In November 2002, the Bahamas-flagged oil tanker PRESTIGE, heading from the Baltic to Asia with a cargo of heavy fuel oil, began to break up in bad weather in the Bay of Biscay.

Upon seeking refuge in a Spanish port, she was instead ordered by the Spanish authorities to be towed out to sea, where she sank in deep water, causing a large quantity of her cargo to pollute the French and Spanish coasts. 

The Spanish State filed a US$5b lawsuit in May 2003 at a District Court in New York against the American classification society, American Bureau of Shipping (“ABS”), alleging that ABS’ negligence played a part in the sinking of the PRESTIGE.

The claim in tort was made up of the estimated clean-up costs as well as the government’s administrative costs in respect of the incident. The claims were dismissed. 

The Court stated that it was unwilling to accept the Spanish Government’s proposed rule that “a Classification society owes a duty to refrain from reckless behaviour to all coastal States that could foreseeably be harmed by failures of classified ships;” finding that that would amount to an “unwarranted expansion of the existing scope of tort liability.”

The Court also held that such an expansion would be inconsistent with a shipowner’s non-delegable duty to provide a seaworthy ship. Spain appealed against the judgment of the District Court.

The Court of Appeal did not address the legal issue of whether ABS owed a duty to coastal states to avoid reckless behaviour. Instead, the Court held that Spain had not proved that ABS had acted in a reckless manner in this particular instance.

Spain has not appealed against the judgment and therefore, the judgment is final and this matter is closed.

The French government filed a claim in France against ABS in 2010, arguing that the failings of ABS in its activity of classification of ships had contributed to the occurrence of the incident.

ABS opposed this action relying on the defence of sovereign immunity, arguing that its activity of classification was closely linked to the certification activity which is related to the sovereignty of states, in particular the Bahamas (the flag State of the PRESTIGE). In 2014, the French Court issued a decision in favour of ABS on a motion to dismiss on the grounds of sovereign immunity.

The French government appealed the decision. In 2017, the Court of Appeals reversed the decision of the Court of First Instance, concluding that ABS cannot invoke immunity from jurisdiction, and ordered the lower court to proceed with the procedural issues and the merits.

The incident remains an open case due to ongoing legal proceedings in France.

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