What caused the Erika to sink?

According to the panel of experts appointed by the Dunkirk Commercial Court and the report of the subsequent judicial inquiry, the cause was serious corrosion of the internal structures of the vessel. This conclusion was reiterated in the decision of Criminal Court in Paris. The corrosion had been concealed from the charterer, TOTAL S.A. The vessel had nonetheless been issued with a certificate by RINA, a leading classification society and member of the IACS*, attesting that its structures were in good condition. The Erika had recently undergone a major 5-yearly dry-dock overhaul, during which significant repairs were carried out. The gale force winds (Beaufort 8-9) that the Erika faced on December 11 and 12 were a contributing factor but were not sufficient on their own to cause the vessel to sink.

Is there any further recourse if this first appeal fails?

Total feels that the court’s decision is unfair and wishes to contest the grievances directed at it. An appeal is the normal recourse here, open to any person or entity to whom the law applies. The Public Prosecutor has also appealed in general terms, except for the charge of endangerment which was dismissed by the court. A number of civil parties have also appealed the decision. If the appellants are still not satisfied, it is possible to go to the final Court of Appeal, which is competent on questions of law but will not hear evidence on the facts themselves.

Why has Total compensated the victims if you are appealing against the decision?

There are two different issues here: compensation for harm or loss to victims; and the overall safety of maritime shipping. We do recognise the harm or loss suffered by the victims. The sinking of the Erika was a traumatic experience for everyone in France, including all Total employees. Out of a spirit of solidarity and the desire to help the victims turn the page, we have offered them immediate, full and final compensation, complying with the amounts laid down by the court. And starting in December 1999, we have also – spontaneously and before any legal proceedings – set up a special Atlantic Coast Task Force with a budget of €200 million to clean up the beaches, treat the waste matter and recover the oil remaining in the sunken vessel’s tanks. We did not feel it was necessary to be held responsible for the sinking in order to provide support for the victims. We do not wish to turn the legal page as well. We are sticking firmly to our position on the importance of maritime safety and the roles assumed by the different players. And we find it unacceptable that the court should designate Total as one of those responsible for the sinking. It is not Total’s job to inspect the structure of any vessel: that is the responsibility of the ship-owner and the classification society. We consider that we were in no way negligent in selecting a vessel that had all the required certificates.

Do you feel that the amounts of compensation fixed by the court are appropriate?

The court weighed the losses suffered by the authorities, local bodies, associations, companies and private individuals. Naturally, we also factored these in when expressing our solidarity.

Is it possible for any civil party that Total has already compensated to appeal against the court’s decision?

A civil party that has accepted the compensation offered by Total before the appeals process can associate with the Public Prosecutor’s appeal against the grounds of the decision but cannot start civil proceedings to alter the amount of compensation, because that civil party has already agreed to the amount determined by the court.

What do you think of the court’s decision to recognise the notion of "ecological loss"?

The Criminal Court in Paris agreed to award compensation for "environmental loss" to local bodies with a particular responsibility or mission to protect, manage or conserve a sensitive natural zone. The court found that this was applicable to the Morbihan (southern Brittany) General Council and extended its applicability to an association whose mission is to safeguard nature and the environment: the Bird Protection League (LPO). Total does not contest the notion of environmental loss but does feel that the way it is applied in practice, as set out in the decision, should be clarified further. It should be noted that this is not the first time a court has recognised the notion of environmental or ecological loss. A number of other courts have already done so in the past. Total did not wait for any court’s decision before moving to make up for any loss via the actions of the Atlantic Coast Task Force and the Group’s initiatives to have the IOPC raise its compensation ceilings.

Has Total tightened its rules governing ship charter since the court’s decision?

The Group has learned a number of lessons from the Erika sinking. If we want to prevent similar disasters from occurring, we have to understand the root causes and get together with all other players in the maritime transport sector to devise more effective safety measures. That is also the main thrust of the European Commission’s Erika I, II and III directives. We have also taken very concrete steps to tighten vessel selection: Total only charters double-hulled vessels, for oil tankers and chemicals carriers, we have set an age limit of 20 years, for ships carrying heavy fuel oil, the age limit is 15 years. Our vessel selection criteria are among the strictest in the industry and the average age of vessels currently under charter is 5 years, compared to 10 years for the industry as a whole.

Shouldn’t heavy fuel oil be considered as a waste product?

Heavy fuel oil is a commercial product produced by refineries. It is the third most commonly used petroleum product after gasoline and diesel fuel. The Criminal Court in Saint-Nazaire ruled on December 6, 2000 that fuel oil is not a waste product, and this judgment was upheld by the Appeals Court in Rennes on February 13, 2002. In 2008, the Court of Justice of the European Communities as well as the Final Appeals Court both agreed that N°2 fuel oil is a commercial product. However, when this oil is mixed with seawater and sand, it is no longer a commercial product but waste and needs to be treated. The waste from the Erika was treated at Total’s Donges refinery between 2000 and 2004.