Onder 6.5 Gerechtshof Den Haag 18 december 2015

If in the future it is established that sabotage was indeed the cause of the damage, a decision is still needed in the principal cases about the accusation that Shell was negligent in preventing it. In as far as Milieudefensie et al. require inspection of documents in connection to this accusation, this interest may also cease to exist if sabotage is discarded as a cause of the damage. If this is not the case, it remains to be decided in stage 2 in a further debate between the parties whether in 2004 Shell under Nigerian law had a duty, and if so which one, to prevent sabotage to this subterraneous oil pipeline, which according to Milieudefensie et al. is buried at approximately 60 centimetres, or at least to limit the consequences of such sabotage. What Milieudefensie et al. assert is that Shell, as it is doing now, should have replaced and diverted the pipeline before, and should have provided it with leak detection technology. In stage 2 of the appeal the parties are requested to obtain further information (preferably jointly) about Nigerian law then in force, in the light of, inter alia , SPDC v. Otoko (1990) 6 NLWR (Pt. 159) and the later judgment of the English court in The Bodo Community and Others v. SPDC [2014] EWHC 1973 (TCC), in which Justice Akenhead ‘issue 2, whether SPDC can be liable under Section 11(5)(c) of the OPA 1990 to pay just compensation for damage caused by oil from its pipelines that had been released as the result of illegal bunkering and/or illegal refining’ answers as follows: The answer to issue 2 is strictly speaking “No”; there has to be neglect on the part of the licencee. It is conceivable however that neglect by the licencee in the protection of the pipeline (as defined above) which can be proved to be the enabling cause of preventable damage to the pipeline by people illegally engaged in bunkering which causes spillage could give rise to a liability; this may be difficult to prove but there is that theoretical possibility. I cannot at the moment see that damage caused from illegal refining by criminal gangs of crude oil criminally taken from pipelines which have been broken into could fall within a duty “to protect ... any work structure or thing executed under the licence” because (I assume) that the illegal refinery has not been executed under licence by the licencee.’

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