The IMO’s Legal Committee held its 100th session from Monday 15 through Friday 19 April 2013 under the Chairmanship of Dr Kofi Mbiah (GHANA). A formal and informal working group (WG) were formed and chaired as follows:
Formal WG Collation and preservation of evidence following an allegation of a serious crime having taken place on board a ship or following a report of a missing person from a ship and pastoral and medical care of victims, chaired by Miss Katy Ware (UK)
Informal WG Discussion on draft planned outputs as dictated by the Committees Guidelines, chaired by Mr Gaute Sivertsen (NORWAY)
Of particular note, was the holding of a special Seminar to mark the 100th session which included a number of former legal luminaries related to the work of the Committee since its inception in 1967 following the TORREY CANYON disaster. Speakers included Dr Thomas Mensah, Professor Frank Wiswall, Mr Alfred Popp QC, Mr Mans Jacobsson, Dr Patrick Griggs CBE, Judge Shunji Yanai and finally, the current Chairman of the IMO Legal Committee, Dr Kofi Mbiah, ending with a valedictory address by Professor David Attard. Happily, the agenda for the meeting was not contentious; salient points from the meeting of most interest to Intermanager members are as follows :
• MONITORING THE IMPLEMENTATION OF THE HNS PROTOCOL, 2010. The outcome of a workshop on HNS Reporting, held at IMO in November 2012, in preparation for the entry into force of the HNS Protocol 2010 was reported by the delegation of CANADA. The main purpose of the workshop had been to consider, then endorse draft Guidelines on the reporting of HNS receipts to facilitate Protocol implementation by States. This was in turn endorsed by the Committee leaving no further obstacles to States from implementing and ratifying the Protocol in a timely manner. The Guidelines were the result of work by a large number of Member States and observers and will assist in the Convention being applied uniformly; they are not binding but will facilitate implementation and entry into force of the Protocol, particularly States’ submission of contributing cargo and will not exclude the use by implementing States of other options which are also provided for in the Protocol.
• PROVISION OF FINANCIAL SECURITY IN CASES OF ABANDONMENT, PERSONAL INJURY TO, OR DEATH OF SEAFARERS IN THE LIGHT OF PROGRESS TOWARDS THE ENTRY INTO FORCE OF THE ILO MARITIME LABOUR CONVENTION AND OF THE AMENDMENTS RELATED THERETO (2006) . The ILO MLC will enter into force on 20 August 2013 having been ratified by 30 Members and > 30% of the world gross tonnage of ships. Standing Orders for a ‘Special Tripartite Committee (STC) have been adopted to keep the MLC under review and will first meet in early 2014. In addition to considering amendments to the Code of the Convention, the STC will also play an important consultative role for countries that do not have shipowners’ or seafarers’ organisations to consult when implementing the MLC. It will also address the issue of financial security for crew members / seafarers and their dependants, with regard to compensation in cases of personal injury, death and abandonment, based on the recommendations of the joint IMO / ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers which were adopted in March 2009. The link for further information is: http://www.ilo.org/sector/activities/sectoral-meetings/WCMS 161208/lang–en/index.htm
• FAIR TREATMENT OF SEAFARERS IN THE EVENT OF A MARITIME ACCIDENT. A Seafarers’ Rights International (SRI) survey conducted in eight languages and carried out over a 12-month period, ending in February 2012, attracted 3,840 questionnaire responses submitted by seafarers from 68 different nationalities. It suggested that the rights of seafarers are often subject to violation, despite adopted IMO / ILO Guidelines. The most important findings revealed:
(1) frequent lack of due process for Seafarers who face criminal charges;
(2) unfair treatment, intimidation and lack of legal representation and interpretation services; and
(3) reluctance to cooperate with casualty enquiries due to lack of trust in the authorities.
It was agreed that this item should remain on the agenda of the Legal Committee and delegations were invited to submit proposals for outputs to improve compliance with the Guidelines to it next session.
THE ISLAMIC REPUBLIC OF IRAN raised the issue of discriminatory treatment by certain [unnamed] countries with regard to Muslim seafarers, in terms of shore leave from the perspective of human rights, safety of shipping and attracting new recruits to the shipping industry. Following a long discussion, it was concluded that:
(1) the issue should continue to be dealt with by the FAL Committee under Standard 3.44;
(2) there is therefore no need to reconvene the Joint IMO / ILO Ad Hoc Expert WG to consider this issue; and
(3) interested Member Governments might consider submitting the issue, including a draft resolution to the forthcoming Assembly, which if approved would provide the short-term solution sought by THE ISLAMIC REPUBLIC OF IRAN and other delegations.
• PIRACY. In response to a request at LEG 99, The United Nations Office on Drugs and Crime (UNODC) provided information on the number of pirates captured and handed ashore for further investigation, as well as information on the difficulties identified in the apprehension of pirates. Regrettably however, NATO reported that it holds no relevant records or information whilst EU NAVFOR has yet to respond. UKRAINE expressed a belief that transparency in identifying problems related to the apprehension of pirates is beneficial to all parties involved in combating piracy or struggling with the consequences of these crimes. Thus Member States and organisations in consultative status with IMO should share their experiences and provide related information to IMO, the primary forum within the UN system for coordinating efforts of the wider international community in the fight against piracy. The Committee was also reminded that States have full sovereignty within their territorial waters, consequently measures such as using privately armed guards on board ships should be adopted for combating piracy in places that are not subject to the jurisdiction of any State.
Referring to the need for mutual recognition between the P&I Clubs and Governments with regard to their respective lists of armed security companies, for insurance purposes, the Clubs’ representative noted that no such list exists, rather the P&I Clubs provide advice to their Shipowner members on the terms of the pertinent PCASP contract. The United Nations Interregional Crime and Justice Research Institute (UNICRI) provided information on the database of court decisions related to piracy in accordance with a request emanating from LEG99. Statistics include the average age of the pirates, the region and class they come from, occupations, when attacks are most likely to occur, the number of pirates participating in each attack, the use of motherships, the number of casualties occurring in pirate ranks, also the number and type of ships boarded.
• COLLATION AND PRESERVATION OF EVIDENCE FOLLOWING AN ALLEGATION OF A SERIOUS CRIME HAVING TAKEN PLACE ON BOARD A SHIP OR FOLLOWING A REPORT OF A MISSING PERSON FROM A SHIP AND PASTORAL AND MEDICAL CARE OF VICTIMS. In its deliberations, the WG took into account the fact that the master, officers and crew of a vessel are neither criminal law enforcement officials nor professional crime scene investigators and thus agreed that Guidelines should refer to “collection” of evidence rather than “collation”. Such Guidelines are based on existing text developed by MSC to assist in the investigation of the crimes of piracy and armed robbery against ships, adapted to fit particular issues related to other alleged crimes at sea. They further contain advice on actions to be taken in the event of a missing person, also the pastoral and medical care of victims. In consideration of the guidance for pastoral and medical care “victim[s]”, the WG judged the word inappropriate because in some circumstances, those affected by a serious crime may prefer not to be referred to as a victim.
In developing the draft Guidelines, the WG in particular:
(1) noted that the purpose of the Guidelines does not include determination of complex issues of criminal jurisdiction;
(2) deleted mention of the Casualty Investigation Code as it is not intended for investigating serious crimes as referenced in the draft Guidelines;
(3) agreed to include recognition that the master and officers are not criminal law enforcement officers or professional crime scene investigators and the Guidelines cannot therefore be construed as establishing a basis of any liability, criminal or otherwise, of the master, officers or crew in preserving and / or handling evidence, or related matters;
(4) reviewed the “Role of the Master”;
(5) reviewed action to be taken in the event that a person is reported, or believed, to be missing from a ship; and
(6) agreed that it is not practical to include a comprehensive list of crimes and legal definitions of serious crimes that require reporting but to insert a general text under the heading “Reportable serious crimes”, in the main body of the draft Guidelines.
Following an extensive discussion of the WG’s report, the Committee:
(a) agreed to the amended title of the draft Guidelines;
(b) approved the draft Guidelines and associated appendices;
(c) approved the associated draft resolution to the Guidelines;
(d) agreed the WG’s recommendation not to convene an intersessional working group or correspondence group to develop the Guidelines further, and
(e) approved the report of the WG.
The Committee further agreed that the draft Guidelines should be referred to the twenty-eighth session of the Assembly for adoption, subject to the Secretariat making any necessary editorial amendments to the text.
• TECHNICAL COOPERATION ACTIVITIES RELATED TO MARITIME LEGISLATION. Although technical assistance in the field of maritime legislation is already available to States on request, the Committee agreed to adjust its thematic priorities in the Integrated Technical Cooperation Programme (ITCP) covering the 2014 – 2015 biennium as follows:
“Providing means to strengthen the legal capacity, maritime policy and infrastructure of national maritime authorities, with particular emphasis on Least Developed Countries and Small Island Developing States.”
The need to secure more experts on legal matters in the IMO roster for technical cooperation was acknowledged and ways of making greater use of IMLI graduates are being explored by the Secretariat.
• REVIEW OF THE STATUS OF CONVENTIONS AND OTHER TREATY INSTRUMENTS EMANATING FROM THE LEGAL COMMITTEE. A number of Member States gave an update of where they stand in relation to the various Conventions yet to be fully ratified. Of particular interest is the 2002 Athens Protocol which needs only one more ratification to meet its first entry-into-force requirement. Others outstanding are the 2005 SUA Protocols, the 2007 Nairobi Wreck Removal Convention and the 2010 HNS Protocol.
• APPLICATION OF THE COMMITTEE’S GUIDELINES. The Committee agreed to the informal WG’s report on the status of planned outputs for the current biennium. Following discussion leading to a few minor amendments, planned outputs for the next biennium 2014 – 2015 were also approved and will be submitted to the 110th regular session of the Council for its endorsement.
• LIABILITY AND COMPENSATION ISSUES CONNECTED WITH TRANSBOUNDARY POLLUTION DAMAGE FROM OFFSHORE OIL EXPLORATION AND EXPLOITATION ACTIVITIES. The delegation of INDONESIA introduced document LEG 100/13 on the outcome of the second International Conference re subject held in Bali in November 2012. In so doing, it asserted that current international law in this area is insufficient and that IMO’s Legal Committee is the most appropriate forum to address the issue, also that it should be further discussed at a workshop of legal experts which it is prepared to host. While INDONESIA remained of the view that a legally binding international instrument would be the best way of responding to similar problems as those resulting from the Montara well-head platform incident, it was prepared to work with the Committee in developing guidance to assist States to enter into bilateral or regional arrangements. In the extensive discussion that followed, a great many views were expressed, some of which were contradictory. Given that the issue is not part of the High-level Action Plan, the Committee may not draft a binding instrument. However, assistance can be rendered by those States which have already entered into regional or bilateral agreements and the Committee’s expertise directed to develop a relevant draft model using similar principles to those used for the 1992 Civil Liability and Fund Conventions and the 2001 Bunkers Convention. There was general support for increased cooperation between States on the subject, as well as further work by the Committee. It was also suggested that INDONESIA should pursue the subject intersessionally and Member States were invited to send examples of existing bilateral and regional agreements to the Secretariat.
Meanwhile, INDONESIA will continue coordinating the informal consultative group to discuss issues connected with trans-boundary pollution damage, taking into account the views expressed by the Committee at this session. For its part, the Comité-Maritime International (CMI) will be hosting a symposium in Dublin from 29 September to 1 October 2013 which will include this subject on its agenda and CMI offered to share the results of the seminar with INDONESIA.
• ADVICE ON THE IMPLEMENTATION OF THE INTERNATIONAL CONVENTION ON CIVIL LIABILITY FOR OIL POLLUTION DAMAGE, 1992. The International Oil Pollution Compensation Funds (IOPC Funds) sought advice from the Committee on the possible consequences of discrepancies between insurance policies, blue cards and certificates issued under the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC92). The problems have arisen in several oil spill incidents and were highlighted in respect of one specific case, namely the ALFA1 incident which took place in Elefsis Bay, near Piraeus, Greece in 2012.
Two questions were raised:
(Q1) whether the State issuing the CLC certificate has an obligation to investigate the terms, conditions and cover provided in certificates (blue cards) presented by insurers; and
(Q2) whether, as a consequence, the State would have a potential liability to the IOPC Fund, should the Fund suffer a loss as a result of the insurance cover being insufficient.
With regard to Q1, there is an obligation in article VII, para 2 which requires the State to “determine” whether the requirements of article VII para 1 have been complied with. Accordingly, the State issuing the certificate has an obligation to investigate the blue card. In case of doubt as to the reliability of a blue card, the State should also examine the insurance policy and the condition of the insurer; where there is a discrepancy between the blue card and the insurance policy, it will be up to national law to determine the legal consequences in such a case.
Q2 is a more complex and difficult issue to address since CLC 92 does not clearly provide for the liability of the State if it issues a certificate on insufficient or invalid assurance. By contrast, the 1992 Fund Convention does place a liability on States who misreport oil receipts. Whilst the contracting State is not automatically liable to pay damages if an incorrect certificate has been issued, in some jurisdictions State liability depends upon whether a duty of care applies and in such cases, States may be liable in negligence, in the same way as private individuals, if the regime allows for such interpretation or by the domestic law. In theory, States may be liable in international law for improper implementation of their convention obligations but the purpose of the CLC regime may not be suited to apportioning State liability. Therefore, whether liability would be attributed to the State is an open question. Despite potential lack of insurance, there is still the liability of the shipowner, and the 130 State Parties to CLC 92 must ensure the exercise of due diligence to guarantee the long-term viability of the international regime.
Captain Paddy McKnight