When a slick is detected behind a ship, two parallel sets of proceedings are triggered, and they do not follow the same logic. One, civil and treaty-based, organises the compensation of victims and channels liability onto the registered owner. The other, criminal and national, looks for a culprit and does not stop at the master. It is the second that shipping companies underestimate, because it escapes the classic liability covers, because it reaches amounts out of all proportion to the ecological damage recorded, and because it climbs the chain of decision up to the head office. The French Environmental Code lays down its regime in Articles L. 218-10 et seq. Here are the six points that determine, in practice, who is prosecuted and what is at stake.
1. The status of master and the notion of discharge are not defined freely
It all begins with two definitions whose scope is wider than it seems. Article L. 218-10 of the Environmental Code, in the wording deriving from Ordinance no. 2015-1736 of 24 December 2015, specifies that the term master designates the master or the person in charge on board a ship, and that the person in charge of operations on board a fixed or floating platform and the person in charge on board an inland vessel or floating craft are assimilated to him. The head of a platform is therefore subject to the same enforcement regime as the commander of a tanker. The same article refers, for the definition of discharges, to point 3 of Article 2 of the MARPOL Convention. National law has therefore not built its own notion of discharge: it imports that of the international text, which makes reading the applicable annex indispensable from the first hour of the file.
2. A deliberate discharge is punished by a fine of one hundred thousand euros, and the scope has been extended to polar waters
Article L. 218-11, in the wording deriving from Law no. 2021-1104 of 22 August 2021 applicable since 25 August 2021, punishes with a fine of EUR 100,000 any master guilty of a discharge of a polluting substance in breach of Regulations 15 and 34 of MARPOL Annex I, on the control of oil discharges, or of Regulation 13 of Annex II, on the control of residues of noxious liquid substances carried in bulk. The same law added a second offence, carrying an identical penalty, targeting the discharge of oil or noxious liquid substances in breach of the International Code for Ships Operating in Polar Waters. The extension is not theoretical for shipping companies engaged on Arctic routes, and it requires checking case by case which rule of the Polar Code applies to the ship and to its area of operation.
3. For certain ships, the penalty reaches fifteen million euros and ten years’ imprisonment
This is the most spectacular provision of the framework, and one of the least known. Article L. 218-12, in the wording deriving from Ordinance no. 2021-267 of 10 March 2021 in force since 18 March 2021, raises the penalties for the offences provided for in the first two paragraphs of Article L. 218-11 to ten years’ imprisonment and a fine of EUR 15 million for any master of a tanker of a gross tonnage of less than 150 tons, or of any other ship of a gross tonnage of less than 400 tons whose propulsion machinery has an installed power of more than 150 kilowatts. The threshold triggering the aggravation is therefore technical, drawn from tonnage and installed power, and not from the seriousness of the pollution. A small coaster may fall under the highest ceiling when a large container ship does not. The exact characterisation of the ship is, on that account, a defence in its own right.
4. Carelessness is enough, and the penalty depends on the category of ship
It is not necessary to establish an intention to pollute. Article L. 218-19 punishes with a fine of EUR 4,000 any master who causes a discharge of a polluting substance through carelessness, negligence or failure to observe laws and regulations. The same penalty applies to anyone who, in the same conditions, causes a maritime casualty, within the meaning of the Convention of 29 November 1969 relating to intervention on the high seas in cases of oil pollution casualties, or who fails to take the measures necessary to avoid it, where that casualty has caused pollution of the waters. The base amount is modest, but the text provides for a sharp progression according to the category of ship within the meaning of Article L. 218-12, up to EUR 400,000 then EUR 800,000. A watchkeeping negligence may therefore cost one hundred times the rate displayed in the first paragraph.
5. Prosecution does not stop at the master, it climbs to the shipping company
This is the point that moves the file from the ship to the head office. Article L. 218-18 makes the penalties of the subsection applicable either to the owner, or to the operator or their legal representative or de facto manager if a legal person, or to any person other than the master exercising, in law or in fact, a power of control or direction in the management or operation of the ship, where that person was at the origin of the discharge or failed to take the measures necessary to avoid it. The wording is broad enough to reach the technical manager as well as whoever gives the operational instructions. Article L. 218-24 adds the corporate dimension: legal persons found criminally liable under the conditions of Article 121-2 of the Criminal Code incur, in addition to the fine under the terms of Article 131-38, the penalty provided for in 9° of Article 131-39. Internal procedures for managing residues then become defence exhibits.
6. Geography governs the penalty incurred
The location of the discharge does not only change jurisdiction, it changes the sanction. Article L. 218-22 provides that where an offence provided for in Articles L. 218-11 to L. 218-19 was committed beyond the territorial sea, only fines may be imposed. The imprisonment incurred under Article L. 218-12 therefore disappears as soon as the discharge occurs offshore, which makes the exact position of the ship at the time of the facts one of the major evidential issues of the file, often settled by satellite imagery and automatic identification system data. A neighbouring logic governs dumping, dealt with in a separate section: Article L. 218-48, deriving from the same law of 22 August 2021, punishes with two years’ imprisonment and a fine of EUR 100,000 breaches of Articles L. 218-43 and L. 218-44, specifying that in the economic zone or the ecological protection zone, only fines may be imposed, pursuant to the Montego Bay Convention.
These six points map the enforcement side of a pollution casualty, the one played out before the criminal court while the compensation side is settled elsewhere. The firm’s practical guide on marine pollution details the reflexes of the first hours, the conduct to adopt during an inspection and the interplay between the two proceedings. Get the marine pollution guide. For an ongoing matter, the page devoted to maritime law sets out the firm’s working method and the contact form allows you to describe a specific situation.
On this specific point, see our marine pollution lawyer page.