Sunday, October 17, 2010

The Shipping Industry Deplores European Court Judgement

Human Rights Authority Berated for 'Deeply Flawed' Ruling
Shipping News Feature

EUROPE – The tragic case of the oil tanker Prestige, which broke in half and sank in Spanish waters in 2002 has always been a contentious issue but forgotten by many if not by those directly involved. Now the European Court of Human Rights has made a judgement which has been heavily criticised by everybody we have spoken to who has knowledge of the case.

The ships Captain felt he had been dealt with harshly by the Spanish authorities who were prosecuting him after the vessel foundered off the coast of Galicia. Captain Mangouras, who was 67 at the time of the shipwreck, was arrested and incarcerated with bail set at €3 million. He remained in prison for 83 days and would possibly still be there had not the P & I Club not underwritten the required amount.

Captain Mangouras’s complaint finally reached Strasbourg and this week he was fully expected to have his case upheld by the Grand Chamber. The Spanish authorities were held directly to blame by many for the disaster after they insisted that the stricken ship be towed out to sea despite the Captain’s appeals that she was becoming dangerous and should be taken into port for her cargo of 77,000 tonnes of fuel oil to be pumped out or repairs affected. Twelve of the ships tanks had burst when the Captain made the appeal but a series of refusals to accept the vessel from Spanish, French and Portuguese authorities meant six days after the initial incident the Prestige broke up and spewed her cargo into the sea.

Even after the disaster, still the largest environmental catastrophe in Spanish history, the Government refused to help and volunteers were left to clear up the mess. The case caused the changes in the rules for tanker construction to be hurried forward so that all such vessels are constructed with double skinned hulls and meant the Spanish Government were shamed in the press and by environmental groups.

In last weeks European Court of Human Rights case the Court decided that the imposition of such an immense amount of bail, the imprisonment of the ships captain and his enforced detention for two years in Spain was justified, despite the fact that he is an EU citizen (Greek) and without consideration of his age or status. The Court held that there was a legitimate concern that in such high profile environmental cases a high bail figure was the only way the authorities could reasonably ensure the accused would appear before the Courts. They further stated that the massive environmental damage which ensued was sufficient justification for the likely level of liability attributed to the polluter.

The Court found by 10 votes to 7 and those against argued strongly that Article 5 of the Act had clearly been breached and Captain Mangouras had offered €60,000 of his own money, thus rendering it highly unlikely that he would fail to appear. Cynics have said that fingers were crossed in certain quarters that the 75 year old Captain would not live to see the case resolved.

The International Transport Workers Federation (ITF) in conjunction with their European body the ETF have been amongst the most vociferous critics stating that the Court is now saying that it is compatible with the European Convention on Human Rights (ECHR) for a national court, when dealing with pollution cases, to assume the accused will not attend Court unless their employers (or the insurers) put up a huge sum as bail, implying without this the employers might even actively encourage non attendance. The national Court are then assuming that as there is no legal obligation to offer bail they will force them to do so by way of moral obligation.

The ITF and ETF say this is nothing less than a game of bluff sanctioned by the Court. If the ship’s owners walk away should the seafarer then look forward to an indefinite prison sentence whilst on remand? All this for a case highly unlikely to produce a custodial sentence for the ships master; they further believe that seafarers in these cases have become hostages and Captain Mangouras must now seek justice from the UN Human Rights Committee. They conclude that the judgement is deeply flawed and does not reflect well on the reputation of the European Court of Human Rights.

With environmental issues firmly at the top of the global agenda, and cases being prosecuted around the world as criminal offences as opposed to civil matters this case will continue to attract attention from all sides.