26/29 June - Dipartimento di Scienze Giuridiche Unisalento Room R 24 Judicial Training and research on EU crimes against environment and maritime pollution

26/29 June - Dipartimento di Scienze Giuridiche Unisalento Room R 24

Judicial Training and research on EU crimes against

environment and maritime pollution

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

Can International Law prevent French Can International Law prevent French stammering legislation on environmental stammering legislation on environmental

and maritime crimes to apply and to and maritime crimes to apply and to develop ?develop ?

Dr. Benoît PETITDr. Benoît PETIT

Associate professor of law, University of Versailles (France)

Lawyer


The “Erika” Shipwreck CaseThe “Erika” Shipwreck Case

Facts & ProceedingsFacts & Proceedings


The “Erika” Shipwreck Case - The “Erika” Shipwreck Case - Facts & Facts & ProceedingsProceedings

French EEZFrench EEZ





SHIPWRECK ACTORS & TRIAL DEFENDANTS

Ship Captain : Mr. Karun MATHUR

Ship Owner : TEVERE SHIPPING Cie Lim. (Malta)Owned by AGOSTA INVESTMENTS (Liberia) & FINANCIAL SHIPPING CORP. (Liberia)Bearer shares benefit : 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)



Time line

1975 : Ship is built1993 : TEVERE becomes owner 1997, May 31st : Agreement between TEVERE & PANSHIP for

Ship managment1998, May : Ship repaired after 11 deficiency reported 1998, Aug. 15th & Dec. 16th : Certification delivered by SpA RINA1999, Sept.: SELMONT takes on Charter operations1999, Nov. Charter agreement between SELMONT & TOTAL

TOTAL takes on vetting operations1999, Nov. 24th : Certification renewed by SpA RINA1999, Dec. 7th : Departure1999, Dec. 11th & 12th : Shipwreck



Tribunal Correctionnel of Paris, Jan. 16, 2008

Every defendant is discharged on the basis of endangering the crew ;

Ship captain and Charterers (SELMONT and TOTAL subsidiairies) are discharged of involontary pollution by hydrocarbon ;

SpA RINA, Ship owner (TEVERE), Ship manager (PANSHIP) and TOTAL (vetting operations) are sentenced for involontary pollution by hydrocarbon

Public prosecutor, defendants and plaintiffs all seek appeal.



Cour d’appel de Paris, 30 mars 2010

First jurisdiction decision is confirmed, except on it’s legal and conventionnal argumentation


The “Erika” Shipwreck Case - The “Erika” Shipwreck Case - Facts & ProceedingsFacts & Proceedings

Conclusions of the Prior-Trial investigations

Inquiery reveals :

Ship repairs were inadequate given the deficiencies (corrosion) that affected the ship’s body ;

SpA RINA delivered the certificates without considering these defaults ;

The vetting operations taked on by TOTAL should have lead the Charterer to refuse to charter the ship ;

Therefore, if the different ship actors had showed more caution, the shipwreck could have been prevented

The shipweck actors are thus sent to Trial for involontary pollution by hydrocarbon & endangering the crew


SummarySummary

Beforehand : Reminder of the basic rules that apply

French law establishes an autonomous offense1st level jurisdiction’s position : MARPOL does not

apply2nd level jurisdiction’s position : MARPOL applies,

French law compliesSupreme Court Public prosecutor’s position :

MARPOL applies, French law doesn’t comply


Beforehand : Beforehand :

Reminder of basic rules concerning maritime Reminder of basic rules concerning maritime pollution prosecution pollution prosecution


Beforehand : Reminder of basic rules Beforehand : Reminder of basic rules concerning maritime pollution prosecution concerning maritime pollution prosecution

The Brussels ConventionBrussels Convention, November 29th, 1969

Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties

France : 1975



Brussels Convention, 1969

Article 1Parties to the present Convention may take such measures on the may take such measures on the

high seas as may be necessary to prevent, mitigate or eliminate high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastlinegrave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful

consequences.



Brussels ConventionBrussels Convention, 1969

Article 2

For the purposes of the present Convention: 1. "Maritime casualty" means a collision of ships, stranding or other incident of collision of ships, stranding or other incident of navigationnavigation, or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or cargo.



The MARPOL Convention (London)MARPOL Convention (London), November 2, 1973

& Appendix

France : October 2nd, 1983



The MARPOL Convention (London), MARPOL Convention (London), 1973

In case of an offense to the MARPOL rules :

Art. 4, §1 – Flag country’s legislation applies

Art. 4, §2 – Other country’s legislation applies if this other country has specific jurisdiction




Rule 9Rule 9, Apx I – Hydrocarbon waste dumpings are forbidden (except , Apx I – Hydrocarbon waste dumpings are forbidden (except very specific situation)very specific situation)

MARPOL Preamble + Art. 2, §3 : the banning concerns voluntary MARPOL Preamble + Art. 2, §3 : the banning concerns voluntary and non-intentional waste dumpingsand non-intentional waste dumpings




Rule 11Rule 11, Apx I – Rule 9 does not apply if :, Apx I – Rule 9 does not apply if :

1 – the waste dumping is necessary for the Ship’s crew survival & 1 – the waste dumping is necessary for the Ship’s crew survival & securitysecurity

2 – the waste dumping is the result of a damage2 – the waste dumping is the result of a damage

* and at the condition all reasonable precautions have been taken * and at the condition all reasonable precautions have been taken after the damage or when the waste dumping is revealedafter the damage or when the waste dumping is revealed

* except if the Ship captain or the Ship owner has acted with the * except if the Ship captain or the Ship owner has acted with the intention of causing tort, or in a reckless way while knowing a tort intention of causing tort, or in a reckless way while knowing a tort would resultwould result




So MARPOL bans non-intentional hydrocarbon waste dumpings, but So MARPOL bans non-intentional hydrocarbon waste dumpings, but makes provision for an exemption cause (makes provision for an exemption cause (a posterioria posteriori) when Ship ) when Ship owner and/or Ship captain did not commit a gross misconduct. owner and/or Ship captain did not commit a gross misconduct.



The Montego Bay ConventionMontego Bay Convention, December 10th, 1982

France : 1994



The Montego Bay ConventionMontego Bay Convention, 1982

• Creates Exclusive Economic Zones (EEZ)

• Coastal country has jurisdiction to protect maritime environment (art. 56)

• For foreign ship cruising in EEZ, Coastal country can apply specific legislation to protect maritime environment IFIF this specific legislation complies with International law rules (art. 221)



The French Penal CodeFrench Penal Code

Art. 113-12 – Art. 113-12 – French criminal law applies beyond home waters when international law allows it



The French law (85-583) of July 5French law (85-583) of July 5thth, 1983, 1983Related to suppression of sea pollution by

hydrocarbon



Art. 7 of French law (85-583) of July 5Art. 7 of French law (85-583) of July 5thth, 1983, 1983

In EEZ and in home waters, Ship Captain of foreign country will be prosecuted if he does not respect his reporting obligations as they are defined in MARPOL Convention.

* *


Beforehand : Reminder of basic rules concerning Beforehand : Reminder of basic rules concerning maritime pollution prosecution maritime pollution prosecution

Art. 8 of French law (85-583) of July 5Art. 8 of French law (85-583) of July 5thth, 1983, 1983

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

* *


How do all these different How do all these different rules apply rules apply

to the “Erika” Case ? to the “Erika” Case ?


Ship Captain, Ship Owner, Charterer & Certification company

have been prosecuted by French judicial authorities on the basis of

Art. 8 of the 1983 French lawArt. 8 of the 1983 French law


Question 1 :Question 1 :

Does French law aim Does French law aim

an autonomous offense an autonomous offense

in comparison to International in comparison to International law ?law ?


Does French law aim an autonomous offense ? Does French law aim an autonomous offense ?

Total’s argument developed in front of the Supreme Court :

1983 French law can not apply to the Erika case because it doesn’t precise that it aims accidents caused by foreign ships, nor accidents caused in EEZ

Therefore, French legislation doesn’t rule accidents that occurred beyond home waters, and particularly EEZ, when the Ship is a foreign one. It is not an application of the International law possibility for Coastal countries to take specific legislation.

Therefore, Flag legislation applies (Malta)



Supreme Court Public Prosecutor rejects the argument and demonstrates that French law aims an autonomous offense.

Like Total, he

1 – Notes that French jurisdiction on foreign ships in EEZ is possible only if a specific legislation provides for this case (Montego Bay) ;

2 – Notes that French 1983 law (art. 8) does not refer to MARPOL Convention, at the difference of other articles of the law that do (like art.7) ;



Supreme Court Public Prosecutor also notes that :

1 – if Montego Bay Conv. admits that Coastal Country can draw up specific legislations to protect maritime sea environment, this aim can’t lead to globally rule out the Flag law jurisdiction principle ;

2 – The fact that Malta is, indeed, a Flag of convenience, doesn’t imply automatically that the Ship is dangerous. Therefore, a Coastal Country cannot act by “self-defense” and impose it’s jurisdiction... Or if it technically can, in regard of the Flag Country’s behaviour, this solution can only be lead by Executive authorities, and not Judicial authorities (Cass. Crim., May 5th, 2009)



Therefore :

- There is no way that France can impose it’s jurisdiction on the Flag country’s jurisdiction, if Montego Bay rules are not respected (specific legislation that complies with International law)

- French 1983 law doesn’t seem to be a specific legislation in regard of Montego Bay rules....

Except if the way it was written is the result of the Legislator’s negligence, in which case it could be interpreted as so.


Does French law aim an autonomous Does French law aim an autonomous offense ? offense ?

But Supreme Court Public Prosecutor also notes that :

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 the MARPOL rules (which aim the waste dumping place)


Does French law aim an autonomous Does French law aim an autonomous offense ? offense ? MARPOL Convention 1983 French Law

Non intentionnal offense ? YES YES

Offense Hydrocarbon waste dumping (Rule 9)

Any home water pollution, whatever the origins

Technically, a pollution implies a soiling condition

Rationae loci Waste dumping place Whatever place as long as home water is polluted

Exemption cause Reasonable precautions after the damage, except intentional

offense (Rule 11)

NO

Who is aimed ? Ship Captain & Ship Owner Any person who has a control or leadership power on Ship


Does French law aim an autonomous Does French law aim an autonomous offense ? offense ?

It is therefore very clear that French 1983 law (art. 8) does not transpose MARPOL rules

But it is also very clear that French 1983 law concerns the Erika case because the consequences of the sea damage did pollute the French home waters, whatever the sea damage origins

1983 French law, article 8, is an autonomous offense that applies... Total’s argument is therefore rejected.


Question 2Question 2

Is French law conflicting with Is French law conflicting with International law, International law,

and thus can not apply to the case ?and thus can not apply to the case ?

Can a country establish it’s own criminal Can a country establish it’s own criminal offense, more severe than International offense, more severe than International

law ?law ?


We know that a Coastal country can We know that a Coastal country can establish it’s own specific legislation as establish it’s own specific legislation as long as it complies with international long as it complies with international

law....law....

3 thesis :3 thesis :

1 – Art. 8 complies with International law, but not MARPOL which is not relevant

2 – Art. 8 complies with MARPOL

3 – Art. 8 does not comply with MARPOL which is the only relevant International convention that applies to the case


11stst level jurisdiction’s position : MARPOL level jurisdiction’s position : MARPOL doesn’t applydoesn’t apply

• Art. 8 complies with the Brussels Conv., therefore has an International law basis • French law aims pollution resulting of a sea accident

• Brussels conv. defines sea accident as a cruising incident or any other event that occurs on board or outside the ship, whose consequences are material damages or a menace of material damages

• Rules 9 and 11 of MARPOL aim Hydrocarbon waste dumpings which are not mentioned by Art. 8

• Art. 8 is independent of Art. 7



SC Public prosecutor rejects these arguments :SC Public prosecutor rejects these arguments :

1 – Brussels Conv. only aims the right for a Coastal 1 – Brussels Conv. only aims the right for a Coastal country to take urgent necessary measures in case country to take urgent necessary measures in case of a ship damage in order to prevent or reduce an of a ship damage in order to prevent or reduce an imminent danger, so it does not apply to Art. 8imminent danger, so it does not apply to Art. 8

2 – The fact that French legislator doesn’t mention 2 – The fact that French legislator doesn’t mention MARPOL in Art.8 does not imply that MARPOL is not MARPOL in Art.8 does not imply that MARPOL is not relevant relevant



But even if we consider MARPOL isn’t relevant But even if we consider MARPOL isn’t relevant (autonomous offense + no reference), Art. 8 must (autonomous offense + no reference), Art. 8 must respect MONTEGO BAY rules :respect MONTEGO BAY rules :

Coastal country has no jurisdiction beyond home Coastal country has no jurisdiction beyond home waters (except for Ships under it’s flag) except if waters (except for Ships under it’s flag) except if it’s specific legislation complies with International it’s specific legislation complies with International law (not the case)law (not the case)


22ndnd level jurisdiction’s position : MARPOL applies, level jurisdiction’s position : MARPOL applies, French law compliesFrench law complies

MARPOL’s definition of waste dumping includes those that result of a sea accident defined by the Brussels Conv.

So MARPOL applies



MARPOL articles do not aim anybody in particular concerning the offenses’ aim.

Rule 9’s offense only aims the Ship, which has no ability to have rights and duties

Rule 11 is an exception of Rule 9. When it aims the Captain and the Owner, it’s only with the intention of limiting the exemption causes. It doesn’t mean that the offense is exclusively aimed towards the Captain and the Owner.

+ Protocol 1, art. 1, says that when the Captain’s report to the Coastal country to inform it of a possible pollution is not complete or impossible to give, then the Owner, the Charterer or the Manager assume the Captain’s obligations



But it is true that Art. 8 is different from MARPOL rules concerning the exemption causes.

Art. 221 Montego Bay admits Coastal countries specific legislations when they “comply” with International law.

It then all depends on how International law is interpreted.

Vienna Conv., May 23Vienna Conv., May 23rd,rd, 1969 1969 says an International law is interpreted in the light of its object and goals.... Which are, for MARPOL, the struggle against waste dumpings & intentional pollutions as well as pollution prevention.



Vienna Convention, art. 31

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose



Finally, Rule 11 does not apply to the case, since no one has taken any measures after the shipwreck, and can therefore not be invoked

Conclusion : MARPOL does apply, but French law complies

because it complies with MARPOL’s object and goals,

and because Rule 11 doesn’t say for sure that the offense only aims Ship captain & owner


Supreme Court Public Prosecutor’s argumentationSupreme Court Public Prosecutor’s argumentation

1 – Concerning the people responsible of the offense

It’s true that MARPOL articles and Rule 9 do not specifically aim Ship captain & owner as the only people responsible of the offense

But Rule 11 is very clear that only Ship captain’s & Ship owners conducts can lead to apply or not the exemption cause.

Therefore, considering other people are aimed by the offense is an abusive interpretation of the MARPOL rules.

Art. 8 is more severe than MARPOL rules.



2 – Does the more severe French legislation comply with MARPOL ?

Art. 8 punishes all faults whereas Rule 11 exempts some cases of faulty misconducts

Art. 8’s offense is committed in a different place than MARPOL



2 – Does the more severe French legislation comply with MARPOL ?

Neither MARPOL nor MONTEGO BAY say that a more severe legislation can be taken by the Coastal country

Art. 4 (MARPOL) says the specific national offense, by it’s rigour, must discourage faulty people, and must be of an equal severity whatever the place it has been committed.

So for the SC Public Prosecutor, the need of “complying” means not only complying with the object and goals, but being identical to the rules


LETS RESUMELETS RESUME

Erika is a foreign ship that shipwrecked in France’s EEZ

>> France has no natural jurisdiction on the Ship

>> Montego bay aim to preserve maritime environment + problems that have occurred with compliance flags cannot justify that France imposes it’s jurisdiction

Therefore, France can only have jurisdiction if it enacts a specific legislation that complies with International law



Art. 8 (French law) is an autonomous offense that can maybe apply if it complies with International law

• Brussels convention is not relevant to say that Art. 8 complies



Art. 8 is quite different from MARPOL Rules

• Aims a pollution offense and not a waste dumping offense

• Seeks no exemption causes & aims any person that has a control or leadership power on the ship

• BUT It is not that clear that MARPOL aims only Ship captain & owner

So Art. 8 is more severe than MARPOL Rules



1st possibility : to comply with International law, national legislation must not be more severe.... It has to punish the offense in the exact same conditions than International law

2nd possibility : to comply with International law, national legislation must respond to the same object and goals.... It can thus be more severe than International law• Art. 31, Vienna Convention 1969 (which the SC Public Prosecutor did not

take in account)


Issues

Strict legalism can lead to environmental laxity, since International law is, by definition, based on the widest consensus possible (less restrictive rules) and relatively static.

Therefore, if International law is the floor & ceiling limit of maritime criminal law, & knowing that the MARPOL exemption cause is rather conciliatory with faulty behaviour, what’s the point ?


Thank you for your attentionThank you for your attention

Documents

26/29 June - Dipartimento di Scienze Giuridiche Unisalento Room R 24 Judicial Training and research on EU crimes against environment and maritime pollution