Acts of sovereignty

Jean-Léopold Renard of Marseille-based law firm SCP Renard & Associes looks at the legal issues raised by France’s indictment of the Malta Maritime Authority in connection with the Erika disaster.

IN the French criminal procedure following the shipwreck of the Erika and the ensuing oil pollution of the French coast, the French Examining Magistrate (Mme de Talancé) indicted the Malta Maritime Authority (MMA) on the following counts:

• between 1996 and 1999 and through actions committed on the French territory not eligible to the statute of limitation, reckless endangerment causing exposure of third parties to risks of death or injury, carelessness or breach of law and regulations (SOLAS Convention, Load Lines 66, STCW 95…, , ) in issuing the State’s Flag certificate to the Erika tanker owned by the Maltese company TEVERE SHIPPING and to PANSHIP, the ship’s managing company and failing to ascertain whether the ship was in a seaworthy condition or her management by PANSHIP was in compliance with international regulations.
  Such facts passing the test of reckless endangerment of another person contemplated and punished by the articles 121-2, 121-3, 223-1, 223-2 of the French Criminal Code
• carelessness or breach of law and regulations (in particular MARPOL Convention) ,in inspecting the ship’s condition and management by PANSHIP, having contributed to cause the pollution of the economic zone and French territorial waters on December 11 and 12, 1999, through the shipwreck of the ERIKA crude carrier. Such behaviour passing the tests of participation to pollution others contemplated and punished by the articles 121-6, 121-7 of the French Criminal Code and L 218-22 of the Environmental French Code.

In a binding judicial decision dated November 23, 2004, the French Criminal Supreme Court dismissed the appeal lodged by the Judiciary Agent of the French Treasury against a sentence served by the Investigating Chamber of the Court of Appeal of Paris, dated June 14, 2004, which voided the indictments of the MMA (which represents the Maltese Republic for the ship registration issue) and its director, responsible for ship registrations.

“ The International Custom that prohibits criminal prosecution of a Foreign State, is extended to the public bodies and agencies that are acting on behalf of the State, and also to their civil servants for acts coming under the relevant State’s sovereignty as in the case at issue”

Indeed, the French Supreme Court has always enforced the customary principle of state immunity of jurisdiction, enshrined in international public law and based on the concept of a necessary ‘peaceful co-existence’ between the states of the international community.
The immunity has been gradually granted to the administrative authorities of the foreign states regarding their sovereignty acts.

In order to rule that the MMA is an agency of the Maltese Republic, the Court of Appeal held:

“The Malta Maritime Authority has been created in 1991 by a Maltese Republic’s Act (…) it is manned by seven to eleven members, including a president and a vice-president nominated by the competent minister empowered to dismiss them at any time (…) every year the members’ list is published in the Malta Gazette”

Using the French law’s distinction between management acts and public authority acts or of acts of supreme dominion (acts of jure imperii’), the Supreme Court allowed the benefit of state immunity only to acts included in the latter category.

In the case of the Erika, Renard Law Firm filed an application to the Court of Appeal of Paris, claiming the nullity of the magistrate’s bill of indictment for violation of the state immunity of Malta/MMA and, on the other hand, describing the ship registration process (including delivery of the state flag, certificates of registration and seaworthiness certificates) as acts of sovereignty.

Both the French Supreme Court and the Investigating Division of the Court of Appeal of Paris had to test the counts of indictment, i.e., the ship registration, the issuing and the upholding of the flag state’s certificates, in order to ascertain whether they came under the above-mentioned category of jure imperii’ and whether they were entitled to the state immunity vested in the Maltese Republic.

Under French law, and according to the French customs code, the ship’s certificates are delivered "In the name of the French people", and "the right to fly the French flag is vested by an act of sovereignty". On this legal basis, and according to Article 90 of the Montego Bay International Convention, "Every state, whether coastal or land-locked has the right to sail ships flying its flag on the high seas", the Investigating Division of the Court of Appeal returned a ruling voiding the indictment of the MMA and its director.

Only one of the civil plaintiffs (the French Treasury) appealed, blaming the Court of Appeal for not having distinguished between the various acts making up the ships’ registration procedure. The French Treasury argued that the delivery and maintenance of the seaworthiness certificates should be distinguished and handled separately from the other actions admitted as acts of sovereignty. According to the French Treasury’s thesis, the registration procedure would be split between a sovereign decisional dimension whose sovereign character is not disputed and a practical dimension "consisting in ensuring the ships’ safety and seaworthiness, a duty not eligible to the status of jura emperii”.

But the French Supreme Court took a different view and held that the ships’ registration operations were only one and the same act. Indeed the Montego Bay Convention, Article 91 provides, "Every state shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory and for the right to fly its flag”.

According to the International Convention for the Safety of the Sea, which allows states to contract out ship inspections and surveys to classification societies, like the majority of states, the Maltese Republic is using such firms to discharge its statutory inspection duties as a flag state.

Under both international and French law, the issue of seaworthiness certificates as part of the ship registration procedure is classified as an act of sovereignty. In other words, the French courts have admitted that the charges against the MMA couldn’t be upheld as the MMA had complied with international maritime law.