This action arose from the sinking of the oil tanker The Prestige, off the coast of Spain in November 2002. The Prestige discharged millions of gallons of oil into Spain’s coastal waters. Spain (the plaintiff) sought damages from American Bureau of Shipping Inc, ABS Group of Companies Inc, ABSG Consulting Inc, ABS Marine Services Inc (the defendants) on the ground that the defendants were negligent in classifying the Prestige as fit to carry fuel cargoes.

At the time that the Prestige sank off the coast of Spain, its registered owner was Mare Shipping Inc, a Liberian corporation. The Prestige was registered with the Commonwealth of the Bahamas and flew the Bahamian flag. On or about May 24, 2002, the Prestige was chartered by Crown Resources AG (Crown), a Swiss corporation. The Prestige was to carry oil cargo owned by Crown. After loading fuel cargo for Crown at St Petersburg, Russia, in October 2002, and at Ventspils, Latvia, in early November, Crown directed the Prestige to proceed to Gibraltar for further orders. After its departure, fully laden, the Prestige suffered structural failures that resulted in the discharge of large amounts of its fuel cargo in close proximity to the plaintiff's shorelines and coastal regions.

The plaintiff alleged wrongful conduct on the part of ABS in connection with the classification, certification, and inspection services performed for the Prestige. The defendants disputed those allegations and alleged that the sinking of the Prestige could have been avoided but for the plaintiff's handling of the disaster.

The defendants asserted that they were covered by the International Convention on Civil Liability for Oil Pollution Damage 1992 (CLC 1992) and argued that the plaintiff could not prove the standard of knowing and reckless conduct on their part that would be required to meet the standard for direct liability under the CLC 1992. The defendants also argued that because the pollution damage claims against them were covered by the CLC 1992, those claims could only be adjudicated by a court in a State that was a signatory to the CLC 1992.

Held: Action dismissed. Judgment for the defendants.

In the event of an oil shipping incident resulting in pollution damage in the territory of a signatory State, the CLC 1992 imposes strict, but limited, liability on the owner of a vessel carrying oil in bulk as cargo. The CLC 1992 channels liability to the vessel owner by exempting certain third parties from direct liability to the pollution damage victim except under certain circumstances. Article 3.4 provides that:

No claim for compensation for pollution damage may be made against the owner otherwise than in accordance with this Convention. Subject to the paragraph 5 of this Article, no claim for compensation for pollution damage under this Convention or otherwise may be made against:

(a) the servants or agents of the owner or the members of the crew;

(b) the pilot or any other person who, without being a member of the crew, performs services for the ship;

(c) any charterer (howsoever described, including a bareboat charterer), manager or operator of the ship;

(d) any person performing salvage operations with the consent of the owner or on the instructions of a competent public authority;

(e) any person taking preventative measures;

(f) all servants or agents of persons mentioned in subparagraphs (c), (d), and (e);

unless the damage resulted from their personal act or omission, committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result.

Article 9.1 limits the jurisdiction of claims governed by the CLC 1992 to the courts of State signatories to the CLC 1992 and provides:

Where an incident has caused pollution damage in the territory including the territorial sea of one or more Contracting States, or preventative measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea, actions for compensation may only be brought in the Courts of any such Contracting State or States.

The defendants argue that the CLC 1992 provides the exclusive vehicle for Spain’s assertion of pollution damage claims against because ABS was either a 'servant or agent of the owner' of the Prestige within the meaning of art 3.4.a, or an 'other person who, without being a member of the crew, perform[ed] services for the ship' within the meaning of art 3.4.b. The defendants' claim that ABS was a servant or agent is inconsistent with its position that it is an independent classification society that does not work at the direction or on behalf of shipowners. However, the defendants' 'other person' argument is weightier.

Article 1.2 defines 'person' as 'any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions'. The owner of the Prestige retained ABS to perform surveys to determine whether the Prestige complied with class rules and applicable statutes, and ABS provided certification services upon determining the Prestige was seaworthy.

The plaintiff argued the doctrine of ejusdem generis to support its argument that art 3.4.b was only intended to cover individuals (such as a pilot) working on a vessel at the time of the pollution incident, and was thus inapplicable to ABS. Ejusdem generis can only be referred to where there is uncertainty as to the meaning of a particular clause in a statute. The language and structure of arts 1 and 3 leave no room for uncertainty or ambiguity as to the meaning to be attributed to the word 'person' or the scope of the phrase 'the pilot or any other person who, without being a member of the crew, performs services for the ship'. The plaintiff's effort to narrow the meaning of the article by applying the doctrine of ejusdem generis must therefore fail.

Since the language of arts 1 and 3 is plain and unambiguous, the Court need not refer to ejusdem generis, negotiation history, or other extrinsic sources to determine its import. The undisputed factual record, even when read in light most favourable to the plaintiff, clearly indicates that ABS is a person who, without being a member of the crew performed services for the Prestige within the meaning of art 3.4. Accordingly, the CLC 1992 applies to the plaintiff’s claim.

Article 9.1 requires a party seeking to recover for pollution-related damage in the territory of a contracting State to bring its claim in the courts of such a State. Article 9.1 provides that:

Where an incident has caused pollution damage in the territory including the territorial sea of one or more Contracting States, or preventative measures have been taken to prevent or minimize pollution damage in such territory including the territorial sea, actions for compensation may only be brought in the Courts of any such Contracting State or States.

The United States is not a signatory to the CLC 1992, and the pollution damage is not alleged to have affected United States territory.

Spain is the injured party and is a contracting State to the CLC 1992. The CLC 1992 as a treaty creates legal obligations akin to contractual obligations on the States that are parties to it. The plaintiff's principal argument against dismissal on the basis of the CLC 1992's exclusivity and forum limitation is effectively that, because the United States is not a signatory to the CLC 1992, the United States is not bound to respect its provisions.

Article 9.1 grants jurisdiction of CLC 1992 claims to the courts of signatory States only. Thus, while ABS might, on the basis of the authorities cited by Spain, validly argue that Spain cannot rest a substantive cause of action in United States court litigation upon a treaty to which the United States is not a party, Spain has brought forth no support for the proposition that a United States court can broaden a cause of action under a treaty to which it is not a signatory by exercising jurisdiction over a claim defined by the treaty under circumstances in which the treaty itself precludes litigation by the plaintiff treaty signatory in the United States forum.

This Court can, and must, recognise the CLC 1992's limitations on pollution damage claims asserted by a country that has itself adopted the CLC 1992. Spain, as a signatory to the CLC 1992, is bound by the CLC 1992's provisions and, therefore, must pursue its claims under that Convention in its own courts, or those of another injured contracting State. Since the United States is a non-contracting State to the CLC 1992, this Court lacks the jurisdiction necessary to adjudicate Spain's claims arising from the pollution damage that resulted from the sinking of the Prestige.

Accordingly, the defendants' motion for summary judgment dismissing the plaintiff's claims against them is granted for lack of subject-matter jurisdiction.