Early interaction with authorities pays long term dividends in defeating class actions brought by tourism and fishing Lobby Groups.
The 2005 case reported below is one the many such instances where early use of the experience and contacts available from members of the Senior Claims Directors (SCD) team assisted in the favourable result achieved. The early inter-action between the resident SCDs in the Club’s Regional offices in the US and Greece enabled prompt co-operation between the ship operators and local and central authorities. In the short term this assisted in achieving a quick end, and economically priced pollution clean-up. Subsequently the early co-operation was instrumental in defeating a Class action brought in late 2010 by fishing cooperatives, tourism interests, and environmental lobbies against both the ship operators, and the Colombian Ministry of the Environment.
This case demonstrates the benefit we have achieved from the regional deployment of members of the SCD Team. It highlights the importance of having experienced senior people on site who are able to facilitate a cooperative dialogue between authorities, and ship operators where politically, and environmentally sensitive accidents need to be properly addressed. It also highlights the ability of the team, through a regional presence to rapidly co-ordinate response plans and actions between government environmental agencies, the Marine authorities, and the on-site technical advisors and the ship operators themselves in different locations.
This incident involved a tanker which grounded on a coral reef, marked solely on local charts, when making a starboard turn to exit the Canal Colonial after loading a cargo of No. 6 fuel oil at the Mamonal Oil terminal. The ship’s hull was perforated with three longitudinal cuts, one of four metres, one only 30 cms and one of 8 metres length in way of Nos. 1 and 2 ballast tanks. The impact of the grounding had caused a crack to occur at the bulkhead interface between No. 1 portside ballast tank and No. 1 centre tank allowing an escape of No. 6 fuel into the sea, and also into the ship’s forepeak. The immediate impact of the spill was substantially minimised by rapid transfer of cargo into No. 4 cargo tank but about 300 tons was spilt into the sea, and about 40 tons was trapped in the ship’s forepeak. An additional quantity of about 30 tons remained afloat on the water/oil interface in the side ballast tanks following the ingress of water in the ship’s spaces.
The grounding occurred on 20th April 2005, and by 5th June 2005 the ship was on her way to conduct permanent repairs. During the course of that time the ship had been assisted from Mamonal to Cartagena, transferred her cargo to another tanker which had taken the cargo to ultimate discharge at St Eustatius, cleaned her internal spaces and carried out temporary repair. Agreement on the clean-up operation, and securing the cost had been finalised and an on-site monitoring and supervision programme agreed with the Colombian Ministry of the environment. This rapid response had been facilitated by having members of the SCD team located in America and Greece. They were able to discuss with the decision makers the plans and proposals being taken and ensure that an agreed programme was reached.
On 11th August 2010 the local shipping agent who had assisted the ship in 2005 was served with a law suit brought by 485 parties resident in the archipelagos of Rosario and Baru. The activities included artisan fishing, tourism, submarine diving, and ecological guided tours. The claim brought was for amounts equivalent to $4.5 million in respect of claims for actual contemporaneous losses incurred because of business interruption, and for ensuing losses amounting to the equivalent of $21 million in respect of lost income resulting from the oil spill. The action was brought against the ship owner and the ship captain. It also cited as defendants Ecopetrol, the operator of the Mamonal terminal, the Colombian ministry of the Environment and Cardique, and the Local environmental agency. Security for the claims was demanded. Because of the close co-operation that had allowed such a satisfactory result to the incident itself the existing contacts allowed rapid discussion and agreement that all parties would be represented by the Club’s legal correspondent in Colombia. It also assisted in a very prompt decision being made that security was not appropriate as these claims all fell within the scope of the Civil Liability Convention and the Ship’s CLC certificate made security unnecessary. At a technical level Invermar, the Colombian national scientific and environment agency, and ITOPF worked together to produce a joint report.
The case went to trial and was dismissed at both first instance and on appeal which culminated in December 2015.
Tony Fielder is a Senior Claims Directors for the UK Club. The Senior Claims Directors provide support to the London Syndicates and the Regional Office claims teams. They are able to use their experience and their specialist knowledge to provide advice and generally assist the claims handlers when major claims or difficult problems occur. Through twice weekly meetings and ad hoc discussions, views are readily exchanged and communicated throughout the claims handling office network. Their efforts, including casualty response, are coordinated through the Regional Directors and the Claims Director on the Senior Management Team.