This was an appeal in cassation from the judgment of the Bordeaux Court of Appeal of 6 March 2017 (see CMI204) following the rupture and sinking of the tanker Prestige, flying the flag of the Bahamas. During the towing of the Prestige off the Spanish coast, part of its oil cargo spilled into the sea, causing maritime and coastal pollution. The French State brought proceedings against the American Bureau of Shipping, ABSG Consulting Inc and the ABS Group of Companies (the ABS entities), US classification and certification societies, before the Bordeaux courts for liability for faults committed in their activity of classification of ships and compensation for damage suffered in its territory, territorial sea and exclusive economic zone.

The ABS entities objected to the Court of Appeal judgment dismissing their exception of jurisdictional immunity. They argued that UNCLOS was approved on behalf of the European Community by Council Decision 98/392/EC of 23 March 1998 and had thus been incorporated into the Community legal order. The Court of Justice of the European Union ruled in the Intertanko judgment of 3 June 2008 (C-308/06) that UNCLOS 'does not set up rules intended to apply directly and immediately to individuals and to confer on them rights or freedoms liable to be invoked against States, regardless of the attitude of the flag State of the vessel'. Therefore UNCLOS, and in particular art 236, cannot be held to be directly applicable in domestic law. It does not matter, in this regard, that UNCLOS was able, on certain points, to codify customary international law; in relying on art 236 of UNCLOS to deny the ABS entities the benefit of immunity from jurisdiction, the Court of Appeal violated art 267 of the Treaty on the Functioning of the European Union (TFEU), and the principles governing the application of international law before domestic courts.

The ABS entities further contended that art 236 of UNCLOS excluded warships, auxiliary ships and State ships used exclusively for non-commercial public service purposes from the provisions of the Convention relating to the protection and preservation of the marine environment. The provision was not intended to regulate the conditions under which a society for the classification and certification of ships, delegated by a foreign State, can benefit from immunity from jurisdiction when its civil liability is sought due to the carrying out of its activities.

Further, according to art 229 of UNCLOS, '[n]othing in this Convention affects the institution of civil proceedings in respect of any claim for loss or damage resulting from pollution of the marine environment'. It follows from this provision that UNCLOS, which does not include a civil liability regime specific to pollution of the marine environment, leaves the matter to national legislation. By finding that art 236 of the Convention necessarily covers both criminal proceedings and civil proceedings instituted following a spill of polluting substances, the Court of Appeal infringed arts 229 and 236 of UNCLOS. The ABS entities intervened exclusively for the classification and certification of the ship; they did not participate in any way whatsoever in the operation of the vessel. By excluding them from the benefit of jurisdictional immunity on the grounds that the ABS entities had 'intervened in the act of transport' carried out by a merchant ship, the Court of Appeal violated art 236 of UNCLOS.

Held: Appeal in cassation dismissed.

Certification and classification activities, which come under different legal regimes, are distinguishable. Only the first authorises a private law company to avail itself of the jurisdictional immunity of the flag State which has specially empowered to issue statutory certification on its behalf to the owner of a vessel.

The Court of Appeal held that the responsibility of the ABS entities, private law companies, was called into question, not for their certification activity carried out on behalf of the Bahamas, but for that of classification, due to failures committed in fulfilling the obligations of technical surveys and periodic inspections to which they were bound by the agreement concluded with the shipowner. The Court of Appeal thus legally justified its decision.