Erika

France, 12 December 1999

Report updated 1 September 2010

What has happened?

On 12 December 1999 the Erika broke in two off the coast of Brittany, France, whilst carrying approximately 30 000 tonnes of heavy fuel oil. Some 19 800 tonnes were spilled. The sunken bow section contained 6 400 tonnes of cargo and the stern a further 4 700 tonnes.

Operations to pump the remaining oil to the surface were carried out during the period June - September 2000.

Clean-up operations took place along some 400 kilometres of polluted coastline and over 250 000 tonnes of oily waste was collected from the shoreline.

The compensation system: who is paying?

Compensation is available to any individual, business, private organisation or public body who has suffered pollution damage as a result of the Erika incident. Compensation is payable under the 1992 Civil Liability and Fund Conventions as enacted into French law.

Approximately €12.8 million (£10.6 million) compensation is available from the shipowner's liability insurer, the Steamship Mutual P&I Club. Additional compensation of approximately €172 million (£143 million) is available from the International Oil Pollution Compensation Fund 1992 (1992 Fund). In other words, a total of €185 million (£153.8 million) is available.

Compensation is payable for expenses actually incurred and for loss or damage actually suffered as a result of the oil pollution. All claims must be properly supported by documentation.

Erika Claims Handling Office

The Steamship Mutual and the 1992 Fund established a Claims Handling Office in Lorient to serve as a focal point for the claimants and the technical experts engaged to examine the claims for compensation.

Some 50 experts have been involved in the examination of the claims relating to clean-up, fishing, mariculture and tourism.

The Claims Handling Office was closed on 31 July 2004, although the office manager continues to deal with outstanding issues from his office in Lorient.

The contact details are:

As at 12 September 2009, 7 131 claims for compensation had been submitted for a total of €388.9 million. Payments of compensation had been made in respect of 5 939 claims for a total of €129.7 million, out of which Steamship Mutual, the shipowner's insurer, had paid €12.8 million and the 1992 Fund €116.9 million. Some 1 016 claims, totalling €31.8 million, had been rejected.

Payments of compensation had been made in respect of 5 934 claims for a total of €129.7 million (£102.79 million), out of which Steamship Mutual had paid €12.8 million (£10.2 million) and the 1992 Fund €116.9 million (£92.5 million).

Legal proceedings

Legal actions against the shipowner, Steamship Mutual and the 1992 Fund were taken by 796 claimants. By 12 September 2009 out-of-court settlements had been reached with a great number of these claimants and the courts had rendered judgements in respect of most of the other claims. Nineteen actions are still pending. The total amount claimed in the pending actions, excluding the claims by Total, is some €21 million.

Criminal proceedings

The representative of Tevere Shipping, the president of Panship Management and Services, RINA and Total parties were held criminally liable in a judgement delivered by the Criminal Court of Paris in January 2008. A number of civil parties have appealed against this judgement. A hearing is scheduled to take place for five weeks as from 5 October 2009.

No further developments have taken place since the 1992 Fund Executive Committee session in March 2009.

Court judgements in respect of claims against the 1992 Fund

The French Courts have issued some 150 judgements in respect for claims for compensation brought against the 1992 Fund.

The majority of the judgements rendered by the French Courts related to issues of admissibility. The judgements were in general very favourable for the Fund, since the Courts in most cases where the Fund had rejected claims as not admissible concurred with the Fund's position. In some cases the Courts applied the Fund's admissibility criteria, in other cases the Courts did not apply them but took them into account, and in some cases the Courts stated that the Fund's criteria were not binding and that the admissibility should be decided by the application of French law but reached the same results as the Fund on its rejection of the claims by applying the requirement that there must be a link of causation between the event and the damage. The Court of Appeal in Rennes in two judgements stated that the 1992 Fund's criteria for admissibility were not binding on the national courts, but could serve as a reference ("une référence d'ordre indicatif") for the national judge. A few judgements related to issues of quantum. Where the Courts did not agree with the Fund's assessments, the Fund did not appeal unless the amounts awarded by the Court were significantly different or appeared arbitrary.

Detailed information on the judgements can be found in the documents presented to the Executive Committee at the following sessions:

Legal proceedings by the Commune de Mesquer against Total

A legal action was brought by the Commune de Mesquer against Total before the French Courts, where it argued that the cargo on board the Erika was in fact a waste under European law. The Court of Cassation transferred the case to the Court of Appeal in Bordeaux for a decision on whether or not Total contributed to the occurrence of the pollution caused by the Erika incident.

For details about considerations by the 1992 Fund Executive Committee in 2007 and 2008 and the decision rendered by the Court of Cassation in December 2008, reference is made to Annual Report 2008, pages 88 to 90.

There has been no development on the legal proceedings since the 1992 Fund Executive Committee session in March 2009.

Recourse actions

The 1992 Fund has taken legal action, for the purposes of protecting the right of recovering the amounts paid by it in compensation, against the parties who may be found liable as a result of the incident, namely against the owner and the manager of the Erika, their liability insurer, the charterers and the classification societies which had inspected the Erika. The Fund will pursue or withdraw the actions against the various parties (or against some of them) in the light of the outcome of the criminal proceedings brought before the French Courts.