Sample Law Case Study Paper on Environmental Law: The Erika Case

Environmental Law: The Erika Case

The international legal system that deals with the oil pollution damage caused by tankers through minor oil spills works quite effectively in terms of compensation. However, dealing with bigger cases, such as Erika, exposes serious gaps on the legal system in terms of the implementation and understanding of pollution damage. An effective regime that handles matters concerning the prevention of marine pollution should ensure that sanctions imposed on polluters should be effective and adequate to avoid such incidences in the future. Equally, the international agency that handles victims of oil pollution damage should guarantee sufficient and satisfactory compensation based on the agreement made by all contracting states. The Erika accident created large-scale pollution damage, as well as economic losses, which pushed for stringent regulations to deter oil tankers from harming marine environment.

 Ecological Consequences

The Erika accident occurred on December 12, 1999, when the tanker Erika, carrying 31,000 tons of fuel oil, submerged in Brittany, France, spilling approximately 19,800 tons.[1] Since the Erika sunk relatively further offshore, the oil spread further on the surface of the sea (about 400 kilometers) for a longer period before reaching the coastline. This was unlike other previous oil spills that have occurred in European waters. Oil spills from tanker Erika affected environment both directly and indirectly. The incident led to the death of thousands of seabirds as large section of the coastline was damaged.

The striking effect resulting from oil spills was generalized as it caused destruction to marine species, birds, as well as mammals. The European Convention of Human Rights reported that Erika created severe harm to the environment, which affected individuals’ capacity to enjoy life.[2] Oil affected coastal mammals through decreasing their feeding performance and ingestion of oil during feeding. Oil spill caused the death of immobile organisms due to toxic chemicals while reproductive capacities of marine animals were affected by the oil pollution. The complex feeding web was apparently affected, as toxic chemicals attacked marine organisms that provide food for the birds and fish.

Fishing and tourism activities were stopped, as the French government embarked on clean-up operations on the oil-covered beaches. The potential risk to human health for individuals involved in the clean-up activities has also been of particular concern. The government feared that the volunteers in the clean-up operations were likely to develop cancer due to exposure to toxic fuel oil.

Civil Liability

The Erika accident raised several issues concerning environmental law while the International Maritime Organization (IMO) intensified its tasks in facilitating compensation. French courts played a critical role in ensuring that owners of Erika are charged with the civil liability. The Civil Liability Convention (CLC), which was instituted in 1969, placed the responsibility for oil pollution on the ship owners. According to the Convention, the tank owners were expected to compensate the victims of pollution up to a certain amount, in addition to enhancing the recovery of pollution damage by individuals or corporate groups.[3] The review of the CLC in 1992 emphasized on the channeling of liability of pollution to the ship owners and excluded any claim against other individuals, unless such individuals committed the act deliberately.

To ensure that the pollution damage sufferers are sufficiently compensated, the 1992 Protocol allowed the oil industry to top up the amount of compensation released by the ship owner if it was deemed inadequate. French criminal courts allowed the owners of Erika to release compensation fund to cover economic losses, moral damage, as well as material damage, on top of environmental damage.[4] The Court of Appeal claimed that Erika caused an ecological damage, which should be compensated, as environmental damage results to loss of value.  Thus, all agencies that deal with protection of environment were allowed to seek reparation according to the law on environmental conservation.

The civil liability of oil pollution rested on the ship owner, but the owner had the chance to exonerate himself if the accident resulted from civil hostilities after an omission or deliberate action by a third party.[5] However, under strict liability, claimants are not required to prove how the incident happened. Additionally, some of the international regulations permitted unintentional discharge of oil into the sea, for instance, when the ship breaks in the sea.

Critics have faulted the channeling of liability as provided in the CLC, as such provisions excluded other key players, such as the charter and cargo owners, from the blame. Channeling renders some players blameless, despite being involved in ecological damage.[6] The inconsistency in the submission of the CLC in various countries tends to create unpredictability in the shipping industry unless the international regime opts to make changes on the existing regulations. The European Community opted to establish a European compensation fund to cater for pollution damage, as the CLC of 1992 had several limitations concerning compensation, particularly on the environment.

Criminal Liability

Polluters should be criminally charge if they undertake the act intentionally. The European Commission underlined the essence of criminal sanctions as a way to prevent pollution by shipping, particularly when civil liability tends to be ineffective in discouraging such incidence. The major legal issue concerning the criminal liability revolved around negligent behavior with regard to international law. In particular, MARPOL, an international convention that was established in 1973 to curb pollution from ships, has established specific requirements, as well as standards, of discharging waste in the sea while at the same time issuing sanctions to those who violate international regulations.

The French government brought criminal charges against several individuals, as well as companies involved in the Erika accident for polluting the waterways causing ecological damage to the marine environment. Some of the defendants that were found criminally liable include Giuseppe Savarese, Antonio Pollara, Total SA, and Registro Italiano Navale (RINA).[7] Giuseppe Savarese, the ship’s owner representative, was accused of failing to repair the ship, leading to its breakup and sinking while Pollara, who headed the ship management company, was accused of allowing the repair to be minimized and failing to inform the relevant authority concerning the leak.

RINA, an association of ship-owners and managers, was held accountable for renewing Erika’s certificate, despite having serious concerns with regard to the vessel’s structure. The ship owner, Total SA, was accountable for approving the chartering of Erika even though the ship was unfit to sail in the sea. The Appeal Court stated that Total SA was accountable for imprudence as it allowed a rusting tanker to create an ecological prejudice in international waters.

Regulations on Construction of Tankers after Erika Incident

Erika incidence demonstrated how the international legal regime exposed humans, as well as other non-human living organisms to oil pollution due to lack of sufficient preventive measures. Ineffective legal provisions also triggered the need for rigorous regulations. The Erika package offered a proposal for strengthening port state control, monitoring the classifications, in addition to facilitating the timetable for eliminating single hull tankers.[8] The package also highlighted on the age of vessels to ensure that only the appropriate vessels are allowed in seas.

The gradual elimination of single hull tankers was suggested a preventive measure to modernize the tanker fleet and to avoid environmental threats. The proposal called for faster substitution of single-hull tankers with efficient double-hull tankers that are less likely to spill oil through leakage. However, rapid phasing-out strategy is almost impossible due to the capacity of the shipyards.[9] Besides, phasing out single-hull tankers in a short period could create an economic loss as many countries rely on ships for the supply of fuel oil.

Conclusion

The use of both civil and criminal liability in curbing oil marine pollution has been effective in dealing with the outcomes of the Erika incident, as ship owners and managers are now cautious of allowing unworthy vessels in international waters. French criminal courts strived to handle the Erika case in the most aspiring manner to deter such incidences in the future. The incident led to loss of marine animals and other organisms while several economic activities were stopped to facilitate clean-up operations. The CLC had not attended the issue of compensation adequately, hence, the need for sufficient fund to compensate victims of oil pollution as well as the environment, pushed for stringent measures after Erika incident. The deterrence effects of liability have gained acceptance within the contracting states, as substandard vessels are being eliminated progressively from the international waters.

Bibliography

Kopela, Sophia. “Civil and criminal liability as mechanisms for the prevention of oil marine pollution: The Erika case.” Review of European Community & International Environmental Law 20, no. 3 (2011): 313-324.

Wang, Hui. Civil Liability for Marine Oil Pollution Damage: A Comparative and Economic Study of the International, US and the Chinese Compensation Regime. Alphen aan den Rijn: Kluwer Law International, 2011.

Wene, Justine. “European and International Regulatory Initiatives Due to the Erika and Prestige Incidents.” Austl. & NZ Mar. LJ 19 (2005): 56-73.


[1] Sophia Kopela, “Civil and criminal liability as mechanisms for the prevention of oil marine pollution: the Erika case.” Review of European Community & International Environmental Law 20, no. 3 (2011): 314.

[2] Ibid., 320.

[3] Hui Wang, Civil Liability for Marine Oil Pollution Damage: A Comparative and Economic Study of the International, US and the Chinese Compensation Regime. (Alphen aan den Rijn: Kluwer Law International, 2011), 125.

[4] Kopela, “Civil and criminal liability as mechanisms for the prevention of oil marine pollution: the Erika case,” 320.

[5] Justine Wene, “European and International Regulatory Initiatives Due to the Erika and Prestige Incidents.” Austl. & NZ Mar. LJ 19 (2005): 66.

[6] Kopela, “Civil and criminal liability as mechanisms for the prevention of oil marine pollution: The Erika case,” 319.

[7] Ibid., 314.

[8] Wang, Civil Liability for Marine Oil Pollution Damage: A Comparative and Economic Study of the International, US and the Chinese Compensation Regime, 48.

[9] Wene, “European and International Regulatory Initiatives Due to the Erika and Prestige Incidents,” 71.