Extract from the ‘Editor’s Note’
In October 2013, at the fourth edition of ‘Shipping and the Law’, the annual Naples gathering of the international shipping community organized by Studio Legale Lauro, Måns Jacobson took over the torch as the conference legal key note speaker from Francesco Berlingieri, who had performed the role with such distinction at the first three Shipping and the Law conferences from 2010 to 2012.
Just a month ago I suggested to Måns that Studio Legale Lauro could publish a short book containing the five key note speeches he gave from 2013 to 2017 and I take this opportunity to thank him for having accepted that suggestion and for carrying out in such a short time the editing necessary to make the texts suitable for publication, based on his speaking notes and audio-video recordings of the original speeches.
As the title suggests, ‘Five Speeches on Civil Liability for Marine Pollution’ is not just an anthology assembling individual speeches. In fact, a common topic features in four of the speeches, i.e. compensation for damage arising from oil spills, whilst the same dilemma recurs in all five speeches: the problematic relationship between international uniform regimes based on international conventions – such as the 1992 Civil Liability and Fund Conventions or the United Nations Convention on the Law of the Sea (Unclos) – and the domestic laws of states parties in the often uneven interpretation by national courts. This dilemma is well expressed by the leading question which constitutes the title of the third speech: To what extent do international treaties result in the uniformity of maritime law?
As emerges not only from his third speech published here, but also from the other four, Måns is a strong supporter of international uniformity of maritime law. Despite his zeal for this, however, he never loses sight of the general context in which the forces governing the physics of international and national legislations are deployed and how court decisions arise. This balanced and pragmatic attitude reflects the multiple roles he covered in his brilliant career, as Swedish judge and senior Ministry of Justice official as well as over twenty years as Iocp Funds Director, and as an academic.
Thanks to such experience Måns displays a fair degree of leniency with the consciousness of the problems which national courts may have in the interpretation and application of maritime law treaties: Judges are also human beings – he says – and they are as a result of their training strongly influenced by the legal traditions and the legal interpretation technique prevailing in their respective country. Such consciousness also extends to some factual often recurring elements: The courts may sometimes be influenced by political considerations, and the public anger that often arises after a major shipping incident may influence the court. At the same time his longstanding experience and the deep understanding of the function of law causes him to note that law is not – and should not be – static, but must develop to take into account changes in society, and in economic, social and political priorities, so as to ensure that the law meets the requirements of society in a rapidly changing world. It is therefore necessary from time to time to amend treaties or adopt new ones, even though these changes may result in less, rather than more, uniformity of maritime law since that might lead to having in force two or more treaties dealing with the same subject matter.
Måns does not refrain from expressing his views on the steps which could be taken to obtain more uniformity in maritime law which, in any event, is characterized by a higher degree of uniformity than most other fields of law. As regards States Members of the European Union he points out that treaties to which the EU is a party take precedence over other EU legislation as well as over domestic legislation in these States and in this way assigns to the European Court of Justice the competence of treaty interpretation, which could promote uniformity as between these States, as well as putting ourselves in a wider ‘de iure condendo’ realm. Probably the best solution, from a ‘de iure condendo’ perspective, might in his view lay in conferring jurisdiction for disputes on the interpretation of the maritime law treaties on an international court or tribunal, as in the case of the competence given by Unclos in certain matters to the United Nations Tribunal on the Law of the Sea. However, Måns’ awareness of the political international context unfortunately does not leave great room to hope that any major improvement will be achieved in the foreseeable future since we are not, as in most areas of human life, living in the perfect world.
Four of the five speeches appear to focus on tanker oil spills compensation by commenting on national court decisions, which sometimes vary among different jurisdictions. They involve notorious cases such as the Erika in France, which is dealt with in the first speech, and the Prestige which relates mainly to Spain, but also to the United Kingdom, United States, Portugal, France and the European Court of Human Rights jurisdictions, which is dealt with in the second and fourth speeches. In the background glimpses the far cry of some other incidents such as the Patmos, Agip Abruzzo and Haven in Italy, the Aegean Sea in Spain and the Braer in the United Kingdom, as well as the Hebei Spirit in the Republic of Korea.
One of the main problems dealt with in the Erika by the French courts, as reported in Måns’ first speech, is the application of the so called ‘channelling of liability’ which under the 1992 Civil Liability Convention places the liability on the registered owner of the vessel and prohibits in principle compensation claims against several groups of persons listed in the relevant provision under letters a) to f). The approach of the French Court of Cassation, which considered the vessel’s classification society to be included under letter b), embraces an interpretation of that channelling provision which, according to Måns, may be wider than that intended by the Diplomatic Conference which gave birth to the 1992 Civil Liability Convention even though, as a matter of fact, the Court of Cassation removed any protection given by the Convention, finding that the classification society as well as the representative of the shipowner, the president of the management company and the charterer had been guilty of recklessness as defined in the Convention. These findings, even though based on specific facts, in Måns’ view may constitute precedents weakening a protection which had been considered, perhaps with an excessive optimism, as more or less ‘unbreakable’.
Another result of the Erika French Court of Appeal and the subsequent Court of Cassation judgements was to introduce the right of compensation for pure environmental damage in favour of local and regional authorities and associations for environmental protection. Even though the judgements did not violate the Civil Liability Convention since they were against defendants to which that convention did not apply, Måns considers the decision unfortunate from the perspective of international uniformity, since it introduced a concept, which was later codified by the French legislator in 2016, different from that of the regime of compensation under the international conventions.
The second and the fourth speeches, which deal with the worldwide development of the Prestige case, see our author navigating as a contemporary Odysseus through procellous seas and often conflicting winds blown by major and minor gods, such as the decisions by Spanish criminal courts at different levels and the Constitutional Court, the American Civil Court of first instance and Court of Appeals, the French first instance court and Court of Appeal, the Portuguese Maritime Court in Lisbon, by an arbitration tribunal in London (on the interpretation of the London P&I Club’s Rules ‘pay to be paid’ provision) and subsequently by the High Court of Justice, and by the European Court of Human Rights as regards the criminal proceedings against the Master in Spain. In such a crowded judicial Olympus the role of Zeus is performed by the Spanish Supreme Court, which Måns however does not refrain from criticising, as the moderns often do with the jealous mythologic gods. From Måns’ international uniformity of maritime law perspective, the Court in fact did not respect the 1992 Civil Liability Convention as regards the insurer’s right to limit and the exclusion of moral damage from compensation, whilst the prison sentence on the Master did not, in his view, respect the United Nations Convention on the Law of the Sea.
In the fifth speech, the last of this book, the author addresses a problem which regards not only claims for compensation arising from oil spills falling under the 1992 Civil Liability and Fund Conventions but, in a wider scenario, is generally debated for tortious claims of many types in any jurisdiction; are pure economic loss compensation claims admissible? Obviously, Måns answer as to the interpretation of the Civil Liability and Fund Conventions reflects the necessarily cautious uniform approach of the Assemblies of the Funds, but also reports in real time his successor’s, as Director, proposals which were submitted in October 2017, simultaneously with the eighth edition of Shipping and the Law, to open the door for qualified claims by employees who lost their jobs due to the economic impact of the pollution. Måns’ approach is to be open to change. In his view the Funds’ criteria for admissibility of compensation claims should be reviewed from time to time, in the light of experience gained from dealing with various tanker oil spills since, as he says, law is not static, not cast in stone and that applies to international treaties as well as to national legislation.
Francesco S. Lauro
Please click HERE to download the pdf version of “Five Speeches on Civil Liability for Marine Pollution”.