Total was disputing a guilty verdict handed down in 2008, when it was ordered to pay 192 million euros (US$250 million) to civil plaintiffs who had suffered the fallout of the sinking of one of its tankers, Erika, in 1999. Erika broke apart in a storm off Brittany, spilling 20,000 tons of oil that polluted at least 250 miles of coastline and killed more than 50,000 birds.
Total argued during the appeal that Erika’s owner, an Italian company, and not Total, was to blame for having issued a certificate claiming the Erika was in “good health.” The Paris Court of Appeal however turned down the argument and confirmed the charge of negligence, explaining that Total did not properly inspect the Erika, which may have prevented the oil spill.
At the same time, French justice weighed the impact of Total’s negligence, and it did not deem such negligence to be sufficiently important to hold Total responsible at a civil level, such that while it was fined 192 million euros, that payment was not absolutely mandatory. It’s penal responsibility, however, was to the tune of several hundred thousand, which it had to pay.
For Court President Valantin, quoted by Le Figaro newspaper, Erika sank because of heavy corrosion. “Such corrosion is directly linked to insufficient maintenance of the ship,” a responsibility vested in Total. The subtlety, however is that, during the appeal, French justice considered Total to only be the “charter company” of the Erika, which under international regulations protects it from civil responsibility.
Corinne Lepage, president of the Cap21 ecological party and lawyer for several plaintiffs, was not satisfied with the court decision. Total “is responsible on the penal side, but on the civil side it will cost them nothing. That means, in terms of cost evaluation, that when an oil firm uses rubbish ships, a small penal risk will exist, but the cost will be nothing. That is quite worrying for the future.”
Yet, as Total had already engaged itself after its initial condemnation to pay the US$250 million to the victims, and already transferred nearly US$200 million to them, its payment of the remainder will continue.
Daniel Soulez-Larivière, defense lawyer for Total, confirmed this to the l‘Ouest France newspaper and explained that the court “recognized that a mistake has been made, but that it was not a ’fault' in the common meaning of the term.”
Total is therefore, strangely, considered guilty, but not responsible. Alain Bougrain-Dubourg, a French environmentalist, preferred to see the flip side of it: “That’s not an issue: the important thing is the ecological prejudice, the ability to recognize the harm made to living beings around us.”
Total had to face 80 civil plaintiffs, among them the French state, local cities, and NGOs. They are yet to announce if they will accept the result of the appeal—which finds Total responsible in some ways, but not others—or go to the High Court to push for a stronger outcome.
