Prosecuting the offender
Inspection, detention and sentence.
Ship inspection and detention
According to the international conventions and European regulations, each member State is responsible, as the port State, for controlling the commercial ships calling at its ports and terminals. The Paris Memorandum of Understanding enables each country to activate controls in a member State of the Memorandum and to the receive inspection report. Ship inspection can result in technical observations which may reinforce the assumption of operational discharge. A response team (Port State Control Officer) can be airlifted onto the ship to inspect the vessel, speak to the captain and take samples.
The maritime and judicial authorities can decide to divert a presumed polluter not stopping at a port of call to a national port where it may be detained (L 218-30 du Code de l’environnement). Si ce déroutement ne dépend pas du tribunal du littoral spécialisé, il appartient au procureur du tribunal spécialisé soit de saisir le procureur du ressort dans lequel le navire fera escale, soit d’ouvrir une information judiciaire.
In France, several ships are diverted to the port of Brest every year and a few cases of ship diversion have also occurred in the Mediterranean over the past few years. When ship diversion results in detention, a sign that the charges held against it are considerable, the attorney general or the examining magistrate authorises the detention to be lifted when a bank guarantee is provided, of which he will determine the amount and conditions (articles 142, 142-2, 142-3 of the French Code of Criminal Procedure).
France is by no means the only country to divert ships for inspection. For instance, on 22 November 2000, the Bolero, a ship operated by a Bosnian company, was ordered to come alongside a Swedish harbour after an 11 km oil slick was located in its wake.
Sentence - penalty levels
The French specialised maritime courts, created by the law n°2001-380 of 3 May 2001 and the order n°2002-196 of 11 February 2002 relating to the competent jurisdictions in terms of pollution at sea by discharge from ships, have exclusive competence for judging all marine pollution offences by French or foreign vessels, whether they occur in territorial waters, the exclusive economic zone (EEZ) or in the newly created Mediterranean ecological protection zone (EPZ).
In France, the high court of Le Havre is competent for the Channel and North Sea, that of Brest for the Atlantic coastline and that of Marseille for the Mediterranean coastline. The high court of Paris is competent for offences committed in the open sea for French vessels only, and can intervene for the most complex cases (“Perben II” law).
In France, the offender is generally summoned by an infringement notice or by a judiciary police officer, in particular for foreign vessels. The French agents qualified to report infringements through infringement notices are listed in article L 218-26 of the Code of the Environment.
The criteria used to determine the penalty level are based on the extent of the pollution (slick size), the conditions of discharge, the location, intentionality, negligence/omission to take action. The control officers are summoned to the hearing to provide all useful explanation on the circumstances of the infringement reported, the evidence gathering methods and the assessment of the severity of the environmental damage. They must respond to the arguments of the ship’s defence.
Infringements can be defined by Europe and international bodies, however each State must decide on the applicable level of penalty. The current tendency is towards increasingly severe penalties; thus in France the law n°2001-380 of 3 May 2001 relating to the repression of pollution by discharge from ships multiplied by four the maximum fine for captains, increasing the maximum amount to 4 million Francs. In 2004, the law Perben II increased this level higher still to 1 million Euros.
The extension of penalties to the shipowner or manager who may be at the source of the discharge due to his attitude or may not have taken sufficient measures to prevent it L218-22 of the Code of the Environment) contributes to the French system. More commonly used is the provision of article 10 of the law 83-583 of 5 July 1983 which states that given the “working conditions of the interested party” the court could charge fines in whole or in part to the ship manager or owner (L218-24 of the Code of the Environment).