[seadog] ABS Fires Back
- From: "Tom Blanchard" <tomblanchard@xxxxxxxxxxxxxxxx>
- To: "SEADOG" <seadog@xxxxxxxxxxxxx>
- Date: Mon, 30 Jun 2003 16:45:42 -0400
Please recall that a few weeks ago Spain filed suit against the ABS for
their part in the Prestige oil spill. For the kind of $$ they are throwing
around, one can guess its not just the oil spill that is gonna' be messy.
ABS has instituted legal action against the Government of Spain seeking
recovery for any claims made against the classification society for damages
arising from the Prestige casualty. The ABS action is an aggressive response
to the suit filed against the not-for-profit classification society by the
Government of Spain seeking more than $700 million in damages for the
pollution caused by the sinking of the tanker. In a concurrent action, ABS
has responded to the suit filed against it in Texas by the regional Basque
government, and other local administrations, by denying the charges and
alleging that the Basque Government lacked the authority to file the action
and their claims have been subsumed by the national government?s action. In
a similar vein, ABS is initiating legal action in Spain challenging the
authority of the Spanish Government and the Basque provincial government to
have taken such actions in violation of Spanish law and procedure. In its
filing ABS categorically denies the allegations of fault that have been made
by Spain and requests dismissal of the complaint. Further, ABS counterclaims
that the Kingdom of Spain should wholly indemnify the classification society
and/or contribute to payment of any damages that may be assessed in any
judgment, anywhere in the world that may arise out of the casualty. The
Spanish Government has failed to demonstrate any causality between the
actions of ABS, the casualty and the subsequent widespread pollution, said
Robert D. Somerville, President and Chief Executive Officer of ABS. ABS has
stressed the finding of the classification society?s Technical Analysis of
the casualty that unreported damage sustained during lightering operations
in the period between the last classification survey and the casualty as
being the most probable cause of the initial structural failure. The ABS
counterclaim alleges that the extensive pollution that has occurred can be
directly attributed to the Spanish Government?s failure to properly activate
and implement an effective oil spill contingency plan as required by Spanish
law. It also alleges that the Government?s decision to deny the vessel
access to a place of refuge was a clear violation of its legal duty and that
the Government acted recklessly, negligently and grossly negligently in its
response to the casualty. ABS claims that Spain should reasonably have
foreseen that its actions, including assuming control of the vessel,
refusing the request for a place of refuge or to move the vessel to a
location where the cargo could have been off-loaded, and ordering the vessel
away from the coast in deteriorating weather, could cause pollution in the
sovereign territories of the Republic of France, the Kingdom of Spain
itself, and other potentially affected areas which may include Portugal and
the United Kingdom.
ABS contends such wrongful acts of the Kingdom of Spain were the sole
cause
of any damage alleged in the complaint, as well as injuries which may have
occurred elsewhere. These actions, ABS contends, were in direct violation of
the Government?s duties under applicable law, including the UN Convention of
the Law of the Sea (UNCLOS). It is further alleged that the actions taken by
the Spanish Government directly contravened its obligations under the 1989
Salvage Convention, to which Spain is a signatory. The ABS suit also claims
that the action of the Government in delaying access to the vessel by the
professional salvors, the actions of the Spanish Government?s own technical
experts in restarting the vessel?s engines, and the manner in which these
experts navigated the vessel was reckless and negligent. The recently
released Draft Report on the casualty issued by the Transport Committee of
the European Parliament specifically notes that the lack of an appropriate
contingency plan, the failure to provide a place of refuge and the actions
taken by the Spanish authorities resulted in the extensive pollution. The
Parliamentary Report states that the assessment by the Spanish authorities
of the vessel?s condition, the expertise of its crew and the quality of the
inspections the vessel had already undergone do not tally with the testimony
of, in particular, the Smit salvage company, the director of EMSA (the
European Maritime Safety Agency), the insurers and the classification
society. ABS alleges that, by filing this lawsuit, the Spanish Government
has acted in a manner that is contrary to its own Constitution and to the
laws of the Kingdom of Spain. ABS also stresses that, by initiating this
action in US Courts, Spain has waived its sovereign immunity with respect to
any and all claims against it relating to the casualty and is thereby
responsible to respond to all injured parties for the consequences of its
negligent and grossly negligent actions. From the outset, ABS has maintained
that the terrible pollution that has afflicted the lives of so many Spanish
and French coastal communities is directly attributable to the failings of
the Spanish Government, not from the initial damage which, by itself, did
not threaten the vessel, its crew or the environment if there had been an
effective, practical and technically sound response by the coastal State.
ABS contends that it has acted responsibly throughout and has done
everything within its power to mitigate the consequences of the casualty. In
particular, it has cooperated fully with various departments of both the
Spanish and French Governments and will continue to do so. More recently ABS
has been cooperating fully with Repsol and its sub contractors as they
develop plans to recover the remaining oil from the sunken vessel.
Be Safe,
Tom Blanchard
207 833 5947 home/office
207 841 3550 mobile
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