CASE OF BRUDNICKA AND OTHERS v. POLAND
Preliminary objections rejected (non-exhaustion of domestic remedies, victim);Violation of Art. 6-1;Non-pecuniary damage - financial award
Georg Ress
8. The applicants are relatives of sailors who lost their lives in a shipwreck. 9. On 14 January 1993 the vessel Jan Heweliusz sank in the Baltic Sea. It belonged to the company Polskie Linie Oceaniczne, whose registered office is in Gdynia, and was operated by the company Euroafrica, with its registered office in Szczecin. Of the 35 passengers and 29 crew members on board, 55 died in the shipwreck and 9 survived. 10. Several commissions of inquiry were set up to establish the cause of the shipwreck. The commission set up by the Prime Minister suspended its inquiry in March 1993 without producing a report. The commission set up by the Ministry of Transport and Maritime Affairs submitted a report in April 1993 in which it found that the shipwreck had been due to force majeure. The special commission set up within the National Labour Inspectorate concluded in May 1993 that the owner of the vessel and the crew were jointly responsible. 11. The Maritime Chamber attached to the Szczecin Regional Court (Izba Morska przy Sądzie Wojewódzkim) instituted proceedings seeking to establish the cause of the shipwreck. The relatives of the crew members who had died took part in the proceedings. 12. On 11 January 1994 the Maritime Chamber delivered its decision, attributing liability to the ship's captain, its technical team, the Polish Shipping Registry, which had inspected the vessel before the disaster, and the Polish rescue services. 13. On 18 November 1994 the Maritime Appeals Chamber of the Gdańsk Regional Court (Odwoławcza Izba Morska przy Sądzie Wojewódzkim), sitting in Gdynia, set aside the decision of 11 January 1994 and referred the case to the Maritime Chamber for a fresh examination. 14. The Gdańsk Maritime Chamber, sitting in Gdynia, examined the case between 20 March 1995 and 9 February 1996. On 23 February 1996 it gave a decision in which it held that the crew had been partly liable, that the vessel's operator had been at fault for failing to undertake the necessary repair work, and that the natural elements had also played a part. 15. The operator, the ship's owner, the representative of the Ministry of Transport and Maritime Affairs and the other parties to the proceedings appealed. In a decision delivered on 26 January 1999 and served on the parties on 19 November 1999, the Gdańsk Maritime Appeals Chamber partly upheld the finding of liability with regard to the operator. It also upheld the finding that certain acts of negligence on the part of the crew, in particular the captain and the chief officer, had contributed to the disaster, as had the fact that the rescue operation had not been properly coordinated. The relevant passages of the decision read as follows: page 2 “The most likely cause of the capsize of the car and train ferry the Jan Heweliusz and of the death by drowning and hypothermia of 27 passengers and 18 crew members and the disappearance of 8 passengers and 2 crew members was: ... the fact that the ferry turned into the wind while unevenly ballasted (towards the port side), resulting in the shifting of the ballast towards the port side; violent gusts of wind on that side; the shifting of the vehicles' loads and the vehicles themselves to the port side; the discharge of bilge water to the outside on the port side of the ferry.” page 4 “The Jan Heweliusz left the port of Świnoujście at 11.35 p.m. on 13 January 1993, bound for the port of Ystad, in an unseaworthy condition, as the safety requirements were not met in the following respects: 1. measures to stabilise the vessel in the event of an accident; 2. measures to ensure that the rear door was watertight; 3. the securing of the vehicles to the deck in accordance with maritime best practice.” page 6 “Irregularities have been found in the conduct of: 1. the operator of the Jan Heweiusz, Euroafrica Shipping Lines, a limited liability company based in Szczecin, which allowed the ferry to be operated while in an unseaworthy condition owing to the damage sustained to the door on 10 January 1993 in Ystad, following which its class had been suspended and the safety certificate had ceased to be valid, in that it (a) omitted to declare the ferry to the Szczecin Maritime Bureau for an interim inspection and to the Polish Shipping Registry for immediate inspection; (b) failed to take the agreed action to repair the rear door in the proper manner; 2. the captain of the above-mentioned ferry, a Master Mariner ... who, on 13 January 1993, left the port of Świnoujście, bound for the port of Ystad, while the ferry was in an unseaworthy condition, in that he (a) omitted to declare the ferry to the Consulate in Malmö and later to the Szczecin Maritime Bureau for an interim inspection following the damage sustained to the rear door on 10 January 1993 in Ystad, the suspension of class after the accident and the cessation of validity of the ship's safety certificate; (b) allowed the vessel to depart without the vehicles being secured to the deck, in spite of the gale warning that had been issued; 3. the chief officer, a Master Mariner ... who, on 13 January 1993, before the ferry left the port of Świnoujście bound for Ystad, and despite the issuing of a gale warning, did not supervise the securing of the vehicles to the deck before the ferry left port.” page 8 “The lack of effectiveness of the rescue operation was the result of ... 3. the clothing of the passengers and some crew members, which did not protect them against hypothermia; 4. the inadequate training of the crew in the use of the life-saving equipment.” page 109 “ ... In the Chamber's view, the evidence cited demonstrates that ... (ii) the cargo was not secured before the vessel left dock despite the gale warning issued by the meteorological office...” pages 129-30 “... The causes of the vessel's having turned into the wind can only be established with a high degree of probability; the possibility that the persons steering the ferry failed to observe the rules cannot be discounted ...” page 162 “... The rescue operation revealed that, in a situation of the utmost danger, some members of the crew did not know how to use the lifejackets ...” 16. The maritime chambers were introduced into the Polish legal system by an Act of 18 March 1925 which provided for the establishment of chambers at two levels of jurisdiction, attached to the courts and with jurisdiction “in cases relating to maritime incidents and accidents at sea”. The maritime chambers were considered as maritime administrative bodies. 17. The Maritime Chambers Act of 1 December 1961 incorporated most of the rules laid down in the 1925 Act and transferred powers to them which had previously been vested in the courts. Its relevant provisions read: “The maritime chambers shall be composed of a president, one or more vicepresidents and lay members.” “(1) The president and vicepresident shall be appointed and removed from office by the Minister of Justice, in agreement with the Minister of Transport and Maritime Affairs, from among the judges of the ordinary courts who have knowledge of the maritime issues dealt with in the cases before the maritime chambers. (2) The other members [pracownicy] of the maritime chambers shall be recruited and dismissed by the president of the chamber concerned.” “(1) The presidents and vicepresidents of the maritime chambers shall retain their judicial posts and, unless the law stipulates otherwise, the rights and duties set out in the legislation applicable to judges. (2) The status of the other members of the maritime chambers shall be governed by the legislation governing officials of State administrative bodies.” “The Minister of Justice, in agreement with the Minister of Transport and Maritime Affairs, shall determine, by decree, the extent of the participation of the presidents and vicepresidents of the maritime chambers in the activities of the courts, taking account of the extent of their involvement in the maritime chambers and the need to have working professional judges involved in the administration of justice.” “Subject to contrary provisions of the present Act, the provisions of the Code of Criminal Procedure shall apply to proceedings in cases before the maritime chambers concerning accidents at sea.” “Once a case has been brought before the maritime chamber, it shall be investigated by the president or the vicepresident either directly or through the intermediary of the harbourmaster's office.” “The investigation shall be aimed at establishing the sequence of events and the causes and circumstances of the accident by gathering the necessary information and preserving the evidence.” “After the decision has been signed by the members of the bench who decided the case, the president shall deliver the decision, citing the main grounds. The grounds of the decision shall then be set down in writing ...” “The decision and the reasons shall be communicated to the Minister of Transport and Maritime Affairs, his or her deputy, the maritime department concerned and the individuals concerned. In the cases referred to in section 15(4), they shall also be communicated to the Labour Inspectorate.” 18. The regulations adopted by the Minister of Transport and Maritime Affairs on 12 November 1996 incorporated the rules set down in the 1961 Act. However, no express provisions were laid down concerning appeals to the maritime appeals chambers against decisions given by the maritime chambers at first instance. The chief task of the maritime chambers remains the determination of cases concerning maritime incidents and accidents at sea. Under the terms of the 1996 regulations, in cases relating to accidents at sea not governed by the 1961 Act, the rules of ordinary law and the Code of Criminal Procedure apply. 19. On 12 July 2001 a preliminary question was referred to the Supreme Court in a different case from the one before the Court, concerning the possibility of an appeal on points of law against a decision given by a maritime appeals chamber. The Supreme Court replied that no such possibility existed (IIICZP 22/01 OSNC 2001, no. 158). It observed that there had been a longrunning debate among Polish commentators on the legal status of the maritime chambers, which were sometimes regarded as administrative bodies and sometimes as judicial bodies. 20. On 18 December 2002 the Government communicated to the Court a bill on maritime chambers, indicating that it would be put before the Council of Ministers for approval in early 2003, before being tabled in the Sejm. The Act of 5 March 2004 was published in the Official Gazette on 14 April 2004. It provides a detailed definition of maritime disasters, listing in detail the conduct and facts falling within the remit of the maritime chambers. The only possibility of appeal is with the Gdańsk Court of Appeal against decisions of the maritime appeals chamber withdrawing navigation rights. Finally, it includes a new chapter on the procedure for enforcing decisions of the maritime chambers concerning the withdrawal of navigation rights. However, the new legislation has not made provision for an appeal on points of law against decisions of the maritime appeals chambers and has not amended the procedure for appointing and removing from office the presidents and vicepresidents of the maritime chambers.