Απάντηση της ΑΙΓΑΙΟΝ στην έκθεση του Διεθνές Ταμείου του IOPC Fund
Recently, the IOPC Fund published in its website a report on the progress of the “Alfa 1” case, which was a tanker insured by Aigaion against P&I risks and sunk in Elefsis Bay, Greece, on 5 March 2012, causing pollution. This report contains a number of inaccurate and erroneous conclusions, to which Aigaion wishes to respond.
The “Alfa 1”, a 1,648gt tanker with 12 cargo tanks, was one of five vessels which were separately owned but were operated under the same management and insured against liability risks by Aigaion under the same fleat policy. This was governed by English law and practice and, among others, it provided cover against various risks including “liabilities, costs and expenses incurred by reason of or in consequence of the actual or threatened accidental release or escape of oil or any pollution substance from the insured vessel”.
The Owners of the Alfa 1 requested from Aigaion to issue a blue card, evidencing that their vessel was insured against pollution risks in accordance with the provisions of the Civil Liability Convention 1992 (“CLC 92”), to which Greece is a party. In accordance with Art. VII.1 of CLC 92, such insurance was mandatory only in cases where the Alfa 1 would carry more than 2,000 m.t. of persistent oil. The “Alfa 1” in some voyages was carrying less than 2,000 m.t. of persistent oil and in some other voyages more than 2,000 m.t. of persistent oil. Therefore, on certain occasions the Owners needed Aigaion’s blue card so as to receive permission to perform voyages with the Alfa 1, whilst in some other they did not. However, because it was practically impossible for Aigaion to issue a new blue card each time the Alfa 1 would execute a voyage carrying more than 2,000 m.t. of persistent oil, Aigaion issued the subject blue card with a 12-months effect, which would apply only when the Alfa 1 would carry more than 2.000 m.t. of persistent oil.
The Alfa 1 sank in Elefsis Bay near Piraeus after striking a submerged wreck, on 5 March 2002. At the time of her sinking the “Alfa 1” was carrying (a) 274.58 m.t. of Marine Diesel Oil, (b) 304.63 m.t. of Fuel Oil 180 cst and (c) 1,514.14 m.t. of Fuel Oil 380 cst, i.e. she carried 1,818.77 m.t. of persistent oil and 274.58 m.t. of non-persistent oil in the sense of the CLC 92.
An estimated quantity of 330 metric tons of oil was spilt before divers were able to prevent further escape of oil from the wreck. Following the clean-up operations, three claims for alleged anti-pollution expenses have been raised against the Owners of the Alfa 1 and Aigaion by the Greek authorities, by “Environmental Protection Engineering S.A.” (hereinafter “EPE”) and by “Oil Spill Response Alliance Greece Ltd.” (hereinafter “OSRA”), totaling approximately EUR 17 mil. Aigaion strongly believes that for all the aforementioned claims the Greek Courts will ultimately rule that Aigaion has no liability to compensate the above plaintiffs for the reasons set out below.
The IOPC Fund has filed interventions in the legal proceedings which have commenced before the Greek Courts by EPE and OSRA, claiming, among others, that the aforesaid claims are inflated and that Aigaion is liable under the CLC 92 to compensate the respective plaintiffs up to the limitation amount which is provided by CLC 92 (i.e. the equivalent of SDR 4.51 in EUR). The IOPC Fund has supported this position also in its recent report, which has been published in its website.
Aigaion wishes to respond to the allegations of the IOPC Fund contained in this report as follows:
The IOPC Fund summarizes the views of its legal advisor (whom it has not named) as follows: (a) Aigaion is liable for the full limit of liability under the CLC 92, namely SDR 4.51 million; (b) Aigaion’s liability arises in its capacity as an insurer which has issued a blue card, regardless of the fact the the Alfa 1 carried less than 2,000 m.t. of persistent oil; and (c) Aigaion would not be able to defeat the antipollution claims by asserting that there had been a breach of warranty of the relevant policy on the part of the Owners. The IOPC Fund also maintains in its aforesaid report that it has accepted to pay the amount of EUR 12,000,000 to EPE in settlement of its claim.
The above views of the legal advisor of the IOPC Fund are erroneous, something which Aigaion will establish before the Greek Courts. In doing so, Aigaion will submit, among others, a legal opinion of an expert in the field of shipping and the environment, who has acted in most major oil spills worldwide, has many years of experience on a wide spectrum of marine environmental affairs and is considered to be the leading expert in the interpretation of the CLC 92. The conclusion of the independent advice which Aigaion has obtained following the aforesaid first instance judgment of the Piraeus First Instance Court is that, under the circumstances of this incident and insurance, Aigaion has no liability under the CLC 92 to compensate the clean up contractors or the Greek State for their alleged antipollution expenses. In summary, the key issues of the independent legal advice obtained by Aigaion, which rebuts the argumentation of the legal advisor of the IOPC Fund, are summarized in the below points:
- (a) The word “carrying” in Article VII.1 of the CLC 92 cannot be interpreted as meaning “capable of carrying”.
- (b) Article VII of CLC 92 did not require financial security to be maintained in respect of the Alfa 1.
- (c) If financial security was not required, a direct claim cannot be made under the CLC 92 against Aigaion on the ground that it has provided the owner/assured with cover against pollution risks.
- (d) If financial security was not required, a direct claim cannot be made under the CLC 92 against Aigaion on the grounds that it has issued a blue card.
- (e) A claim cannot be founded on alleged misstatements of Aigaion’s blue card independently of Article VII.8 of the CLC 92.
Moreover, regarding the quantum of EPE’s claim, Aigaion strongly disagrees with the evaluation of the IOPC Fund that a settlement thereof in the amount of EUR 12,000,000 is fair, reasonable and justified under the circumstances of this incident, whilst it finds such estimation to be surprising. In particular, the IOPC Fund by the intervention which it has filed before the Greek Courts has already claimed that the amount that should be awarded to EPE for the antipollution and clean-up costs should be EUR 3,489,923, whilst Aigaion has also obtained experts’ reports establishing that EPE’s reasonable costs should not exceed EUR 2,914,113. Finally, it is surprising to note that although IOPC expressed the view that a settlement of EPE’s claim in the amount of EUR 12,000,000 would be fair and reasonable, it has not paid up to date (more than three years after the completion of the clean-up works) any amount at all to EPE, despite the fact that, as it maintains in its website, its aim is “primarily to ensure that prompt and equitable payment of compensation to victims of oil pollution damage can be achieved” and that “in the great majority of cases, all claims have been settled out of Court”.
Having said the above, Aigaion strongly believes that the Greek Courts will rule that Aigaion does not have any liability howsoever, under the CLC 92 or under any other legal regime, to compensate any third party in relation to damages and losses which are related to the pollution caused by the sinking of the Alfa 1 and that EPE’s claim is inflated. In any event, Aigaion has, at all times and under the CLC 92, the option to limit its liability at the equivalent of SDR 4.51 million in EUR and has the necessary reserves and re-insurance to cover such amount, although the likelihood of having to pay it is very distant.