Legal and judicial issues surrounding the explosion at the Kaloum oil depot (Conakry).

Following the explosion at the Kaloum oil depot (Conakry-Guinea), Me DRAMÉ analyzed the legal and judicial stakes of this situation. In this article, he focuses on the criminal and environmental liability of the players involved (1), the liability of insurers in compensating the natural and legal persons affected (2), the possible liability of the shareholders of the company operating the depot (3), and the difficulties of enforcing commercial contracts (4). It also illustrates the possibilities of a settlement between the French State and the company operating the depot, with a view to abandoning criminal and civil proceedings and setting up a compensation fund for victims (5).

Context :

On the night of Sunday December 17 to Monday December 18, 2023, the Société Guinéenne des Pétroles (SGP) oil depot in the commune of Kaloum (Conakry - Guinea) caught fire, causing loss of life and considerable material damage. Given the central and strategic role of petroleum products in a country's economic and social life, socio-economic activities have been severely disrupted in Guinea since last Monday.

Without claiming to address all the legal and judicial consequences of this explosion, the following developments will concern: the criminal and environmental liability of the players involved (1), the liability of insurers in the context of compensation for natural and legal persons impacted (2), the possible liabilities of the shareholders of the company operating the oil depot (3), the difficulties of enforcing commercial contracts (4) and the possibilities of a settlement between the State and the company operating the depot for the compensation of victims and the abandonment of criminal and civil actions (5).

1. Criminal and environmental liability of the players involved

With the number of deaths, injuries and material damage recorded, the offences of manslaughter, unintentional injury, endangering the lives of others and destruction of property could be held against the company operating the depot and its directors. Victims and beneficiaries may institute criminal proceedings directly or act as civil parties in the investigation requested by the Public Prosecutor's Office of the Kaloum Court of First Instance (TPI).

On the environmental front, with air pollution and its consequences on local populations since the incident, as well as allegations of possible ecological damage, the State and associations for the defense of the environment with five (5) years of legal existence can engage the liability of the company operating the depot and its managers on the basis of the provisions of articles 165, 166, 193 and 194 of the Environmental Code of 2019 and articles 1173 to 1179 of the Civil Code. Jurisdiction will lie with the civil courts, in particular the TPI of Kaloum (where the incident took place and where the company operating the depot is headquartered). Consequently, it is important for all those involved in this incident, particularly the victims, to be accompanied by legal advisors to protect their rights and interests, given the penalties incurred by those prosecuted (6 months to 5 years' imprisonment) and the compensation for the damage caused.

2. Insurers' liability to compensate natural and legal persons affected

When it comes to insurance, the most important thing to bear in mind is the risk coverage stipulated in the insurance contract between the insurer and its customer, and the exclusions and deductibles applicable to compensation. As a reminder, Article 127 of the French Insurance Code requires oil depot companies to take out third-party liability insurance. In the case in point, the insurer of the company operating the exploded depot will certainly have to deal with a multitude of claims, the basis of which will be analyzed in depth.

Owners, managers and/or tenants of buildings in the Kaloum area affected by the oil depot explosion (e.g. damage to windows, glass breakage, building structure, etc.) should note that if they have comprehensive professional or household insurance covering the above situations, they can have bailiffs draw up statements of facts and submit a claim for compensation to their insurers. In the event of any difficulty in obtaining compensation, particularly in the event of rejection of the insurer's compensation proposal, the Conakry Commercial Court will have jurisdiction over disputes between the insurer and the insured (whether or not a merchant). In addition, the Conakry TPI may also be called upon if the insured is a natural or legal person who is not a merchant. This litigation will involve, among other things, requests for expert appraisals to assess damage and compensation amounts.

3. Potential liabilities of the shareholders of the oil depot operating company

The company operating the Kaloum oil depot which caught fire is made up of shareholders whose head offices are based outside Guinea, and who are major companies in the oil industry. This raises the question of whether the aforementioned shareholders can be held liable. In this sense, it should be pointed out by way of example that French law n°2017-399 of March 27, 2017 relating to the duty of vigilance of parent companies imposes obligations on parent companies incorporated under French law with regard to the prevention of harm to the environment, health and safety of persons in order to avoid the occurrence of damage relating thereto. One of these obligations is to draw up a due diligence plan to prevent the aforementioned risks. In the event of non-compliance with this obligation, the parent company will be held liable, and will have to compensate for the damage that could have been avoided by fulfilling its obligations. Any such litigation could be handled by the competent courts of the head office of parent companies subject to the requirements of due diligence legislation.

4. Difficulties in enforcing commercial contracts

With petroleum product stations closed for the first five (5) days of the incident and supply difficulties in sight, one might wonder about the risks of litigation linked to the non-performance or poor performance of commercial contracts (e.g. transport, energy, construction, telecoms, etc.). Could a contractor who fails to perform his contractual obligations because of a default or increase in the price of fuel be sued on the basis of contractual and legal provisions? Are force majeure or unforeseeability enshrined in the new 2019 Civil Code (art. 1092) acceptable defenses to exonerate contracting parties from their contractual obligations? The answers to these questions will depend on the specific elements of each case. Companies facing these situations are therefore strongly advised to seek the support of their legal advisors in order to find balanced solutions for the performance of current commercial contracts and limit related commercial litigation. The latter will be handled by the Conakry Commercial Court for the Conakry area, in the absence of an arbitration clause or the choice of a foreign jurisdiction.

5. Possibilities of a settlement and the establishment of a compensation fund for victims

Given the large number of families affected by the explosion at this oil depot, and the risk of several criminal and civil proceedings, the French government and the depot's operating company, with the support of its shareholders, could consider negotiating and signing a settlement agreement and setting up a compensation fund for victims, financed by the depot's operating company. This option was implemented in Côte d'Ivoire following the incident involving Trafigura's Probo Koala, as well as in France in the contaminated blood affair, and in the United States with the September 11, 2001 "Victim Compensation Fund". However, this option raises fundamental and legitimate questions relating to the right of access to justice and the right to reparation, rights provided for and guaranteed by national and international legal instruments ratified by Guinea. Nevertheless, this option has the advantage of avoiding lengthy procedures and the lack of representation for victims, while offering a form of legal certainty for the private operator involved in the incident.

By Me Hamidou DRAME
Admitted to the Guinea and Lyon Bars (France)
Partner at Guilex Avocats
Email : hdrame@guilex-avocats.com

Tel : +224 628 03 54 13