The lengthy judicial proceedings in the French courts subsequent to the sinking and oil spill from tanker Erika off the coast of Brittany in December 1999 generated many questions regarding the interaction between the international oil pollution liability conventions as incorporated into French law and other French legislation which claimants argued should apply. Legislation has been passed by France since the Erika judgements in an attempt to codify the Erika jurisprudence. UK P&I has issued a legal update on French environmental law as it now stands.
France has recently adopted a new law on compensation for environmental damage, which aims to introduce liability and compensation for “pure environmental damage”, or “ecological damage” into the French Civil Code. This law imposes liability on persons whose actions result in damage to the environment to repair the damage, or, if the harm is irreparable, to pay financial compensation to the State or a designated environmental protection organization. UK P&I legal team notes that this law may erode the Convention regime create extra burdens on the shipping industry.
Pure environmental damage
Prior to the Erika case there was no right to claim for pure environmental loss under French law. In 2012 the French Supreme Court established a principle of environmental responsibility. The principle of polluter pays was included in the Environmental Code of August 2008. However, this regime envisaged only damages caused to the environment by the activity of an operator as defined under the Environmental Code; it expressly excluded other persons who could be liable. This law also concerned only damages caused before 30 April 2007 or where the activity that gave rise to the losses had ceased since 2007.
In early 2016 a draft bill regarding environmental damage being described in a very wide sense was proposed by the French Ministry of Justice and the French Ministry of Environment. This became law in August last year.
The environment as an entity in itself may now be considered a claimant by the French legal system – it is not necessary that any individual suffers damage resulting from the harm.
The court in the Erika case decided that impairment of ecosystems must be “not insignificant”, and must be a serious harm to the natural environment. The new law stipulates that expenses incurred to prevent the imminent occurrence of any damage, to prevent its aggravation or to reduce its consequences can be compensated.
A claim for compensation for environmental damage can be brought by any person with capacity and interest to sue. The law limits the right to claim to those associations which have been established for at least five years at the time the claim is made. The new law does not apply to damages arising from events which occurred before October 1st 2016, unless the claim was submitted before this date.
Compensation consists of repairing/restoring the affected natural environment “in kind” or to its natural state. If restoration is impossible or insufficient, the judge can
order the responsible person to pay damages to the claimant for him to take useful measures to restore the damaged environment, or failing this, to the State.
An action for compensation for environmental damage can be brought within 10 years from the date the claimant first becomes aware or should have known of the environmental damage.
Liability is strictly based, irrespective of any fault. The law does not provide for a limitation on liability. This is contrary to the international conventions adopted by France.
Implications of the new law
UK P&I said that the new legislation was of great concern to the international shipping industry “as the new law may undermine the benefits of the international conventions to which France is a party”.
There is no exclusion in the new law for the maritime industry. As there is no limit on liability in the new law, it is not clear if ship owners will be allowed to limit liability in accordance with the International convention on Limitation of Liability for Maritime Claims (LLMC), to which France is a party, in the event of a maritime accident resulting in environmental damage in France.
France is also party to the CLC and the Bunkers Conventions which state that “no claim for compensation for pollution damage shall be made against the ship owner otherwise than in accordance with this Convention.” The key question is whether the damage envisaged by the new law is a “pollution damage” within the meaning of the Conventions.
UK P&I said that, from ship owners’ point of view as well as from that of claimants, the Conventions have proven to be a successful regime which provide effective and speedy compensation for pollution damage. France, a strong supporter of the Conventions, has adopted a domestic law which is to be tested with regards to its scope of application. It remains to be seen how the new law will apply to maritime incidents which should be governed by international conventions.