel took all steps to limit the pollution after the discovery of such damage. There again, the Master has the burden of proof of the dysfonctioning of one vessel equipment.

(iii)            Challenge French jurisdiction based on article 228 Montego Bay.

In accordance with Article 228 of the Montego Bay Convention, the Flag State may sue the Master/owners before their own Courts. In such case, the Coastal State must stay proceedings until the judgment is issued by the Courts of the Flag State. At that stage, the Courts of the Coastal State must then put an end to the prosecution.

The Court in Brest had to deal with such argument in three cases, and each time, they refused to apply Montego Bay convention. These three cases are under appeal.

3) Court hearing

 The Court is composed of three judges.

They first hear the Master of the vessel. Then, the Court hears the pilot of the aircraft, the Court Expert who comments the pictures taken by the aircraft as well as the inspector of Port State Control summarizing their findings on the general conditions of the vessel, and the cause of the pollution.

The Court also hears the witnesses called by the defence.

Finally, the Court listens to the pleadings of the environmental associations. In case of condemnation of the Master, the Court will also award damages to these associations to compensate their moral damage.

To date the Court in Brest has dealt with more than 30 pollution cases. They issued only very few judgments dismissing the claim against the Master. The lowest fine imposed by the Court was 40 000 euros, but it concerned a small fishing vessel and the highest fine imposed by the Court in Brest amounted to 800 000 euros, but was reduced on appeal

The total amount of the fines imposed by the Court in Brest and the Court of Appeal in Rennes is difficult to know precisely, but it may be estimated to more than 6 700 000 euros.

4) Impact of these condemnations 

Considering these heavy fines and the publicity made in the newspapers, pollutions were reduced.

Indeed, the number of vessels prosecuted for pollution strongly decreased as from the beginning of these prosecutions:

•         2003: 4 vessels were diverted to Brest
•         2004: 14 vessels were diverted to Brest
•         2005: 7 vessels were diverted to Brest
•         2006: 1 vessel only was diverted to Brest.

 5) Recommendations

 If a vessel is spotted by an aircraft with traces in her wake, the Master must take the following steps:

•        check immediately whether the oily water separator (OWS) is functioning correctly. If so, the vessel should not stop discharging when they spot the aircraft
•          reply to the VHF calls of the pilot. He may give immediately an explanation as to the reasons of the traces in the ship wake, if he knows any.
•          ask the pilot of the aircraft to take samples in the ship wake to prove that they did not discharge oil. If the vessel is too far from French Coast, it will not be possible for the French authorities to take a sample. In such case, the Master has to inform the pilot that the vessel will collect themselves samples of the alleged slick to prove that it is not oil.
•          It is crucial not to carry out any investigation in the engine room and to wait for the police and Port State Control to be on board to try to find the cause of such oil pollution. In particular the OWS should not be dismantled until the arrival of the police.

 Conclusion

 It is undisputable that the number of ships accused of oil pollution was considerably reduced. As always, there are contradictory interpretations:

•         Some say that the shipowners now run the OWS in international waters and/or off Portugal/Spain and/or during the night
•         Some say that the shipowners now discharge the oily water/sludge ashore and do not use their OWS
•         Some argue that it is due to the retirement of the French Court Expert in January 2006

The real cause may be known in several months, when the new aircraft POLMAR III will enter in service, as it should be capable to detect night pollutions.

Christophe Nicolas Avocat la Cour, RICHEMONT NICOLAS & ASSOCIES, PARIS