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不正義への戦い
La batalla del ‘Prestige’
España se equivocó buscando justicia en los tribunales de Estados Unidos. Ahora es tarde para rectificar
Ignacio Arroyo Martínez 20 DIC 2013 - 12:01 CET
The Battle of the 'Prestige'
Spain was wrong to seek justice in the courts of the United States. Now too late to rectify
Ignacio Martínez Arroyo 20 DIC 2013 - 12:01 CET
It is obvious . Following the judgment of the Court of Appeal in A Coruña on Prestige , the media rushed to the news and its opinion on the correctness or otherwise of the decision. With few exceptions, the vast majority has negatively valued. Surprising, absurd , disappointing, humiliating , unjust adjectives are commonly used these days.
However, beyond the value judgment due, are two objective facts. First, almost all litigants are dissatisfied with the decision because they have announced the corresponding resource. Second, none of the accused is responsible , obvious and substantial , pollution damage . The € 4,238 million of which cost our cleaning costs and other compensation to victims , are irrecoverable because there is no responsible person , at least that is the judgment.
It does not take an expert in law and less on maritime law , to know that something is wrong with the Spanish legal ground. How is it possible that trials have completed similar claims in other jurisdictions , imposing the payment of compensation for causing severe pollution subject ? I refer specifically to the 200 million euro imposed by the French courts to oil Belgian fanco Total, the shipowner and the Italian classification society in the wreck of the Erika . And more recently the fine 4,500 million that oil British Petroleum agreed to pay the U.S. government by the oil spill in the Gulf of Mexico, thus avoiding a judgment in which compensation would exceed expected .
We remain quixotic , in the less noble sense of the term . Here we have taken to resolve diezaños (sic acquit ) , still lack the final judgment , and still do not know who the individual or individuals responsible for the contamination .
From this perspective do not lack a point to those who qualify the statement at least surprising.
They do not need some reason to qualify the statement that at least surprising
But what has not been said yet is that we have closed the doors permanently . Not by the judgment , as to be actionable , it can thrive some resource , but it is very improbable, if not impossible , considering the findings of fact and unproven both in the judgment of the court of Corcubión as in the recent Audience A Coruña. Subjects will be responsible only if they successfully any of the theses attributed the cause of pollution or to the Spanish government, or to the shipping company, the captain and / or the American Society classification. In short, non- simplifying: or pay " all Spanish " or paid " other foreign makers ."
Make no mistake, beyond the politics of the decision, state responsibility declare that the order issued by the Director General of Merchant of moving the Prestige was the cause of the incident , obviously means that the money already advanced the Government to injured , plus you can further claim was paid and paid with our tax money . So , with all the Spaniards, though not with absolute certainty you reader , nor I, were the cause of the damage.
Conversely , if declared ( yet unlikely ) responsibility for " other foreign makers " only hope is to collect the single solvent : American classification society American Bureau Service, whose headquarters is split between Houston and New York . For the other , or are not, or lack sufficient equity (the captain and the shipping ) or already paid something like was the case CLC and Fund Insurance P & I.
The above considerations place this reflection on the topic he was targeted . It seems a matter of detail, but the court battle "Prestige" is not lost in Spain but in the United States.
The money already advanced the Government paid to injured and paid with our tax money
Indeed , what is not discussed enough are the four judgments handed down by U.S. courts contrary to the Kingdom of Spain in Case Prestige . The Spanish prosecutions in the U.S. has claimed damages amounting to approximately 4,000 million euros, a classification society American Bureau Service, because his performance was reckless ( reckless ) to conduct inspections of oil and fail to notice the serious structural failures in the cargo holds . These inspections have been done properly , the Prestige , it had not successfully passed the test of navigability and therefore would not have obtained the certificate of class. And navigation prohibited without the classification certificate , the accident would not have occurred . In summary this thesis has been deployed by the legal team hired by the Spanish Government to the U.S. jurisdiction.
However, the two judgments of the Court of the Southern District of New York ( January 2, 2008 and August 3, 2010 ) and the two judgments given on appeal by the Court for the Second Circuit of the United States ( June 12, 2009 and 29 August 2012 ) have ruled against the Kingdom of Spain "because Spain has failed to file a not sufficient for a reasonable jury could resolve that ABS acted recklessly in its monitoring and that was the proximate cause of the Prestige incident test."
This is not the time come to appreciate the merits and less if the evidence was sufficient or not . Mind emphasize something simpler but more fundamental . Who came up with the strange idea of going to court as swift in North America ? We hold that the trial strategy was not successful . Why play the game out? Did the Spanish jurisdiction is not the right to judge all fronts featuring the Prestige case? Have we forgotten that the competent forum often ( more correctly , should) be the closest to the scene ? I do not understand . How is it possible that most of the evidence being near home, but the effort was spent in other countries, we go away to seek justice , paradoxically , in the house of our adversary? Maybe we do not trust the Spanish justice and therefore prefer foreign ? Go ahead I have nothing against the independence of the U.S. jurisdiction. But everyone prefers to play the game at home. Especially when the process - I mean the rules of international jurisdiction , are so favorable to the decision.
But the worst is yet to come . For if it prosper outside the resource and Spain still possible to obtain a judgment against ABS, the only solvent entity , the execution would go against the principle res judicata . American judges tell us rightly . I'm sorry, the matter was tried already !
In conclusion , it seems that for this trip so did not need saddlebags.
Ignacio Arroyo is Professor of Commercial Law at the Autonomous University of Barcelona and was president of the Spanish Maritime Law Association from 2004 to 2012.
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