Asociación Municipal de Pescadores Artesanales de Tumaco and two other associations of fishers claimed damages resulting from an oil spill in Tumaco and Salahonda Bays, on the Pacific Ocean coast of Colombia. This incident occurred on 26 February 1996, during oil loading operations from the terminal to the MV Daedalus. The vessel sailed over the submarine manifold, pulled the loading hose, broke the valve attached to it, and let oil escape into the sea. The pollution caused ecological damage, killed marine animals, and caused economic loss to local fishers. The lawsuit was filed against Ernesto Kaiser Mendoza, the ship's agent; Mesta Shipping Co Ltd, the shipowner; and Empresa Colombiana de Petróleos (Ecopetrol), the terminal operator. The first instance Court dismissed the claim. On appeal, the Court of Appeal (CA) affirmed the decision. The CA held that there was no causal link between the oil spill and the plaintiffs' economic losses. Although the death, disappearance, and migration of fishes, molluscs, and crustaceans was proven, this was not a decisive, exclusive, and definitive factor in the economic losses of the fishers, because other causes, both before and after the incident, also contributed to reduced fishing activities. The economic losses were thus not duly proven. The plaintiffs recurred the decision in cassation before the Supreme Court of Justice (SCJ), alleging an incorrect assessment of the facts and evidence.

Held: The SCJ dismissed the recourse.

The SCJ stated that all obligations to reinstate or compensate damage suppose the occurrence of actual damage, present or future, to person or patrimony. Once damage is proven, it is necessary to prove a causal link between the liable party's conduct and the damage. Then, the normative foundation, criterion, or factor that assigns a legal duty to compensate must be established. The SCJ emphasised the high significance of protecting the environment as a constitutional mandate, evidenced in multiple statutes and international Conventions. Determining liability in environmental claims presented some difficulties regarding the liable party, cause, and causation. The current doctrinal and legislative trend is to establish a strict civil liability regime.

That is the case in respect of the CLC Convention 1969 and its 1976 Protocol, and the Fund Convention 1971 and its 1976 Protocol, all ratified by Colombia. The CLC Convention 1969 seeks to guarantee sufficient compensation for damage caused by 'spills or discharges of oil from ships', 'in the territory, including the territorial sea, of a Contracting State', 'wherever they occur', and by 'contamination dangers created by the international maritime transport of oil in bulk' (arts 1 and 2). The Convention assigns liability to the shipowner 'responsible for all pollution damage caused by oil which has escaped or discharged from the ship as a result of an incident' (art 3.1). It prevents other compensation actions against the owner, its dependents or agents, and any claim that is not in accordance with the Convention (art 3.4). It also establishes joint and several liability for all damages that cannot be reasonably apportioned between the owners of two or more ships causing the spill (art 4). The Convention recognises the jurisdiction of the Courts of the State in whose territory, including the territorial sea, the accident occurs, or where measures have been taken to prevent or minimise them (art 9.1). However, when the fund has been constituted, its apportionment or distribution is administered by a court of the State where it is constituted (art 9.3). This does not exclude the right to bring claims under the jurisdiction of the relevant State against persons causing damage other than shipowners, shipyards, insurers or any persons providing a financial guarantee to cover the owner's liability for pollution damage (arts 6.1, 7.8 and 7.9).

Colombia has ratified the 1992 Protocol to the CLC Convention 1969, art 3.1 of which establishes that a shipowner is liable for any pollution damage caused by its ship as a result of the incident. The shipowner is responsible for all oil damage: not only environmental damage, but also damage caused to persons, their rights, goods, and interests protected by the law. The civil liability established by the CLC 1969 arises regardless of fault. Environmental damage may be caused by wilful misconduct or negligence. However, this is not necessary to generate liability. The absence of negligence does not prevent or exonerate liability, since the legal obligation to compensate derives from environmental contamination by oil, in so far as the shipowner is responsible for all pollution damage caused by a spill or discharge from the ship as a result of an accident. This liability is only exonerated in specific cases (art 3.2). The only elements of this kind of liability are the damage and the causal link. The burden of proof rests with the victim, who, when claiming reparation for its damage, must prove more than environmental damage, but also the effect on its individual rights and the causal link.

At the time of the incident, the CLC Convention 1969 and its 1976 Protocol were in force. However, this regime does not apply, because it governs the shipowner's liability, while the action was directed against the ship's agent and Ecopetrol. Therefore, the liability must be assessed according to a local law applicable to the specific situation and to cases where the CLC regime does not apply. The assessment made by the CA was correct, and showed that the evidence of the economic loss of the plaintiffs was insufficient, and did not provide certainty.