By Andrew Spurrier in Paris Thursday 17 January 2008

THE Total oil group has stopped short of announcing an appeal against its condemnation in the Erika trial for causing pollution, indicating only that it intends to make use of the 10 days allowed it to come to a decision. 

It claimed that there were "numerous grounds" for appeal against yesterday's verdict from the Paris Tribunal de Grande Instance but gave the impression that it might forgo an appeal in an effort to appease French public opinion. 

The oil group is widely seen by the French public as the principal instigator of the pollution disaster provoked by the break-up and sinking of the tanker off the Brittany coast in December, 1999. 

Apart from the €375,000 ($548,000) fine imposed on it by the trial judge for pollution, Total has been ordered to share with classification society Rina, Erika owner Giuseppe Savarese and technical manager Antonio Pollara damages totalling €192m. 

It said afterwards that it was "disappointed" by the judgment, claiming that the court had accepted that the direct cause of the sinking was outside its control. 

Total said it was pleased, however, with the acquittal of shipping manager Bertrand Thouilin, the last employee facing charges, and with the acquittal of Total itself on the charge of recklessly endangering human life. 

It was critical of the trial judge's finding that it had failed to exercise due caution in its inspection and vetting of the 25-year-old tanker. 

It found it hard to understand how it could be found guilty for shortcomings in a procedure which it had introduced voluntarily to improve its shipping safety standards. 

And it warned that the court's judgment could have an adverse effect on shipping safety in going against the generally accepted interpretation of international maritime law that charterers cannot be held responsible for the structural state of vessels which carry their cargoes. "By assigning liability to Total," the oil group said, "the court's verdict could create confusion concerning the responsibilities of the players and have the contradictory effect of making shipping less safe." 

The French shipowners' organisation Armateurs de France congratulated the court on its condemnation of Messrs Savarese and Pollara and Rina but made no mention of Total. 

"The owner, his technical manager and the classification society could not be ignorant of the ship's grave structural problem and that it was not up to standard," it said. "In these conditions one can only rejoice at their condemnation. It is exemplary for the improvement of our profession." 

The organisation expressed reservations, however, about the compensation, and in particular the award for the first time in France of damages for general environmental as opposed to specific property damage. 

Noting that compensation payments had already been made by the International Oil Pollution Compensation Fund, it said that it was not opposed to the payment of additional compensation for environmental damage. 

"But should this notion not be defined in its principle and its modalities by the legislator (at international level) rather than by a court?" 

There were no such reservations on the part of environmental organisations or the local authorities along the 400 km stretch of the French Atlantic coast polluted by the Erika's heavy fuel oil cargo. 

They generally welcomed the court's verdict and, in particular, the condemnation of Total. 

The only reservations most of them had were over the size of the damages award which fell a long way short of the €500m-€1bn they had been hoping for. 

"We hope this judgment will become jurisprudence and snowball throughout the world," said Greenpeace France. 

"International law should be modified to take account of environmental damage. Maritime law, too, should be reformed so that the present system of encouragement of charterers to be irresponsible is rendered impossible." 

Another environmental defence organisation, Robin des Bois, hailed the outcome as very positive.
"This judgment in first instance renders fragile the strategy of dilution of responsibilities followed by the different players in international maritime transport and should, if it is definitive, encourage them to greater rigour in the choice and operation of ships," it said. 

But it took a negative view of the level of damages awarded for environmental damage, which it estimated at €1.3m out of the total €192m awarded. 

It said that the negative effects of the pollution on plant, bird and animal life, as well as on the marine food chain and fish stocks, had been underestimated if not forgotten. 

"The sea has been sold off cheap," it claimed. "It is the sales season." It also questioned the court president's affirmation that the effects of pollution from the Erika had lasted two years. It said it had been established that, 20 years after the Exxon Valdez oil spill, several species of birds, shellfish, fish and mammals had still to recover their pre-casualty status. 

As a result, it said, its principal claim that the guilty parties should be ordered to finance the biological monitoring of the effects of pollution from the Erika until 2019 had not been taken into account.

Some thoughts on EC maritime law one year after having finished the IMLI Course on international maritime law.

International Maritime Law is an important field of law, because it regulates what is perhaps the largest support service to commerce - maritime transport. There are two important branches of international maritime law - shipping law, which regulates the private operation of ships, and public international maritime law, i.e. the law of the sea.

The IMO International Maritime Law Institute is situated at Tal-Qroqq University Grounds, and trains students from a host of different countries in law and practice in the maritime field, straddling both private law as well as public international law. The focus is mainly on the international conventions and practice, wherever possible, so as to give a knowledge on the international regime on each subject. It is then the students' task to familiarise themselves with the regimes applicable in their respective countries, based on the conventions which were adhered to within their jurisdiction.

Last September, 39 students enrolled at the institute - 36 following the Master of Laws programme, and 4 following the Advanced Diploma. This year's course was the largest complement ever, an encouraging sign of the institute's growing success. There have also been students following short courses at the Institute during the year.  Since the students come from countries having different legal systems, the course kicks off with a number of lectures on the different legal systems and introductions to the two main areas of law: public international law and shipping law.

Subsequently a number of courses are given, each comprising of a series of lectures, imparting knowledge on the various areas of law involved. Interestingly, the course has the unique feature of providing pratical knowledge too: it takes into account the fact that the students are, in many cases, already practising lawyers or are somehow employed in the maritime field. This year, as always, the course was composed of lawyers, a number of Captains, Commanders and other Officers from Navies all over the world, a judge, and various holders of important offices within their countries.

This year included visits by various renowned experts or eminent firgures in international maritime law who imparted their knowledge to the students in courses such as: Carriage of Goods by Sea by Professor Francis Reynolds, Marine Insurance by Dr Marko Pavliha and Professor Pingf Sze, Marine Environment by Mr Mitja Grbec and Dr Stefano Filletti. Some of the lectures had a more practical approach, such as those on Maritime Safety and Security. One of these visitors was Dr Philippe Boisson from Bureau Veritas, who gave a detailed and fascinating expostion of the legal issues was accompanied by pratical issues whih help to understand the reasons behind the law, and how to translate that law into the day-to-day running of a ship. Another such visitor was Prof. F. Wiswall, a world expert on collisions and now at the helm of the Comite' Maritime Internationale, who highlighted many practical and legal issues concerning collissions at sea. Other visitors of eminent standing included  President Emeritus of Portugal Mario Soares, whose contribution to the law of the sea was of deep significance, senior officials from the US Coast Guard, Commissioner Joe Borg who is currently spearheading the EU's Green Paper on Maritime Policy and our very own Prime Minister Lawrence Gonzi, himself a former practitioner in maritime law.

As always, the sheer driving force behind this course was the lecturing complement of the Institute. Professor Attard, Director of IMLI, is at the helm, providing the students with many networking opportunities, as well as an astounding insight into the law of the sea. His lectures are delivered with a passion on the subject, which is highly infectious as he delves further into issues concerning delimitation of maritime zones, the high seas, the Exclusive Economic Zone, and a multitude of international law issues that are currently of interest. The resident and regular lecturers, through their encouragement and support for the students, have made following the course a pleasant journey indeed.

Other than the academic work, life at IMLI has also entailed interesting extracurricular activities of interest. This included a number of receptions where the students integrated with the visiting lectures, field trips to two ships, an international cooking competition, a photographic competition entitled "Life at IMLI" and of course, several student-organised activities.

Above all, perhaps the greatest lesson to be learned for many was about tolerance. Since the cultures of the participants vary immensely, students had to exercise discretion and tolerance with respect to each other, and learn to appreciate that other people from a different culture have a different way of doing things. Of course this will be particularly useful to those of us that will proceed to obtain employment in a multi-cultural environment.

The course entailed attendance of three lectures daily, which spanned throughout most of the day. Tests and assignments during the first term permitted guaging progress. The second term proceeded at a much faster pace, entailing submission of the legislative drafting project and the dissertation, assignment and, at the end, the final examinations: one exam in Shipping Law and one exam in the Law of the Sea.  Tension was rife during the last month - as would be expected - but all's well that ends well, and the students are now looking forward to continuing their careers and putting their knowledge into use.

For most participants, reverting to student life has meant that, for the past eight months, many responsibilities were lifted, and one was only required to focus on the completion of the course. The rest became secondary. Other than the tension associated with exams, life at IMLI could be said to have been immensely interesting and, I dare say, fun.


The course ended formally on graduation day, this year on the 5th May 2007. This was followed by a field trip to London, which is the heart of maritime law activity. A number of visits to important institutions were made. From London, most students headed back out to their homes all over the world. 

The subject I chose for my dissertation concerns competition in maritime transport. A copy may be obtained upon request.

The Maltese Condominium Act requires that an administrator is appointed for each condominium, in order to represent the interests of all the members of the condominium.  A condominium is a block containing at least 4 units or apartments.  Further details may be obtained by downloading the law on the website, http://justice.gov.mt or requesting a copy of the Land Registry's guidance notes on the Condominium Act from the Land Registry itself.  

The law imposes specific rights and duties on the adminsitrator, including legal and judicial representation of the block in lawsuits, and the right to reimbursements made in the interests of the block, and the obligation to issue insurance policies covering the block.

The administrator has to be registered with the Land Registry and this will include a requirement to obtain a map issued by the same in order to indicate precisely the location of the block.

The administrator, in the name of the condominium, may opt to register any rules which the condominium is regulated by.  However the Condominium Act is rather generic and therefore little is required to regulate it other than the law itself.

The services of administrator are provided by this firm. Charges will depend on the work entailed and the condition of the block.  Such services would cover all matters of a general interest in the common part.  Any professional legal services provided over and above this will be negotiated separately.

Luckily we have experienced a few changes, one of which has been to abolish the writ of summons (known as citazzjoni) and replace it with a sworn declaration. This means that instead of filing a writ of summons and a sworn declaration, one just files the sworn declaration, which is a consolidation of both documents. This should simplify and speed up the filing of civil cases, making it less onerous for the plaintiff.

Another recent change has been to add a new type of judicial letter, one which intimates the recipient that if he does not reply to the letter within thirty days, the letter becomes executive title. This means that the person who filed it can proceed to file executive warrants and recover the amounts claimed. Caution must be exercised when handling these letters, and a person is well advised to contact his lawyer upon receipt of such a lawyer.

Data Protection law was introduced some time ago in Malta - rather recently, and very much in line with the EU Frameworks. Malta is not party to the European Convention on data protection, however it does adhere to the principles enshrined in the EU framework, both generically as well as in the field relating to telecoms.

Although this has always been an important right of the individual, data protection is now even more important in the light of the ease with which data is processed in today's technological world.

A customer would be well-advised to ensure compliance with data protection rules when processing data relating to persons.

The Electronic Commerce Act of  2001,  is based on the E-Commerce Directive of the EU. It regulates in some detail the validity of  electronic contracts and transactions.  It also provides for rules on the transmission of  electronic  communications, provision of  signature certification, as to the time and place when the electronic  communication is deemed to have been dispatched and received.  This law is administered by the Malta Communications Authority and has constituted important developments governing sales over the Internet in Malta.

The Electronic Commerce Act regulates also the liability of  intermediary  service providers - mere conduiting, caching and hosting would fall under different rules than thos applying to the actual service provider or content provider.

Competition Law in Malta is largely based on Articles 81 and 82 of the EC Treaty and the practice developed by the European Commission and by the European Court of Justice.

The Office of Fair Trade, and the Commission for Fair Competition, deal with matters relating to violations of the Competition Act in Malta.  This Act centres around the above captioned Articles, while adapting them to the local scenario.

Services offered in this sector include actions before the said Office, as well as legal advice as to compatibility of agreements and practices with the said Act.

Formerly referred to as Telecommunications Law, this new sector encompasses a wider spectrum of services since the law now attempts be as technologically neutral as possible.

The new EU regulatory framework imposes a number of obligations on the Member States to further open up their telecom markets to competition, including lightening of authorisation regimes and reducing the number of sector-specific obligations that are imposed on market players.

This new system attempts to apply in a more generic fashion the Competition Law principles under Articles 81 and 82 of the EC Treaty. This will entail the involvement of the Competition Authorities besides the National Regulatory Authorities for Electronic Communications.

While there is one Framework Directive, the Specific Directives outline those obligations, remnants of the previous regime, which have to be applied in the absence of competition.

Malta has transposed this framework, and it is already in force.