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DEGASSING OF A TUNISIAN SHIP, THE CARTHAGE, IN THE MOUTHS OF BONIFACIO, BETWEEN FRANCE AND SARDINIA, CREATING A MARITIME POLLUTION BY HYDROCARBONS MEASURING RESPECTIVELY 6.4KM LONG BY 400 METRES WIDE AND 4KM LONG BY 100M WIDE.
SUMMARY OF THE SITUATION
On 15 October 2009, CARTHAGE flying the Tunisian flag was caught in the act of illegally discharging hydrocarbons in the Bouches de Bonifacio, between France and Sardinia. The ferry, carrying passengers, had in its wake, two slicks measuring 6.4km long by 400m wide and 4km long by 100m wide respectively. The release was spotted at night by a Spanish aircraft using remote sensing radars during an anti-pollution exercise in the Mediterranean. This is the first time that a lawsuit for nocturnal maritime pollution has been examined by the French courts.
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.
Surfrider Foundation Europe filed a complaint and filed a civil suit in the first instance trial held on 9 May 2012. The master was found guilty of the offence and sentenced to a fine of 150,000 euros, 125,000 of which were to be paid by the shipowner. The penalty for the shipowner is a fine of €500,000.
This decision is particularly satisfactory because the Tribunal de Grande Instance de Marseille acknowledged the existence of an illegal discharge, which took place at night, thanks to infrared remote sensing methods and without photographic evidence. This is an important step forward in the field of evidence.
However, at the trial at first instance, Surfrider was declared inadmissible because its statutory purpose refers to "the defence of the ocean, waves and coastline.... and not the defence of the ocean, sea, waves and coastline. Indeed, the Judge accepted the defence's argument that the Mediterranean Sea could not fall within the scope of our statutory purpose.
The defendants appealed the decision and Surfrider also appealed on civil interests. For Surfrider the objective was twofold. We wanted the judges to declare the association admissible because the argument adopted by the judge at first instance seemed ineffective, but above all we hoped that the Court of Appeal would confirm the decision of first instance in criminal matters in order to set a precedent and thus broaden the type of evidence used to convict captains and shipowners responsible for pollution.
The trial before the Court of Appeal took place on 9 November 2015. The Court of Appeal upheld the first instance judgment and sentenced the shipowner to a fine of €500,000. The captain's fine was reduced to 50,000 euros. Contrary to all expectations, the Court of Appeal followed the judgment of the first instance and declared the association inadmissible.
The defendants have appealed to the Supreme Court. On 19 April 2017, the Court of Cassation ruled on the appeals lodged by the captain and the Tunisian shipping company. Those responsible blamed the Court of Appeal's ruling for procedural shortcomings, lack of reasons and lack of legal basis. The highest court dismissed the appeal and declared that the judgment was in order in its form.