Mangouras court ruling could increase risk of politically influenced bail requirements
15 January 2009
THE London P&I Club has warned that the January 8 decision of the European Court of Human Rights (ECtHR) in Strasbourg in the case of Capt Apostolos Mangouras, the master of the Prestige, could seriously increase the risk of bail requirements being influenced by political considerations. It adds that the ECtHR has seemingly failed to understand that the provision of bail for criminal charges falls outside the ordinary scope of P&I cover, and has furthermore sought to justify itself by reference to EU legislation which post-dates the Prestige incident.
Capt Mangouras was arrested immediately upon arrival ashore after battling for days to save the 81,000 dwt tanker Prestige after it broke apart and sank off the coast of Spain in 2002 in an incident which led to extensive pollution following the release into the sea of 70,000 tonnes of fuel oil. He spent 83 days in prison and was only released upon payment of bail amounting to Euro3m.
The Prestige was entered for marine liability insurance coverage with the London P&I Club which, given the exceptional circumstances of the case, and the probability that any legal challenge was likely to take some considerable time, took the unprecedented decision in January 2003 to assist Capt Mangouras in establishing bail on humanitarian grounds. The Club says the level of bail set was so extraordinarily high that there was no prospect of Capt Mangouras or his family being able to raise it from their own resources.
But the ECtHR has now ruled that both the length of Capt Mangourass detention and the amount of bail demanded were not excessive in the circumstances of the case, a decision which has given rise to serious concern within the shipping industry generally. The court found that the level of bail imposed was not disproportionate to the circumstances of the case, including the seriousness of the consequences of the incident, and took sufficient account of Capt Mangourass personal circumstances. It also concluded that the amount of time which Capt Mangouras spent in prison was short, compared to comparable cases.
Stephen Roberts, Claims Director with A Bilbrough & Co, Managers of the London P&I Club, says, The concern is that the ECtHR was influenced heavily by the consequences of the incident rather than by the actual conduct and means of Capt Mangouras, who has received strong support for his actions from all over the world.
And to that extent, the decision also highlights the basis for the concerns currently being expressed by leading international shipping bodies, including Intertanko, that the application of the EU Directive on Ship Source pollution must be proportionate to the degree of personal fault on the part of the individual responsible for causing pollution, and not focused on the pollution and its consequences.
Furthermore, if the decision stands, it will seriously increase the risk of the determination of bail requirements being influenced by political considerations, without any account being taken of the means of the individual.
The London Club also says that general industry dissatisfaction with the judgment is compounded by the ECtHRs reference to the provision of bail as the result of the application of the legal contractual relationship between the owner and the insurer. Stephen Roberts says, That comment suggests that the ECtHR has failed to understand that the provision of bail for criminal charges falls outside the ordinary scope of P&I insurance and that the decision by the London Club to provide bail for humanitarian reasons was both exceptional and unprecedented. It also tends to imply that the court sees bail as something penal rather than, as it should be, something which is designed to secure the accuseds appearance to face charges.
Capt Mangouras is understood to be actively considering an appeal against the ECtHR judgment.
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N.B. A copy of the English translation of the judgment is attached.