Gerechtshof Den Haag, 29-01-2021, ECLI:NL:GHDHA:2021:1825, 200.126.804/01 200.126.834/01
Gerechtshof Den Haag, 29-01-2021, ECLI:NL:GHDHA:2021:1825, 200.126.804/01 200.126.834/01
Gegevens
- Instantie
- Gerechtshof Den Haag
- Datum uitspraak
- 29 januari 2021
- Datum publicatie
- 3 oktober 2021
- ECLI
- ECLI:NL:GHDHA:2021:1825
- Zaaknummer
- 200.126.804/01 200.126.834/01
Inhoudsindicatie
English translation of ECLI:NL:GHDHA:2021:132
International company law/liability law
Shell Nigeria is liable according to Nigerian Law for damage caused by an oil leak in an oil pipeline in 2005 near the village of Oruma in Nigeria. Sabotage not proven. The oil supply to the oil pipeline would have been shut down sooner if a Leak Detection System (LDS) would have been in place. The Nigerian subsidiary and the parent company are ordered to install such a LDS. The parent company has breached a duty of care (foreign direct liability claim). Right to a clean living environment. No order for further remediation. Possible residual pollution may constitute a basis for compensation.
Uitspraak
Civil law division
Date of ruling : 29 January 2021
Case numbers : 200.126.804 (case a) + 200.126.834 (case b)
Case/ cause list number of court : C/09/365498 / HA ZA 10-1677 (case a) +
C/09/330891 / HA ZA 09-0579 (case b) +
Ruling
in the cases of:
1 Fidelis Ayoro OGURU,
of Oruma, Bayelsa State, Federal Republic of Nigeria,
2. the late Alali EFANGA,
former resident of Oruma, Bayelsa State, Federal Republic of Nigeria,
3. the association with legal personality VERENIGING MILIEUDEFENSIE,
established in Amsterdam,
appellants, also respondents in the cross-appeal,
hereinafter referred to as: Oguru, Efanga and MD, and jointly as: MD et al. (plural),
attorney-at-law: mr. Ch. Samkalden of Amsterdam,
versus (case a)
1 SHELL PETROLEUM N.V.,
established in The Hague,
2. the legal person incorporated under foreign law THE “SHELL” TRANSPORT AND TRADING COMPANY LIMITED,
established in London, United Kingdom,
respondents, also appellants in the cross-appeal,
hereinafter referred to as: Shell NV and Shell T&T, and jointly as: Shell (singular),
attorney-at-law: mr. J. de Bie Leuveling Tjeenk of Amsterdam,
and versus (case b)
1 the legal person incorporated under foreign law ROYAL DUTCH SHELL PLC.,
established in London, United Kingdom, with its registered office in The Hague,
2. the legal person incorporated under foreign law SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD.,
established in Port Harcourt, Rivers State, Federal Republic of Nigeria,
respondents, also appellants in the cross-appeal,
hereinafter referred to as: RDS and the SPDC, and jointly as: Shell (singular),
attorney-at-law: mr. J. de Bie Leuveling Tjeenk of Amsterdam.
Contents
The contents of this ruling has been divided as follows:
Course of the proceedings
General
The course of the proceedings in cases a and b
The further assessment
1. The facts (legal grounds 1.1 and 1.2)
2. The claims of MD et al. and the judgments of the district court (legal ground 2.1-2.2)
3. The appeal; preliminary considerations
Applicable law (legal ground 3.1-3.2)
Renewed assessment of the claims (legal ground 3.3-3.10)
Nigerian law; general (legal ground 3.11-3.21)
Exclusivity of the OPA (legal ground 3.22-3.25)
Liability of a parent company under Nigerian law (legal ground 3.26-3.33)
The extent of the contamination (legal ground 3.34)
4. Preliminary defences of Shell
Introduction (legal ground 4.1)
Right of action of Oguru and Efanga (legal ground 4.2-4.7)
Right of action of MD et al. under the OPA (legal ground 4.8-4.11)
5. The claims in respect of ‘Origin’ (of the leak)
Claims I and III.a against the SPDC (the subsidiary) (legal ground 5.1)
Sabotage defence: burden of proof and threshold of proof (legal ground 5.2-5.12)
Evaluation of the evidence (legal ground 5.13-5.27)
Conclusion on claims I and III.a-a against the SPDC in respect of ‘Origin’ (legal ground 5.28-5.30)
Claims I and III.a-a against the parent companies in respect of ‘Origin’ (legal ground 5.31-5.32)
Claim VI: keeping the pipe/pipes in a good state of repair (legal ground 5.33-5.34)
6. The claims against the SPDC in respect of ‘Response’
Background and bases (legal ground 6.1-6.5)
Access problems (legal ground 6.6-6.7)
Argument I: knowledge of moment of origin of the leak (legal ground 6.8)
Argument II: LDS (legal ground 6.9-6.26)
Argument III: oil supply pipe shut off too late (legal ground 6.27)
Argument IV: spilled oil contained too late (legal ground 6.28-6.29)
Conclusion on ‘Response’ claims I and III.a-a against the SPDC (legal ground 6.30-6.31)
Claim VII: order in respect of ‘Response’ (legal ground 6.32-6.46)
7. The claims against the Shell parent companies in respect of ‘Response’
Preliminary considerations (legal ground 7.1)
The knowledge requirement (legal ground 7.2-7.4)
The structure and management of the Shell group (legal ground 7.5-7.9)
Involvement in the LDS? (legal ground 7.10)
Re a) DEP 31.40.60 (legal ground 7.11-7.14)
Re b) the bonus policy (legal ground 7.15-7.18)
Re c) the statement of [witness 1] (legal ground 7.19-7.23)
Conclusion on the involvement issue and the further assessment (legal ground 7.24-7.29)
8. The claims in respect of ‘Decontamination’
Preliminary considerations (legal ground 8.1-8.4)
The EGASPIN recommendations (legal ground 8.5-8.8)
The further assessments of the Decontamination claims (legal ground 8.9)
The temporal aspects of the decontamination (legal ground 8.10)
Soil decontamination (legal ground 8.11-8.24)
Water decontamination (legal ground 8.25-8.27)
Conclusion on the negligence-based Decontamination claims (legal ground 8.28)
The Rylands v Fletcher rule (legal ground 8.29)
9. Claims II and III.b: the fundamental right to a clean living environment (legal ground 9.1-9.6)
10. Claims III.a-b and IX (legal ground 10.1-10.2)
11. Concluding considerations (legal ground 11.1-11.5)
Decision
Course of the proceedings
General
In this ruling, the Court of Appeal assesses cases a and b, which form part of six cases brought against Shell by MD and the Nigerian claimants/farmers. The current cases a and b concern a leak which occurred at the Nigerian village of Oruma in 2005. Cases c and d concern a leak which occurred at the Nigerian village of Goi in 2004. Cases e and f concern a leak which occurred at the Nigerian village of Ikot Ada Udo in 2007.
The appellant under 2, Alali Efanga, died in 2016. The lawsuit was continued under his name (see also point 47 of Shell’s defence on appeal, also statement of appeal in the cross-appeal stage 2).
The course of the proceedings in cases a and b
Please refer to the most recent interlocutory judgment of 31 July 2018 and the three preceding interlocutory judgments of 27 March 2018, 11 October 2016 and 18 December 2015 for a detailed overview of the course of the proceedings up to that date. A summary of the entire course of proceedings is presented below.
MD et al. have brought their appeal against the 30 January 2013 judgment of The Hague District Court (hereinafter: the district court) in time. This judgment is based on the following documents, inter alia:
- the initiating summons of MD et al. (IS);
- Shell’s statement of defence (SoD);
- the reply of MD et al. (R);
- Shell’s rejoinder (Rej);
- the written summaries of the oral arguments of MD et al. (WS-MD) and of Shell (WS-S) of 11 October 2012.
On appeal, the following court documents were submitted/the following procedural acts took place:
- the motion for the production of exhibits of MD et al. (M-Exh);
- Shell’s defence on appeal in the procedural issue pursuant to Section 843a Code of Civil Procedure including a motion for the court to decline jurisdiction in the procedural issue (DoA-Exh);
- the defence on appeal regarding the motion for the court to decline jurisdiction in the procedural issue pursuant to Section 843a Code of Civil Procedure of MD et al. (DoA-J/Exh);
- the record of appearance of the parties of 30 June 2014 (RA-2014), showing that the procedural agreement was made to split up the appeal proceedings into two phases, in which (phase 1) firstly an opinion would be given on the competence of the Dutch court, concurrently with a decision on the claim/claims in the procedural issue pursuant to Section 843a Code of Civil Procedure, followed by (phase 2) a decision on the merits;
- Shell’s statement of appeal in the cross-appeal stage 1 (SoA-cross/1);
- the statement of appeal on the dismissal of the Section 843a Code of Civil Procedure claim in phase 1 of MD et al. (SoA/1);
- Shell’s defence on appeal stage 1 (DoA/1);
- the defence on appeal against Shell’s statement of appeal (phase 1) of MD et al. (DoA-cross/1);
- the written summary of the oral arguments of MD et al. (WS/1-MD) and of Shell (WS/1-S);
- the interlocutory ruling of this Court of Appeal of 18 December 2015 (the 2015 ruling), in which it was decided (i) that the Dutch court had international jurisdiction to take cognizance of all claims and (ii) that MD had locus standi in the class action and in which (iii) the 843a Code of Civil Procedure claims of MD et al. were partially allowed;
- the interlocutory ruling of 27 March 2018 (the 2018/1 ruling) in which an expert examination into the cause of the leaks in Oruma and Goi was ordered – following a personal appearance of the parties and a documents exchange;
- the interlocutory ruling of 31 July 2018 (the 2018/2 ruling), in which a further application of MD et al. in the 843a Code of Civil Procedure procedural issue was dismissed;
- the expert opinion of 17 December 2018 (the expert opinion);
- the order of this Court of Appeal of 25 January 2019, in which the costs of the experts were estimated at € 44,840.18 for D. Koster and W. Sloterdijk and at £ 17,000.00 for T. Sowerby;
- the 260-page statement of appeal stage 2 of MD et al. (SoA/2);
- Shell’s 375-page defence on appeal/statement of appeal in the cross-appeal stage 2 (DoA/SoA-cross/2);
- the defence on appeal in the cross-appeal stage 2 of MD et al. (DoA-cross/2);
- the document commenting on exhibits in the principal appeal stage of MD et al. (DC-MD/2) in which they comment on Exhibits 56-57 to the DoA/SoA-cross/2;
- the document containing Exhibits Q.72-Q.80 of MD et al.;
- Shell’s additional Exhibits 77 and 78;
- Exhibits Q.81 and Q.82 of MD et al.;
- Shell’s Exhibits 79 and 80;
- Exhibits Q.83 and Q.84 of MD et al.
On 8 and 9 October 2020, the attorneys-at-law of the parties pleaded the cases (the 2020 hearing). They used written summaries of the oral arguments (WS/2-MD and WS/2-S), which they submitted. A record of the hearing was drawn up (RH-2020). The objections raised at the hearing against the submission of exhibits and against the arguments brought forward at the hearing were withdrawn.
The parties also submitted a folder (digital and in hard copy) containing the correspondence conducted, numbered 1 - 113. That folder also contains the report of findings of 18 July 2017 of mr. B.E. ter Haar concerning the confidential documents filed by Shell. Shell also submitted those documents on a USB flash drive.
The exhibits of MD et al. are identified with a letter and a number (for instance, M.1 and Q.83), Shell’s exhibits with only a number (for instance, 66).
Where reference is made hereinafter to the court documents, this is taken to mean the court documents in case b, unless expressly stated otherwise.
The further assessment