Liability for oil pollution damage is already extensively covered by international conventions. The ECJ's judgment in Commune de Mesquer v Total France SA and Total International Ltd (June 24, 2008) confirms, however, that European waste law also applies.

A number of parties, for example charterers and oil sellers, are at risk of additional liability as a result of the judgment.

The case arose out of coastal damage in the French municipality of Mesquer as a result of heavy fuel oil spilled from the Erika in 1999. Mesquer claimed clean-up costs in the usual way under the international regime against the shipowner and the International Oil Pollution Compensation Fund. A settlement was reached.

Mesquer then pursued Total. At the time the accident occurred, Total International owned the oil and was the charterer. Total International had purchased the oil from Total France. Neither entity was obviously exposed to liability under the international regime. However, Mesquer brought its claim under waste law. Questions on the applicability of the European Waste Framework Directive (the "Directive") in such circumstances were referred to the ECJ.

The ECJ considered that heavy fuel oil carried by ship was not "waste" under the directive as it is commercially exploitable and can be used without further processing.

However, when it is accidentally spilled at sea, mixed with water and sediment, washed up on a member state's shoreline and cannot be exploited or marketed without processing, it is "waste" and the Directive applies.

As to who was responsible for the waste, article 15 of the Directive provides that "in accordance with the polluter pays principle, the cost of disposing of waste must be borne by the holder ... and/or previous holders or the producer of the product from which the waste came".

The ECJ held that, in respect of oil spilled accidentally at sea:

  • the shipowner in possession of the oil immediately before it becomes waste may be regarded as having produced the waste and, on that basis, be classified as a "holder"; and
  • the seller of the oil and/or charterer of the ship carrying it may be regarded as a producer of the waste and thereby as a "previous holder" if the national court finds that they contributed to the risk that the pollution caused by the shipwreck would occur, in particular if it failed to take measures to prevent such an incident, such as measures concerning the choice of ship.

In the ECJ's view, European Union member states were bound by the result desired by article 15 of the Directive but had a choice of form and methods of achieving it. This meant if the member state participated in, and passed national laws to reflect, the international regime and thus limited the liability of "holders" and "previous holders", their national law also had to make provision for clean-up costs to be covered by "the producer of the product from which the waste came" to deal with circumstances where such costs were not fully met by the international regime. However, such a producer could not be liable for the costs unless it has contributed to the risk that the shipwreck will occur. 

The ECJ made it clear the European Community was not bound by the international regime and the application of the Directive was not affected by it.

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