ABS sues Spain
ABS has instituted legal action against the Government of Spain. The classification society is seeking recovery for any claims made against it for damages arising from the Prestige casualty.
ABS terms the action "an aggressive response" to the suit filed against it by the Government of Spain. That suit seeks 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.
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.