スペインの2002年11月のプレステージ石油輸送船沈没事故の裁判の判決の別の教訓
Otra lectura de la sentencia del 'Prestige'
Detrás de un daño que merece ser indemnizado no siempre hay un proceder delictivo, por mucho
que nos empeñemos en buscar responsabilidades penales en cada accidente de relevancia mediática
Juan Luis Pulido Begines 19 NOV 2013 - 00:00 CET
Another reading of the judgment of the 'Prestige'
Behind damage should be compensated that there is not always a criminal proceeding, even
we must strive to find criminal liability in every accident media relevance
Juan Luis Pulido Begines 19 NOV 2013 - 00:00 CET
It issued the judgment of Prestige and , predictably , has unleashed a cascade of reactions , most of which has been harshly critical of the resolution. The generality of commentators alleged that the accident of the ship and the damages are beyond repair , that statement is not accurate.
The resolution issued by the Provincial Court of A Coruña requires analysis peaceful , away from political considerations and emotional factors , which may be understandable and justified , but it is important to separate when judging the essential work carried out by courts under the rule of law. Because, incredibly, is ultimately necessary to repeat , again and again , who wants to hear that we are in a state of law .
In this framework, the rule of law and we assume that all undisputed claim at this point in history, the courts are not to " do justice " in the abstract , but to apply the law. So the only logical and appropriate to prosecute the work of the tribunal way is to ask : are correctly applied the law that was applicable ?
Here, after an in-depth reading of the judgment , I think he fits right , ie , the court has applied the law in a correct way , it may be debatable, like almost everything in the legal field, but in no way establishes the " impunity of pollutants " to which reference has been made regularly in recent days in almost all media.
The sentence is analyzed which concludes that the facts are not prosecuted offense (except in the case of Mangouras , which I will discuss later ) . In the course of criminal proceedings operates the presumption of innocence and , following extensive expertise and a lengthy trial , the court concludes that it has failed to form sufficient to destroy that presumption conviction. It is thus absolving the parties in question .
Those who should pay is the owner of the ship and the IOPC Fund , not the accused in A Coruña
As there has been no crime , there can be no civil liability arising from crime. But that does not mean they do not arise civil liability , or damage are to be beyond repair . What happens is that it will have to resort to the appropriate procedure , which is not criminal , but civil . And in this field , applicable law ( covenants CLC and FUND 1992 ) is abundantly clear : there is objective and limited liability , which operates on several levels. At the first level , it would be responsible shipowner Prestige , up to an amount of about 25 million euros. As this figure obviously not even remotely cover the amount of damage , also operates a second level of responsibility to cover the total amount of 180 million euros , which , if any , would pay the IOPC (International Fund for Compensation damage to oil pollution ) . The damage that exceeded that figure would be the ones left without repair.
A lot of this regime may seem insufficient or inadequate , but that is embodied in the applicable law and therefore must be accepted . Those who deem objectionable must direct their criticism and proposals for reform to those who have the power to change it, ie legislators , but not against the courts should simply abide , like it or not . Obviously , the numbers of redress under these agreements are not appropriate for an incident such as the Prestige . Therefore, as an immediate result of the incident a second fund that serves as a third level of responsibility , even an approximate figure of 900 million euros was established . If today happens in our waters a similar accident to that comment , that would be the maximum amount of compensation to which the injured might choose .
Were these limits are appropriate ? Is it fair that no such compensation caps ? This is an old issue that was solved years ago : in the field of transport in all its forms , operating systems with limited liability, without which it would be impossible to ensure the risks involved in the operation of ships , aircraft and modern trains .
In any case, what is clear and it should be noted that this responsibility is limited , is objective , ie , it exists whether or not negligence somewhere. So yes in this field governing the polluter pays principle . Another thing is who should pay is one designated by law, in this case, the shipowner and the IOPC Fund , and not those who have been sued criminally in A Coruña.
The judgment of the trial court in any way is the nonsense that tries to present
And, despite the inclination, increasingly widespread , to settle conflicts with legal and moral blame and sentencing , law, seeking equanimity, often take the view that the criminal proceedings are not appropriate to address these issues. Behind damage should be compensated that there is not always a criminal proceeding , however much we try hard to look for criminal liability in every accident of media attention .
Obviously when he attends an indictable criminal behavior has become operational criminal jurisdiction. But whereas in civil proceedings polluter pays , without going into any other consideration , in response to a single target damage, criminal repair pathway is obtained only if it is proven the existence of a crime. And that 's what moves coruñesa settled judgment : neither the chief engineer , and the CEO of Merchant damage or offense committed against the environment . Once the evidence and surveys , remains unknown for sure what could be the cause of what happened, or what should have been the appropriate response to the emergency situation created by the catastrophic failure of Prestige , hence can not be established with enhanced security requiring criminal law criminal liability for any damages.
The case is different captain . He is condemned not by pollution but by disobedience to the Spanish maritime authorities. It was proven he was told repeatedly and clearly imperative to give tow the vessel , so as to realize the order of the Spanish maritime authority had decided to steer the ship of the Galician coast . Despite this express command , the captain decides not to comply and disobeys who had command of the rescue at that time, the Spanish maritime authorities , claiming he had to talk to its owner , took about three hours to perform the query , ' excuse that , in the opinion of the court, does not relieve him of criminal responsibility. The judgment will be satisfied that the captain was at that time more concerned about the economic consequences of a trailer that was required urgent and reasonable , which address a situation of maximum emergency and , while not ruling that the decision be based on orders from owner , he was solely responsible , for " intentionally spurned the principle of authority." And , here itself , existing criminal behavior considered proven , is condemned .
Therefore, we conclude that the judgment in any way is the nonsense that is pretending to present . Who you would consider doing another interpretation of the law is still open via its defense , by application , although the strength of the proven facts of the resolution puts the hard part. On another level, one finds that the applicable law is improved, which is addressed to the competent legislative authorities to request the appropriate regulatory change , with foresight , head work, and not wait for another catastrophe occurs and judges make inventions legal .
Juan Luis Pulido Begines is Professor of Commercial Law at the University of Cádiz . The author of the third party liability of ship classification societies .
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