‘Avocat général’ Didier Boccon-Gibod at the French Cour de cassation, issued his opinion on 24 May, in the Erika case. On 12 December 1999 the Erika broke in half 40 miles off the coast of Brittany. More than 10 000 tonnes of heavy fuel oil were spilt, evidently leading to an ecological disaster of serious proportions. As is not unusual in cases with so much at stake, litigation is still ongoing.
Of some relevance in the case at issue (thank you to prof Philippe Delebecque at Sorbonne for pointing that out to me), the injured parties decided to hinge their wagon unto the criminal prosecution. This saves resources, as the bulk of the procedure is left to the prosecution service to pursue. However it has the obvious disadvantage that the injured parties lose some of their hold on the course of the arguments run, and, even more importantly, that the case in the main turns into a criminal prosecution, with an accidental (no pun intended) civil angle to it. Criminal law determines the outcome.
The ‘Avocat général’, to I understand loud criticism, advises the Court to annul the Court of Appeal’s conviction of the defendants (including Total and the classification society, Rina). His grounds for doing so are based on his analysis of relevant international treaties, leading him to conclude that France has no jurisdiction criminally to prosecute oil spills occurring in its exclusive economic zone (even if the consequences were felt firmly on French soil). The ship having Malta as its flag State, Malta should have taking the helm.
It has been pointed out over at the UK human rights blog that it seems awkward that the result of the Opinion, if followed, would be that ‘France cannot prosecute a French-controlled company for devastating French beaches via an oil spill in the French EEZ.’
An excellent summary of the consequences and reasoning may be found here, in French. I do not have a weblink to the Opinion however I do have an E-copy in French – interested readers, just send me a mail.