In its decision handed down on January 16, 2008, the court found TOTAL S.A. guilty of the offence of pollution, adding that the company had been negligent in its procedures for verifying and selecting the vessel. Bertrand Thouilin, Legal Officer of Total Trading & Shipping at the time of the sinking, along with both Total Trading & Shipping and Total Transport Corporation, were acquitted.

Total is appealing a decision that it deems unfair and that runs counter to the intended aim of enhancing maritime transportation safety. But at the same time, Total has taken an irrevocable decision to compensate all civil parties who suffered loss due to the pollution, to the amounts fixed by the court.

The Erika sinking was a traumatic experience for everyone living on France’s Atlantic coastline and Total is fully aware of the losses sustained by the victims of the pollution. The Group immediately offered to pay the civil parties compensation fixed by the court, in full and final settlement of all claims. 37 of the plaintiffs accepted this offer, including the State and 22 local authorities, with Total disbursing €170 million. Acceptance of this compensation does not prevent civil parties from associating with the Public Prosecutor in the appeal.


As regards the safety of maritime transport, Total is unwilling to accept any responsibility for the disaster because:

• As the voyage charterer of the vessel, Total had no control or influence over the management or the operation of the Erika, which is a prerequisite for being held legally responsible.
• Selection of a vessel for charter a year before cannot be the cause of a sinking. Therefore Total cannot be considered as having caused the Erika to sink.
• Total also denies the charge of negligence when implementing its vetting (vessel verification and selection) procedure. Vetting was carried out in compliance with the Group’s standards and those applied by the other oil Majors. Total feels that it was misled by certificates that concealed the fact that the ship’s internal structure was deteriorated. International law assumes on a clear separation of the roles assumed by the different players in maritime transport. It is not the role or the business of the company chartering a vessel to act as a substitute for the ship-owner, the flag state or the classification society.
• Lastly, part of France’s Anti-Pollution Bill passed in 1983, on which the decision of the court is based, is not compatible with the international MARPOL convention. An international convention is deemed to take precedence over national legislation when the country in question has ratified that convention, and France has ratified MARPOL.

The court’s decision forces users to become inspectors, potentially weakening the responsibility of those who have the expertise, duty and actual power to inspect tankers, and especially their structures. This confusion of responsibilities could eventually make maritime transport less safe.