This was an appeal in cassation against the judgment of the Rennes Court of Appeal, 3 June 2008. Following the sinking of the oil tanker Erika belonging to the company Tevere Shipping Co Ltd and insured with the Steamship Mutual Underwriting Association Ltd, slicks of oil polluted the Loire-Atlantique coasts and led the salt workers of Les Salines de Guérande (SCA) to decide not to produce salt for the year 2000. The International Oil Pollution Compensation Fund (IOPC Fund) and the vessel's insurer requested the appointment of an expert to determine the damage to the salt workers and its Co-operative.

The SCA criticised the judgment under appeal. The SCA had sought compensation for its loss of margin on sales. Salt workers who were members of the Co-operative had a statutory obligation to deliver their entire annual production to it, while the Co-operative's object was to resell this production at a profit. The total absence of salt production in 2000, for which the salt workers had been compensated, resulted in a loss of margin on the resale of the production which should have occurred in 2000. The existence of saved up stock allowed the SCA only to defer this loss and to spread it out over time, but not to eliminate it. By not appreciating this damage, which was distinct from that resulting from the sales quotas, and which was in a direct cause and effect relationship with the absence of salt production and therefore with the pollution caused by the shipwreck of the Erika, the Court of Appeal did not legally justify its decision with regard to arts 1, 2 and 3 of the CLC Convention 1992.

The victim is never required to limit its damage in the interest of the liable person. The Court of Appeal's finding that the SCA, faced with an exceptional situation due to the pollution, should have taken measures to limit its damage, and therefore should have favoured the immediate maintenance of sales, even if it meant taking a risk on its stocks, violated arts 1, 2 and 3 of the CLC Convention 1992, together with art 4 of the Fund Convention 1992.

Held: Partial reversal.

SCA maintained that it had suffered 'commercial damage linked to the lack of production of salt in 2000 and to the correlative need to exploit its stock to satisfy its customers by limiting sales'. The Court of Appeal found that when the oil spill occurred, SCA had a stock of salt corresponding to three years of production, that there had never been a constant increase in sales, which had always remained close to an average of 9,347 tonnes per year, whereas they had risen to 10,175 tonnes in 2000, that the SCA could have met demand until 2001, if not 2002, without needing to limit its sales, and that problems might only have occurred in 2005. The Court of Appeal was entitled to hold that the decision taken by the SCA in September 2001 to limit its sales to avoid a shortage of stocks was premature and was not binding economically, so that the drop in sales in the years following the incident was not the consequence of the shipwreck of the Erika, but was the result of this management decision.

However, the Court of Appeal erred in rejecting the claim of the SCA for various additional costs. These were for equipment and surveillance costs incurred to prevent pollution from entering the saltworks and to prevent any further pollution. For that reason, the judgment under appeal is struck down and annulled, but only in that it rejects the SCA's claim for 'various additional costs'. On this point, the case and the parties are returned to the position they were in before the aforementioned judgment, and the case is returned to the Rennes Court of Appeal, otherwise constituted, to be decided correctly.