Felipe Arizon, Spain felipearizon@arizon.es
Introduction
The “Prestige” was an Aframax class oil tanker registered in the Bahamas with a Liberian corporation as owner and operated by a Greek company. On November 13th, 2002, while it was carrying 77,000 mt of heavy fuel oil somewhere near the northern coast of Spain, one of its tanks suffered structural damages during a storm, endangering the vessel of sinking. In response, the ship had requested permission to enter a safe port and was subsequently denied by all three Spanish, French and Portuguese governments and was ordered by the Spanish authorities to sail northwest, away from the Spanish coast.
The vessel’s condition was rapidly deteriorating on the storm, and before it could move far away from the coast, a large section of the starboard hull was teared apart, leaking massive amounts of fuel oil into the sea. Later, on November 19, the ship’s hull was split in half, causing it to sink and release over 70,000,000 liters of fuel oil, becoming the worst environmental disaster in the history of Spain and Portugal. As a result, the Greek captain Apostolos Mangouras was arrested, being charged for disobeying Spanish authorities and harming the environment.
The first decision from the provincial Court of La Coruña
The first decision had reached the conclusion that the ship’s casualty occurred due to a structural deficiency on the vessel’s hull, which caused it not to resist the damages caused by the later storm. According to the findings in the court’s decision, the hull had already compromised before the vessel left its last port called in St. Petersburg – Russia and any problem had not been detected on previous inspections.
The vessel even had updated certificates, attesting it was seaworthy at the moment of its last voyage, from the classification society “ABS”.
As a result, only the ship’s master, Captain Mangouras, was convicted for disobedience, by non-compliance with the Spanish authority’s order to sail away from the coast, but was found to have no liability for the vessels hull deficiency and his disobedience had no significant impact on the subsequent sinking/oil pollution damage.
The rest of the crew and the Spanish General Director of the Merchant Marine Administration were also acquitted of any charges. As a result, the criminal court had also not determined how and on what terms compensation would be paid to damage parties for the substantive losses caused by oil pollution, leaving that issue for the civil courts to decide.
Procedure against Classification Society in USA jurisdiction
The Kingdom of Spain also brought a direct action against the Classification Society “ABS” claiming damages in tort from the oil spill, by reason of the inspections and safety certificates issued by the defendant attesting the seaworthiness and safety compliance of the lost vessel.
The proceedings were brought before a New York district court by reason of the defendant’s main office location and were ruled by US Law. This decision had been watched closely since it could provide important guidance on the liability of classification societies on maritime losses.
The issue, however, was not part of the judgment since the claimants had failed to prove a sufficient relation between the Spanish Administration and ABS, so that the claim was summarily dismissed. The judge had also ruled that since the United States was not a signatory state of the International convention (CLC) on oil pollution damage it lacked jurisdiction to handle the case.
The Supreme Court judgment
The Spanish Supreme court had a distinct view from first instance judge, where it decided to revoke the former decision on many issues, specifically regarding the master’s criminal liability.
The supreme courts justices have found that, although the deficiencies of the vessel’s hull that caused the loss, were difficult to detect and all the certificates were valid, the Captain was aware that the vessel had a number of other previous deficiencies, and had agreed to load an additional cargo nonetheless, increasing the vessel’s exposure to structural damages and diminishing its capacities of speeding and maneuverability, crucial to the survival on a storm, as was the case. Thus, his conduct did had an impact on the ship’s casualty and he would be held criminally liable for the environmental damages
The master was then sentenced to two years of imprisonment, although Spanish law will permit him to remain at liberty due to his elderly condition, plus fines and a professional suspension. He will also be personally liable to pay indemnity for the damages caused on civil procedures, to be determined during enforcement procedures.
The sentence has also declared the direct civil liability of the registered owner and its subsidiary company; the International Oil Pollution Compensation Fund (IOPCF) up to the limits of the CLC/92 convention; as well as the vessel’s P&I insurance club up to the limits of insurance coverage.
It is important to highlight that all claimants have a right to demand directly from the insurer, as permitted already in Spanish Law on general insurance legislation. Now, legislation specifically includes direct right of action against P&I insurers on the new Spanish Maritime Navigation Act 2014.
The reasoning of the decision is based on evidence that, despite complying with all regulations concerning inspections and valid certificates of safety standards, the owner and the captain of the vessel knew, or ought to have known, that she wasn’t fit for this last voyage. The vessel was significantly old, even being alleged by the prosecution that it was her last voyage before it would be scrapped, and to use it on this particular voyage amounted to a reckless willful exposure to risk. On this scenario, the conduct of the captain, by accepting an old vessel and loading additional cargo, was crucial for determining that his criminal liability towards the environmental damages in the view of the Supreme Court.
The circumstances were similar to previous environmental disasters, where maritime transportation of dangerous and hazardous cargo was involved, such as the infamous Exxon Valdez oil spill in 1989. The parties held responsible were aware of the devastating potential of oil pollution and decided nonetheless to take the risk. Also, reports that the vessel has been previously refused by other charterers/oil companies supported the evidence that using the vessel was an equivocal managerial decision on part of the ship operators.
Conclusion
In our view, this decision gives important reference to the use of classification societies certificates as a defense for damages caused by a ship’s deficiencies. Owners and operators (including crew and other staff) tend to over-rely on their valid certificates, ignoring plainly obvious risks caused by the vessels condition, which will not serve them if a disaster makes it to court.
Sea captains need also to have consideration of their personal liability, both criminal and civil, for environmental damages they may cause. They should now be prepared to refuse any vessel or type/quantity of cargo if, in their knowledge, it offers an obvious risk to maritime safety. Although a part of the maritime law community has criticized this part of the decision as being “overly harsh”, this judgment constitutes the main authority on the Spanish jurisdiction up to date and will serve as reference for future maritime pollution cases.