EDITORIAL | Justice prevails in latest Estonia litigation

Unbelievably, almost exactly twenty-five years since the Estonian flagged Ro-Pax ferry Estonia sank in a Baltic storm, some members of the legal profession have again been trying to milk the tragedy for fees.

The latest failed class action in a French court involved some 1,116 plaintiffs suing for compensation from the ship’s German builder Meyer Werft and the French classification society Bureau Veritas. This “double dipping” occurred after survivors and relatives of the deceased received substantial compensation shortly after the Estonia sank in September 1994.This was facilitated at the time by the ship’s owner’s P&I insurers, Skuld, at a cost of US$135 million.

The French court, sitting in the Parisian suburb of Nanterre on July 19, very wisely came to the conclusion that the plaintiff’s lawyers had failed to prove, “the existence of a gross or intentional fault attributable to the firm Bureau Veritas and/or Meyer Werft.” It can only be hoped that the lawyers involved in this futile case were working on a “no cure, no fee” basis.

Even as a beneficiary of one, I cannot usually see the sense in class actions. From my experience and observation, they more often cost rather than benefit the plaintiffs. In many cases they are actually persuaded to shoot themselves in the foot financially. This case appears to be yet another example of that.

Of course, the real fault behind this wasteful and probably traumatic lawsuit lies with the disgraceful “whitewash” by the Estonian, Finnish and Swedish governments’ Joint Accident Investigation Commission (JAIC).

Despite all the evidence pointing to the appalling human errors made by the ship’s master in proceeding at speed in the face of a severe storm and against warnings from his crewmen and his instruments, the JAIC apportioned most of the blame to the builder and classification society. In my opinion and the opinion of many others, no blame should have been accorded to Meyer Werft and Bureau Veritas. The master and, to a lesser extent, the owner should have shouldered all the blame. That, regrettably, was politically unacceptable.

Obviously, as a conventional, monohull Ro-Pax ferry of its era, Estonia suffered serious conceptual faults. They were well known and should have been allowed for by the owner and the master in their operation of the ship. They were most definitely not the fault of Meyer Werft as the ship’s designer and builder. Nor were they in any way the fault of Bureau Veritas. Both those very reputable organisations had created and classed the ship precisely to the then extant International Maritime Organisation and local regulations.

The findings of the JAIC appeared to be strongly prejudiced against the German shipbuilder and the French classification society and very much in favour of the deceased master and local inspection and rescue authorities. Many experts, other than the carefully chosen expert witnesses who testified before the inquiry, still hold very strong opposing views.

I am firmly of the view that there were many other causal factors than just the allegedly badly designed and constructed bow door and visor. They, incidentally, fully complied with the prevailing regulations when built, passed survey and numerous subsequent inspections. The whole conventional monohull Ro-Pax ferry concept could equally be blamed.

Apart from starkly illustrating the conceptual dangers of conventional monohull Ro-Pax ferries, the Estonia accident was a classic example of human errors involving a chain of design, construction, regulatory, management, seamanship, seaworthiness, search and rescue, and investigatory factors. Perhaps, in an endeavour to discourage further such futile litigation, the three governments involved with the JAIC should take another more objective look at its findings.