Sea Empress Prosecution - the case against the Milford Haven Port Authority

The facts

On 15th February 1996, the crude oil carrier, "Sea Empress", struck rocks at St. Ann's Head whilst entering Milford Haven Port (a public trust port) spilling more than 72,000 tonnes of oil. It was the third largest
tanker spill in British waters after the Torrey Canyon (120,000 tonnes spilled off Cornwall in 1967) and the Braer (86,000 tonnes off Shetland in 1993). Marine scientists estimate that 25,000 seabirds perished, including large numbers of common scoters, guillemots and razorbills. Up to 90 per cent of limpets were killed on heavily polluted beaches such as West Angle Bay. Although the overall environmental impact is generally accepted as being less than feared, recovery is likely to take several years in the worst-affected sites.

The indictment

The case against the Milford Haven Port Authority was heard at Cardiff Crown Court on 15th January 1999 before the Hon. Mr Justice David Steel. The record fine of £4 million plus £825,000 costs was awarded against the Port Authority in an indictment brought under Section 85(1) of the Water Resources Act 1991. The applicability of Section 85 to pollution from a maritime source (originally challenged) was not questioned by the Defendants.

The relevant part of Section 85 is as follows:

"a person contravenes this section if he causes…any…
polluting matter to enter any controlled waters".

It was agreed by both parties that waters at Milford Haven and the South West Wales Coast are "controlled waters" for the purposes of Section 85 and the Defendants pleaded guilty.

Section 85 is a strict liability offence recently considered by the House of Lords in Empress Car Company (Abertillery) Limited -v- National Rivers Authority (1998). Following this case, Hon. Mr Justice David Steel stated the following:

• "if the charge is "causing", the prosecution must prove that the pollution was caused by something which the defendants did, rather than merely failed to prevent;
• thus there must have been some positive act by the defendants. But that positive act need not have been the immediate cause of the escape. The only question was whether something which the defendant had done, whether immediately or antecedently, had caused the pollution;
• thus, for instance, maintaining a tank of diesel is doing something; if diesel escapes, it solely remains to consider whether the necessary causal connection is established;
• the only question which has to be asked for the purposes of Section 85(1) is "did the Defendant cause the pollution?" The fact that for different purposes or even for the same purpose one could also say that someone or something else caused the pollution is not inconsistent with the Defendant having caused it;
• if the Defendant did something which produced a situation in which the polluting matter could escape but a necessary condition of the actual escape which happened was also the act of a third party, the court should consider whether that act should be regarded as a normal fact of life or something extraordinary. If it was, in the general run of things, a matter of ordinary occurrences, it will not negative the causal effect of the Defendant's act, even if it was not foreseeable that it would happen to that particular defendant or take that particular form;
• the distinction between ordinary and extraordinary is one of fact and degree to which the court must apply its common sense.

The Hon. Mr Justice David Steel further opined that "the Port Authority did something which caused pollution", namely:

• "the Authority operated the port;
• it was compulsory for inward bound vessels such as the Sea Empress to carry a pilot;
• the Port Authority trained and supervised the pilots;
• a pilot was allocated to the Sea Empress in accordance with the rota system;
• the grounding, whilst attributable to the negligent navigation of the pilot, was a normal fact of life not something extraordinary;
• the subsequent loss of further crude oil and fuel oil was attributable to bad weather and the general uncertainties of any salvage operation both of which factors are normal not extraordinary incidents of life."

Level of the fine

In setting the level of the fine, the Hon. Mr Justice David Steel called upon the recent Court of Appeal (Criminal Division) ruling in R -v- F Howe & Son (Engineers) Limited (1998) concerning guidance on level of fines under the Health and Safety at Work etc. Act 1974, together with the extent of the environmental impact and the financial means of Milford Haven Port Authority.

Following the Howe case, the record level of fine imposed on the Milford Haven Port Authority was based both on the inadequate training and inexperience of a port authority pilot who had never before handled such a large vessel close to low tide (especially where it is compulsory for ship owners and masters to engage the services of a pilot). With regard to the extent of the environmental impact of the pollution, the following were taken into account. 40% of the oil evaporated rapidly. Of the remaining oil:

• about 50% was dispersed at sea using chemical dispersant sprayed from aircraft;
• a further 1 or 2% was recovered from the sea surface using recovery vessels;
• about 5 to 7% was washed ashore as emulsion along more than 200km of coastline between Cardigan Bay and Gower.

At the height of the response, more than 50 vessels, 19 aircraft and 25 organisations were directly involved at a total cost of at least £60 million, in addition to which there was an estimated £46 million loss to the tourism industry and £10 million loss to the commercial fishing industry.

The environmental impact was, although less severe than feared, probably due to the efficient clean-up response, although mitigated by the type of oil involved and weather conditions which led to dispersal.

When the financial means of the Milford Haven Port Authority were taken into account (approximately £30 million) the fine was set at £4 million, in itself a record fine. This was qualified, however, by the Hon.
Mr Justice David Steel's statement that if the Port Authority had had the vast resources of a major oil or manufacturing company it would have been far higher.

It is understood that the level of the fine is under appeal and no doubt many companies will be watching the outcome with anticipation!

Pamela Castle