SHIP DEGASSING FROM THE MARSHALL ISLANDS (THE KALTENE) IN FRENCH TERRITORIAL WATERS, 140 KM TO THE WEST OF OUESSANT RAIL, CREATING A 4 KM LONG AND 100 M WIDE MARINE OIL POLLUTION

SUMMARY OF THE SITUATION

On May 6, 2011, the chemical tanker KALTENE, flying the Marshall Islands flag, was surprised by the customs plane with, in its wake, a trace of oil pollution 4 kilometres long and 100 metres wide. It was then 140 kilometres west of the Ouessant rail and was diverted to the port of Brest by order of the State Prosecutor. The Marshall Islands is the secondary flag of the United States.

THE DEFENDERS

Surfrider Foundation Europe has filed a civil suit to ensure that this degassing will not go unpunished. These actions are clearly in line with the status of the association, which aims to protect and enhance the oceans, waves and coastline.

LEGAL CONTEXT

The trial at first instance before the Brest Court has been postponed by several months because the defendants have requested referral on the basis of Article 228 of the United Nations Convention on the Law of the Sea (UNCLOS) Article 228 of UNCLOS states that within 6 months of the offence, the flag State may request to try the offence against the coastal State affected by the pollution. This technique, which is increasingly used by those responsible, allows them to escape French justice (one of the most repressive in terms of voluntary pollution). In most cases, offences tried in the flag State are punished by smaller fines and therefore have little deterrent effect. This prerogative conferred on the flag State falls if the damage caused to the coastal State is serious or if the flag State has repeatedly failed to comply with its enforcement obligations as a result of offences committed by its vessels.

The case was finally examined before the Brest Regional Court on 7 June 2012. Indeed, the French Ministry of Foreign Affairs refused to allow the prerogatives of Article 228 to be applied in the case of KALTENE. It considered that the Marshall Islands had not really prosecuted the master and owner of the KALTENE and had merely made recommendations with regard to the defendants. Surfrider has therefore filed a civil claim. At first instance, the Brest High Court went further than the Prosecutor's requisitions and ordered the captain and shipowner to pay a fine of €800,000.

The Captain and the shipowner appealed against the decision. The Rennes Court of Appeal examined the case on 9 October 2014 and confirmed the first instance judgment by imposing a fine of €800,000 on the defendants, 95% of which was to be paid by the shipowner. The Court of Appeal also ordered the publication of the judgment in several newspapers, including the Telegram and the Merchant Marine Journal. The publication has an educational and dissuasive value.

The captain and the shipowner have appealed to the Court of Cassation. We are waiting for the date of the review of the case.