A question of liability

QUITE apart from their involvement in payments to victims of the Prestige disaster, the Spanish authorities have an important and ongoing role to play in actively participating in the criminal proceedings initially brought against the master of the vessel. But the insistence by the Spanish authorities that the vessel be towed away from the coast may mean that their own liability could be in question.

Obviously, any decision was difficult to make at the time, when faced with a tanker with a huge crack in its hull, carrying 77,000 tons of fuel, which had already begun to spill, leaning by 30 degrees and adrift in the middle of a heavy storm. But the decision to direct the vessel away from the coast has been the subject of criticism by various experts who claim that the Prestige should have been brought into port or anchored to transfer its cargo where the sea was calmer.

In fact, claims and criminal actions have already been brought against the Spanish authorities before the Court of Corcubión, which is investigating the accident. Moreover, the conclusions drawn by the vessel’s classification society point to the fact that the Prestige would not have split in two if it had not been exposed to rough seas at the time it was being dragged away from the coast.

If the court considers that the Spanish authorities acted negligently by taking this decision, and therefore increased or made the risk of pollution and damage greater, then the authorities could be considered criminally liable, regardless of the fact that this decision was taken with the intention of minimising damage and that there were no ports or specific places of refuge available.

If, after examination of the technical information, the Spanish authorities are declared criminally liable, then the criminal court must also reach a decision on the liability of the state for compensation to the victims for damage caused due to the oil spill from the Prestige.

The court would also need to decide on another thorny issue, that of tort liability under the International Convention on Civil Liability for Oil Pollution Damage (CLC).

Questions about the liability of the Spanish authorities - which is the party bringing the criminal action against the captain of the Prestige - are not unusual in a legal ordinance such as Spain, in which Article 139.1 of Act 30/1992 generally states, pursuant to the Spanish constitution, that individuals are entitled to compensation from the relevant public authorities for any damage that could be caused to their goods and rights, except in the case of force majeure, providing that such damage is due to the operation of public services.