This was an appeal against the judgment of the Paris Court of Appeal, Chamber 4-11, dated March 30, 2010, which fined RINA SpA and Total SA for the pollution of French waters or waterways following a marine accident in the French exclusive economic zone (EEZ) by the tanker Erika, and pronounced on civil interests. On Saturday 11 December 1999, while loaded with a cargo of 30,884 tonnes of heavy fuel oil on a trip from Dunkirk to Livorno (Italy), the Erika, flying the Maltese flag, suffered a structural failure while crossing the Bay of Biscay in bad weather. This led, on 12 December, to the sinking of the ship about 30 nautical miles south of the tip of Penmarc'h in Brittany. A significant part of the ship's cargo and holds spilled into the ocean. Due to the direction of the winds and the nature of the product transported, the damage resulting from this release reached the coast a few days later and affected several hundreds of kms of coastline.

On 15 December 1999, a judicial investigation was opened against the master of the Erika and 'unnamed legal persons'. This investigation revealed that the ship Erika, built in 1975, belonged to the owner Tevere Shipping Co Ltd, a company registered in Malta. This company had entrusted its commercial management to Selmont International, registered in the Bahamas, and its technical management, in particular its maintenance, the verification of its condition, the obtaining of class and certificates, as well as the recruitment of the crew, to Panship Management. The Italian classification society RINA SpA had intervened in this capacity.

The first Judges convicted the directors of Tevere Shipping Co Ltd and Panship Management, as well as RINA SpA and Total SA. On the civil action, the Court, which declared inadmissible some of the civil party constitutions and which considered that the transaction signed by one of them with the International Compensation Fund for damages due to pollution by hydrocarbons (the IOPC Fund) could not benefit third party defendants, decided that the common law of civil liability was applicable to all the defendants, none of whom could take advantage of the provisions of the CLC Convention 1992, limiting their liability and channeling it onto the owner. The Court of Appeal upheld the judgment on the criminal action; on the civil action, it restricted the list of debtors of damages by recognising Total SA's capacity as charterer and thereby protected from liability under art 3.4 of the CLC Convention 1992.

Held: Rejection and partial cassation without referral.

The French courts have jurisdiction to determine both criminal and civil liabilities even though the sinking of the vessel took place in the French EEZ and not within its territorial waters. By the combined application of arts 220.6, 211.5 and 228 of UNCLOS, when proceedings have been instituted by the coastal State with a view to repressing an infringement of the applicable laws and regulations or of international rules and standards aimed at to prevent, reduce and control pollution by ships committed beyond its territorial sea by a foreign ship, the jurisdiction of this State is acquired when it relates to a case of serious damage.

Since the IOPC had not intervened in the criminal proceedings, it is not bound by any judgment or decision in the proceedings (art 7.5 of the Fund Convention 1992).

Under art 9.2 of the CLC Convention 1992, the French courts are entitled to exercise jurisdiction in respect of actions for compensation. Considering arts 3.5 and 5.2 of the CLC Convention 1992, it follows that a claim for compensation for pollution damage may be made against the owner of the ship as well as against the other persons listed therein when the damage was recklessly committed and with awareness that such damage would probably result.

In the context of entering a criminal conviction against the company Total SA, it was found that if an inspection of the vessel, carried out within the framework of its mission to control compliance with safety and environmental protection requirements, referred to as 'vetting', had been carried out correctly under the conditions and within the time limits provided for by internal procedures, it would have highlighted: 1) the weaknesses of the Erika, and the fact that the vessel was unfit to navigate in the Atlantic during periods of storms; 2) the lack of renewal of the class certificate beyond a period of two months; and 3) the presence of anomalies allowing Total SA to suspect the existence of more serious disorders. Nevertheless, the Court of Appeal judgment stated that Total SA was entitled to the benefit of 'channeling' liability and dismissed the victims' claims for civil compensation, on the basis that Total SA did not have sufficient information to oppose the departure of the ship before it sank and that only negligence was committed in the 'vetting' procedures, without awareness of the probability of pollution damage.

In finding a lack of recklessness within the meaning of the CLC Convention 1992, the Court of Appeal ignored the provisions and principles referred to above. For these reasons, and without there being any need to examine the other proposed grounds of cassation, the abovementioned judgment of the Paris Court of Appeal, dated March 30, 2010, is struck down and annulled, but only in its provisions relating to the admissibility of the constitution as a civil party of the Robin des Bois Association and the exoneration of Total SA from civil damages. All other provisions are expressly maintained.