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Capri Marine Ltd. v. Chief State Prosecutor. Case No. 2004:26
Published online by Cambridge University Press: 27 February 2017
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- Copyright © American Society of International Law 2005
References
1 Since the three decisions are identical, only one of them, Capri Marine Ltd. v. Chief State Prosecutor, Case No. 2004:26, Nytt Juridiskt Arkiv, Avd. I, Rättsfall från Högsta Domstolen (Sup. Ct. May 11, 2004) [hereinafter Supreme Court judgment], is reported in the collection of the cases decided by the Swedish Supreme Court in 2004.
2 Dec. 10, 1982, 1833 UNTS 397 (1983).
3 The MOU is available online at <http://www.parismou.org/ParisMOU/Organisation/Memorandum+of+Understanding/default.aspx>.
4 The White Star and Alambra cases were decided the same day by the Stockholm court of first instance (July 31, 2002) and also, three months later, by the Svea court of appeal (October 24, 2002).
5 Lag om åtgärder mot förorening från fartyg [Act on Measures Against Vessel–Source Pollution], SFS [Collection of Swedish Legislative Acts] 1980:424 [hereinafter Water Pollution Act]. According to this act, the fee may be charged only if the pollution is not negligible. The degree of the seriousness of the pollution and the amount of pollution fee are decided according to the size of die discharge (from 50 to over 501,000 liters of oil) and gross weight of the vessel in tons (under 3,000 to over 50,001). The amount of the fee ranges between approximately 35,000 kronor (roughly U.S.$5,000 at the current exchange rate) to approximately 3,500,000 kronor (roughly U.S.$500,000). Water Pollution Act, ch. 8 §3.
6 12 ILM 1319(1973).
7 17 ILM 546 (1978).
8 See Supreme Court judgment, supra note 1, at 3.
9 Lag om Sveriges ekonomiska zon [Act on Sweden’s Economic Zone], SFS 1992:1140. For an analysis of the contents of this act, see Mahmoudi, Said, Sweden’s Economic Zone Act, 8 Int’l J Marine & Coastal L. 524 (1993)CrossRefGoogle Scholar.
10 Prop. [Government Bill] 1992/93:54, at 59 [hereinafter 1992 Bill]. A general review of these provisions took place at the end of the 1990s, after Sweden’s ratification of the LOS Convention in 1996. This review led to significant revisions of the Water Pollution Act, see Prop. 2000/01:139. Prior to February 1, 2002, Swedish authorities lacked penal jurisdiction with respect to crimes committed by foreign vessels in Sweden’s EEZ, see Lag om begränsning av tillämpningen av svensk lag vad gäller brott begångna på utländska fartyg [Act on Limitation on the Application of the Swedish Law with Respect to Certain Crimes Committed by Foreign Vessels], SFS 1996:517. As of that date, however, Swedish jurisdiction was extended by chapter 10, sections 10–11, of the Water Pollution Act to cover such crimes, with certain limitations that reflect relevant provisions of the LOS Convention.
11 See 1992 bill, supra note 10.
12 See Capri Marine Ltd. v. Prosecution Authority in Stockholm, Case No. B 3469-01, at 3 (Stockholms tingsrätt July 31, 2002). The February 2002 amendments of the Water Pollution Act made the wording of certain provisions more elaborate and precise. A substantial change in the contents of chapter 6, section 2, of the act provides for inspecting a foreign vessel in the Swedish territorial sea or EEZ if suspected of unlawfully discharging oil in the EEZ. Such inspection, which was previously limited to the cases of damage to the coastline or related interests of Sweden or to any resources of the Swedish territorial sea or EEZ, is now possible even for significant pollution of the marine environment.
13 Article 220(6) provides:
Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws.
14 Submission of Capri Marine Ltd. at 5 (Nov. 12, 2002), Supreme Court judgment, supra note 1; submission of White Star Shipping Ltd. at para. 4.3 (Nov. 13, 2002), Supreme Court judgment, supra; Submission of Wind Spirit Marine Co. at para. 4.3 (fan. 31, 2003), Supreme Court judgment, supra. In support of this position, the submissions argue that the LOS Convention’s mention of “judicial proceedings,” as in Article 73 concerning coastal states’ sovereign right to explore, conserve, and manage living natural resources of the EEZ, indicates that the Convention makes a distinction between “proceedings” in general and “judicial proceedings” stricto sensu.
15 Submission of Capri Marine Ltd. at 6. The shipping companies grounded this conclusion on an explanation that was given in the government bill, Prop. 2000/01:139, at 75, that was the basis for the 2002 amendments to the Water Pollution Act. In that bill, the government explained that one portion of the proposed amendments— which became chapter 6, section 2(a), of the Water Pollution Act.—reflected the contents of Article 220(3), (5), and (6) of the LOS Convention.
16 Submission of White Star Shipping Ltd. at para. 4.8; Submission of Wind Spirit Marine Co. at para. 4.8.
17 Submission of Capri Marine Ltd. at 7.
18 Submission of Capri Marine Ltd. at 8; Submission of White Star Shipping Ltd. at para. 5.8; Submission of Wind Spirit Marine Co. at para. 5.8.
19 Submissions of the Chief State Prosecutor (June 30 & Oct. 1, 2003), Supreme Court judgment, supra note 1. Although the statement of the chief state prosecutor is correct in principle, the Court chose to disregard it and to treat relevant provisions of the LOS Convention in some detail. The Court may well have been influenced here by the requirements of chapter 1, section 5, of the Water Pollution Act, which stipulates: “Regulations adopted according to this act shall not contradict the provisions of international agreements that are binding on Sweden.”
20 Submission of the Chief State Prosecutor at 4 (June 30, 2003). The Kalmar court of first instance similarly argued that the Water Pollution Act regulated only the conditions for taking coercive measures and that it does not contain any requirement for inspection or detention of the vessel in order to be able to charge a water pollution fee. Wind Spirit Marine Co. v. District Prosecutor, Case No. B 2244–01, at 3 (Kalmar tingsrätt May 27, 2002).
21 Submission of the Chief State Prosecutor at 5 (June 30, 2003).
22 See supra note 1.
23 The Court refers here to the explanations in the government bills relating to the original Water Pollution Act, Prop. 1982/83:87, at 32, and its amendments, Prop. 1995/96:140, at 164.
24 Supreme Court judgment, supra note 1, at 5.
25 Article 218(4) of the LOS Convention concerning a port state’s jurisdiction with respect to violations within another coastal state’s EEZ is, in the Court’s view, evidence of this fact and indicates the primacy of the coastal state’s jurisdiction over that of the port state. See Supreme Court judgment, supra note 1, at 8.
26 Supreme Court judgment, supra note 1, at 8.
27 Boyle, Alan E., Marine Pollution Under the Law of the Sea Convention, 79 AJIL 364 (1985)Google Scholar.
28 Attard, David, The Exclusive Economic Zone in International Law 103 (1987)Google Scholar; Francisco, Orrego Vicuna, The Exclusive Economic Zone: Regime and Legal Nature Under International Law 87 (1989)Google Scholar.
29 Molenaar argues that there is a need for physical inspection since the existence of “clear objective evidence” according to Article 220(6) is a condition for instituting a proceeding, and such evidence can be obtained only through physical inspection. Erik Jaap Molenaar, Coastal State Jurisdiction Over Vessel–Source Pollution 385 (1998).
30 In the case of Sweden, discharge of as little as fifty liters of oil can incur liability, though such discharges rarely result in major damage. See supra note 5.
31 One of the companies, White Star Shipping, claimed in its submission that it had checked with the Maritime Directorate in Oslo, Norway, and that the directorate had received no notification. Submission of White Star Shipping Ltd. at para. 4.8.
32 Kwiatkowska, Barbara, The 200 Mile Exclusive Economic Zone in the New Law of the Sea 184 (1989)Google Scholar.