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DMC/SandT/08/03
Reino de Espana v. The American Bureau of Shipping, Inc.
United States of America: United States District Court for the Southern District
of New York; Hon. Laura Taylor Swain; 2008 U.S. Dist. LEXIS 3; January 2, 2008
SHIPPING: OIL POLLUTION: CLASSIFICATION SOCIETY: INTERNATIONAL CONVENTION ON
CIVIL LIABILITY FOR OIL POLLUTION DAMAGE: "ANY OTHER PERSON WHO… PERFORMS
SERVICES FOR THE SHIP: WHETHER A CONTRACTING STATE MAY BRING CLAIMS IN
JURISDICTIONS OTHER THAN THOSE PROVIDED BY THE CONVENTION
Summary
In granting summary judgment in favor of defendant, The American Bureau of
Shipping, Inc. ("ABS"), the United States District Court for the
Southern District of New York held that the International Convention on Civil
Liability for Oil Pollution Damage ("Convention") governed the claims
by the Government of Spain against ABS because ABS is an "other
person" within the meaning of the Article III(4)(b) of the Convention. As a
result, the Court further held that it lacked subject matter jurisdiction to
adjudicate the Government of Spain’s claims, since the Convention provided
that claims had to be brought in the courts of the Contracting State where the
damage occurred
DMC Category Rating: Confirmed
Case note submitted by Brian S. Tretter, an attorney with the
firm Blank Rome LLP, in New York. Blank
Rome are International Contributors to the website for the United States
Facts
On November 19, 2002, the M/T Prestige sank off the coast of Spain,
discharging millions of gallons of oil into Spain’s coastal waters. The Prestige
was built in compliance with the American Bureau of Shipping, Inc.’s
("ABS") 1973 "Rules for Building and Classing Steel
Vessels." Since its construction, the Prestige was periodically
surveyed/inspected to ensure it retained its ABS certification. At the time of
the casualty, the Prestige was listed in the ABS Record. The Government
of Spain ("Spain") brought suit against ABS in the United States
District Court for the Southern District of New York alleging that ABS was
negligent in classifying the Prestige as fit to carry oil cargoes. ABS
asserted several counterclaims against Spain seeking, among other things, to
offset any judgment entered against it with any recovery by Spain in several
other actions currently being prosecuted by Spain relating to the casualty.
ABS filed a motion for summary judgment arguing: (1) that Spain
was unable to prove the requisite degree of culpability under the International
Convention on Civil Liability for Oil Pollution (the "Convention") or,
alternatively, (2) that the Court was not the appropriate forum for the suit
under the terms of the Convention to which Spain and the Bahamas, the flag state
of the Prestige, are both signatories.
Judgment
The Court first considered whether Spain’s claims against ABS were covered
by the Convention. Article III(4)(b) of the Convention provides in relevant part
that no claim for compensation for pollution damage may be brought against
"the pilot or any other person who, without being a member of the crew,
performs services for the ship" unless the damage resulted from such person’s
personal act or omission with the intent to cause pollution damage or the person
acted recklessly and with knowledge that pollution damage would probably result.
The Court held that because ABS performed classification services for the Prestige
which are essential to the ship being able to operate, ABS was an "other
person" performing services for the ship within the meaning of the
Convention – in particular because Art.I(2) of the Convention 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." In so holding, the Court rejected Spain’s argument that
Article III(4)(b) of the Convention was only meant to cover individuals actually
working on the ship at the time of the pollution incident. Because ABS was
deemed an "other person," the Court held that the Convention was
applicable to Spain’s claims against ABS.
The Court next considered the applicability of the Convention’s
forum selection provision (contained in Article IX(1)) which requires an injured
party seeking recovery for pollution related damage occurring in the territory
of a contracting state to bring its claim in the courts of that state. Noting
that the Convention creates legal obligations "akin" to contractual
obligations to states that are signatories, the Court held that Spain must
pursue its claims against ABS in its own courts or in the courts of any other
injured signatory state. The Court rejected Spain’s argument that United
States courts are not obligated to respect the provisions of the Convention
since the United States is not a signatory. Accordingly, the Court granted ABS’s
motion and dismissed Spain’s claims against ABS. ABS withdrew its
counterclaims against Spain without prejudice in light of the Court’s
dismissal.
Although no notice of appeal has been filed to date [1 February
2008], Spain intends to appeal this decision to the United States Court of
Appeals for the Second Circuit.
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