The European Social Partners in Maritime Transport – ETF and ECSA – are extremely concerned about the recent Court decision in the Prestige case as it unexpectedly overturned the judgment by the Provincial Court of La Coruña (Galicia) which had yet cleared both the Master, Captain Apostolos Mangouras and the Chief Engineer of criminal responsibility. Also, ICS strongly criticized the court judgement during a meeting of the International Oil Pollution Compensation Funds (IOPCF) last week.
Judges have now convicted Captain Mangouras of gross negligence for his decisions during the voyage and his actions as events unfolded. But this decision is nothing less than a further proof – one time too many – of the ill-treatment of seafarers that began as early at the time of accident and which, in the case of Captain Mangouras, has continued for an agonizing period of fourteen long and stressful years of judicial harassment.
The Provincial Court judgment found Captain Mangouras innocent for the simple reason that he bravely fulfilled his professional duty in attempting to save his ship. Confronted with a refusal by the Spanish authorities to give the damaged ship a place of refuge (where an oil spill could have been contained), not only the Master but also the Chief Engineer and the Chief Officer remained on board the vessel, whilst the hull was breached and the risk of capsize was dramatically increasing. Under pressure from the Spanish authorities, the Master had to take a series of actions against his will that resulted in the damaged tanker being forced to remain out at sea in dreadful conditions, where it eventually broke in two and sank off the coast of Galicia.
The Social Partners cannot accept that seafarers should have to pay such a heavy price whilst the Maritime Authority, who had been exempted from any liability, ordered the vessel away from any port of refuge, with well-known catastrophic effects upon the natural environment.
It is beyond dispute that seafarers are too often used as easy scapegoats upon whom to shift all the responsibility for possible environmental damages, and unfairly sued – sometimes in flagrant breach of their fundamental rights.
In addition, the Social Partners fear that such a ruling will impact negatively on the attractiveness of a seafaring career and hence on the future recruitment of young competent seafarers. At a time when ECSA and ETF – together with the European Commission – are looking to promote the European maritime profession and render it attractive to young Europeans, the Supreme Court’s judgement sends entirely the wrong signal.
Also, ICS strongly criticized the court judgement during a meeting of the International Oil Pollution Compensation Funds (IOPCF) last week.
In a formal statement to governments which oversee the global oil pollution compensation regime via the IOPCF, ICS stressed its immediate concern was the implications of the Supreme Court’s decision for the unwarranted criminalisation of seafarers. But ICS also noted that this decision may now be deployed to break the shipowner’s right to limit its financial liability under the CLC.
“The Supreme Court’s decision was extremely surprising in that it overturned a lower court’s acquittal of the Master, in his absence, and without hearing any new evidence as to his knowledge about the condition of the ship. This raises fundamental questions as to whether it was a fair trial.” said the ICS statement.
ICS also told the IOPCF meeting “This decision appears to be highly unusual and has been reached through a somewhat contorted application of law to facts which were found to be correct by the lower court. The decision also seems entirely unbalanced, applying different standards when assessing the blameworthiness of the Master to those applied to government officials on shore, whose decisions were exonerated by the Supreme Court.”
It is of great concern to ICS that this decision may be used to support a claim to break the shipowner’s right to limit liability and that the amounts then claimed would far outstrip those limits. These limits of liability are the essential quid pro quo for shipowners for agreeing a strict liability under the CLC regime. However, under the CLC the right to the limits may be broken if it can be shown that the shipowner acted “recklessly and with knowledge that the damage would probably result”.
ICS says that the actions by the Spanish government to pursue its claims against the shipowner, for what are expected to be enormous amounts in excess of the shipowner’s limits of liability, could seriously undermine the system of shared liability that has been agreed under the CLC/Fund liability and compensation regime. ICS therefore appealed to all Member States of the IOPC Funds to do their utmost to protect and support the system which has worked very well over the past decades, and which should not be sacrificed for the interests of individual countries.
“The whole regime is based on co-operation and trust between the shipping industry, the oil industry and governments” said ICS it its statement to the IOPCF. But ICS now fears that that the entire system of efficient compensation for oil spills could be put in serious jeopardy because of unsound decisions being made by national courts.
Please click below to read ECSA’s and ETF’s joint statement
The EU and IMO should step in or the marine industry should boycott Spain entirely as this is no way that a Western government should be treating a diligent Master and crew.
Through this Spain has shown the international community that it is nothing but a Third world country seeking to break the shipowner’s right to limit liability under the CLC. This is not about law this is corrupt practice and the EU must intervene.