Environmental crimes: Who pays the price?
Who is liable for the destruction caused by the oil spillage from the Prestige?
Tuesday 10 December 2002
Every wave that rolls on to Spain's Atlantic beaches seems to bring more of the black, tarry sludge. Nearly three weeks after the break-up of the Liberian-owned oil tanker Prestige, the blackened coastline of Finisterre is an environmental disaster zone.
It is estimated that 6,000 tons of fuel oil escaped from the ship, threatening the livelihoods of fishermen and killing thousands of marine birds at a stroke. Experts say that the catastrophe is likely to get worse before it gets better, with the possibility of more oil washing up on the Portuguese and French coasts.
Just one question is on the lips of the thousands of Spanish volunteers caught up in the almost impossible clean-up operation: "Who is to blame?"
The laws that govern the liability of the international shipping fleets are complex because they have to provide a mechanism for tracing a chain of ownership around the world. The Bills of Lading and Charter papers relating to the Prestige perfectly illustrate the difficulty in bringing a successful claim for compensation against those who could be held responsible.
The tanker is registered in the Bahamas and owned by a Liberian company which is managed in Athens. Its cargo of oil is being carried for a business with headquarters in Switzerland but which is owned by a Russian company.
"I can see a fantastic trail of blame stretching across the Atlantic," says Paul Stookes, an expert in environmental law and chief executive of the Environmental Law Foundation. The first target of any legal action, he suggests, will be the owners of the ship who may attempt to implicate Spain and Portugal for refusing to allow the crippled tanker to be brought into port. There could even be a negligence claim brought against the salvage team who were in the process of towing the Prestige into African waters when it finally broke in two.
The guiding principle covering major marine pollution accidents is that the "polluter pays" and is subject to United Nations Convention on the Law of the Sea 1982.
Since the Oil Pollution Liability Convention 1992, liability has been firmly established as being with the ship's owner. The ship's operator or cargo owner is entitled to limit financial liability according to the tonnage of the ship to a ceiling of around £51m. But recent disasters have shown that compensation is always too little, too late and can never make amends for the lasting damage to the environment.
The limited liabilities of the shipping funds, says Stookes, means that "the shipping owner and oil companies' slush fund will be laughing all the way to the bank."
The thankless task of bringing legal action lies with the Spanish government and the International Maritime Organisation, which will be primarily responsible for cleaning up the beaches and incurring the initial costs.
"It will be interesting to see whether the fishermen will be properly compensated for loss of livelihood, or whether the cumulative effects that may impact on the marine food chain will be evaluated," says Stookes. Environmental lawyers have been urging governments to make companies criminally responsible for their actions. But Stookes says that the burden of proof in establishing a criminal charge is often too onerous.
Recent efforts to ensure that criminal courts in this country are tough on environmental crime, including the gross negligence of oil-tanker owners, have been spearheaded by the Environment Minister Michael Meacher, the Magistrates' Association and wildlife-protection groups.
Magistrates are to be given new sentencing guidance to help them crack down on the 3,000 environmental crimes committed in Britain each year.
The clampdown follows concerns by ministers and environment protection groups that too many polluter companies are getting away with lenient sentences.
Speaking at the launch of the initiative last month, Meacher said: "The penalties for environmental offences need to fully reflect the damage caused by the crime, in all its aspects."
Harry Mawdsley, chairman of the Magistrates' Association, said the reality is that most wildlife and environmental cases are tried in front of magistrates who have no sentencing guidance and little if any training in dealing with these types of cases. It is hoped that the new guidance will result in penalties that fit the crime and sends a clear message to anyone who may be thinking of breaking the law, that you cannot expect to get off lightly in the future.
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