Convictions before the Erika
Convictions before 1999.
1994: The Traquair
The facts:
The Traquair (Gas tanker, Liberian flag) was found on 16 March 1994 in Ushant westward shipping lane trailing an oil slick 10 to 15 m wide spreading over 8 nautical miles in its wake.
The accepted motives and evidence:
The legal report mentions an iridescent slick with small broken up brownish stains. The discharge ceased when the plane arrived on site. Photographs were taken and accepted as evidence.
The court's decision:
On 27 January 1995, the English commanding officer was condemned by Brest's high court to pay a 30,000 FF fine (4,573 €). This fine was brought up to 250,000 FF (38,112 €) by Rennes' Court of Appeal on 18 March 1996.
1994: The Alpha America
The facts:
The Alpha America (Oil tanker, Bahamian flag) was caught on 15 July 1994 off the Morbihan coast discharging hydrocarbons over an area of 20 nautical miles and 100 metres in width.
The accepted motives and evidence:
Good weather conditions allowed photographs to be taken showing the discharge stopping and then being resumed. The commanding officer did not answer the radio contact.
The court decision:
On 10 November 1999, the Finnish commanding officer was condemned to pay a 250,000 FF fine (38,112 €) but on 12 May 2000 Paris' Court of Appeal quashed the decision because of a procedural default.
1995: The Salamina
The facts:
The Salamina (Tanker, Greek flag) was caught on 20 September 1995 off Ushant island trailing in its wake a 20 nautical mile long and 100 m wide oil slick.
The accepted motives and evidence:
The legal report indicates a continuous slick and a cease in discharge after the radio contact. 4 photographs were taken.
The court decision:
The Greek commanding officer was condemned to pay a 300,000 FF fine (45,735 €).
1995: The Cardiguan Bay
The facts:
The Cardiguan Bay (Container ship, British flag) was located on 11 September 1995 off Ushant island discharging hydrocarbons at the stern, trailing in its wake a 15 nautical mile long and 150 m wide oil slick.
The accepted motives and evidence:
The legal report indicates a cease in discharge after the radio contact. Photographs of sufficient quality to show the colour of the sea and the absence of other ships were taken.
The court decision:
The English commanding officer was condemned to pay a 200,000 FF fine (30,490 €).
1995: The Helipolis Wind
The facts:
The Helipolis Wind (Cargo boat, Egyptian flag) was caught on 13 December 1995 off the coast of Brittany discharging in its wake hydrocarbons which formed a 6 mile long and 30 to 50 m wide oil slick.
The accepted motives and evidence:
The legal report indicates a cease in discharge after the radio contact. An inspection in Rotterdam’s harbour revealed many deficiencies in the ship. Photographs show the origin and type of the product.
The court decision:
The Egyptian commanding officer was condemned on 9 December 1998 to pay a 500,000 FF fine.
1998: The Lista K
The facts:
The Lista K (Tanker, Cypriot flag) was identified on 6 February 1998 off Sein island trailing in its wake a 6 mile long and 20 to 30 m wide slick.
The accepted motives and evidence:
The legal report indicates a similarity between the radar positions and the ship's location. The discharge cease during the overflight. Photographs corroborate the observations noted by the Customs’ reconnaissance plane.
The court decision:
The Greek commanding officer was condemned by Paris' high court to pay a 150,000 FF fine (22,867 €) on 16 June 1999.
1998: The Birling
The facts:
The Birling (Bulk carrier, British flag) was located on 2nd March 1998 discharging hydrocarbons, trailing in its wake a 3 mile long and 100 m wide oil slick.
The accepted motives and evidence:
The legal report located a silvery slick and a cease in discharge after the radio contact. Colour photographs were taken.
The court decision:
The Irish commanding officer was acquitted on 20 October 1999 because the technical observations and photographs did not prove definitively that his ship was the cause of pollution.
1998: The Diane Green
The facts:
The Diane Green (Cargo boat, Panamanian flag) was located by the Customs’ plane on 6th February 1997 discharging hydrocarbons in French territorial waters in the Guernsey area.
The accepted motives and evidence:
The legal report indicates an 8 mile long and 200 m wide slick showing coloured trails in the ship’s wake. A Dutch inspection took place aboard and revealed that the oil and water separator was out of service. Photographs and thermographs were taken.
The court decision:
The decision was based on the visual observation corroborated by photographs and the thermography attached to the brief. The Russian commanding officer was condemned to pay a 300,000 FF fine (45,734 €) by Paris' high court on 16 February 1998.
Comments on incidents from 1994 to 1999
Since 1995 the French courts have based their judgements on the IMO MEPC.61(34) resolution adopted on 9 July 1993, which defines the limits of visibility of the hydrocarbons concerned by MARPOL annex 1. This resolution states that all visible discharge is higher than the norms. The French law on the repression of illicit discharge states that the facts must be reported by authorised agents who must submit a pollution report, attaching any documents which may act as evidence (art 218.6 of the Environmental Code).
The case law for this type of incident became based on the Traquair case, in which the judges accepted the testimony of the authorised agents, corroborated by photography. Since then, these two elements have appeared in every decision as evidence, without necessarily providing other evidence such as samples. This last point was confirmed by the Pavlov case, judged on 19 June 2002 by Paris' high court: “in criminal law, evidence is provided by all possible means. It is in no way foreseen in the texts of law, particularly in the MARPOL agreement, that assessments must determine the content of polluting slicks to give a base to the judges’ conviction.” Only one case mentions thermography as an piece of evidence, the Diane Green case, judged on 16 February 1998 “in the case in question, the proof of the offence results from the visual observations corroborated by photographic and thermographic evidence attached to the brief.”
The decisions also mention the conditions of observation and accept as further elements of assessment the absence of other vessels nearby and the attitude of the commanding officer during the radio contact.