The IMO’s Legal Committee held its 101st session from Monday 28 April to Friday 2 May 2014 under the Chairmanship of Dr Kofi Mbiah (GHANA) and his Vice-Chair, Mr Walter de Sá Leitão (BRAZIL). Both were subsequently re-elected for 2015. The agenda for the meeting was, to put it mildly, noticeably thin as this short report will attest.
- SEWOL. In his opening address, the Secretary-General expressed sympathy at the considerable loss of lives caused by the tragic accident of the ferry SEWOL which sank off the coast of the Republic of Korea on 16 April 2014. Deep condolences were paid to the delegation of the Republic of Korea and the bereaved families following which a one-minute silence was observed.
- FACILITATION OF THE ENTRY INTO FORCE AND HARMONISED IMPLEMENTATION OF THE HNS CONVENTION, 2010. The Committee considered that the 2010 HNS Convention should be applied uniformly and that the ‘Guidelines on reporting of HNS contributing cargo’, endorsed at its previous session, would assist this process. Facilitation of the entry into force and harmonised interpretation of the Convention will be included in the biennial agenda 2014-2015.
Introducing document LEG 101/3, CANADA, one of six co-sponsors, reported developments since the Committee last met on efforts to bring the Convention into force; this included the holding of an informal meeting of the representatives of 26 States, the constitution of an informal correspondence group and the creation of an HNS Protocol Blog by the IOPC Funds Secretariat. A reconstitution of the formal HNS Correspondence Group (HNS CG) was also proposed and subsequently agreed, noting that, with the entry into force of the 2007 Nairobi Wreck Removal Convention in April 2015, the 2010 HNS Convention would be the only remaining gap in the global framework of liability and compensation conventions. Mr François Marier (CANADA) was nominated as HNS CG coordinator and will report to LEG 102 which will then decide as to whether the formation of a Working Group is deemed appropriate.
The delegation of CANADA informed the Committee of their efforts to implement the 2010 HNS Convention following which the delegation of GERMANY introduced document LEG 101/3/2 posing a question as to whether State Parties to the 2010 HNS Convention can make provisions in their domestic law that shipowners from States which are not Party to the 2010 HNS Convention have unlimited liability. Following an extensive discussion, there was fairly unanimous agreement that States party to the 2010 HNS Convention cannot, in their domestic law, distinguish between shipowners from States which are party and those which are not party to the Convention. Therefore, shipowners from States that are not party to the Convention can limit their liability in States which are party to it.
- FAIR TREATMENT OF SEAFARERS IN THE EVENT OF A MARITIME ACCIDENT. Thirty nine Member States of IMO replied to the SRI questionnaire commissioned by ITF and IFSMA concerning the implementation of the 2006 Guidelines, representing 22.5% of its membership. Amongst its findings were:
- no State expressed a view that the Guidelines inadequately or unduly protect the right of seafarers, or are unfair to other parties;
- some States have already passed either all or some of the principles of the Guidelines into law;
- some States replied that existing laws already adequately protect the right of seafarers;
- some States indicated that model legislation from IMO would assist them to pass the Guidelines into their law; and
- some States specifically requested the provision of information by IMO regarding the meaning of the Guidelines.
States which have not yet answered the survey were encouraged to do so following which sponsors of the survey will undertake further analysis and report to the next session of the Committee for its consideration. It was remarked that various elements of the Guidelines affected government departments differently, and that the IMO Integrated Technical Cooperation Programme (ITCP) might be able to assist with resolving problems in this respect, also that the availability of more literature would help the implementation of the Guidelines.
- PIRACY. The Secretariat reported the outcome of Working Group 2 (WG2) which met in Djibouti as part of the Fifteenth Plenary Session of the Contact Group on Piracy off the coast of Somalia (CG PCS) between 10 and 14 November 2013. It was noted that:
- briefing was provided to WG2 by members of the Kampala Process (members of the Somali Contact Group on Counter piracy), in particular, the development of a three-year training plan to assist Somali legal capacity building in relation to maritime crime, and the development of a draft law for the establishment of a coastguard / maritime police;
- the legal aspects of the use of Privately Contracted Armed Security Personnel (PCASP) , and guidelines for Private Maritime Security Companies providing armed security personnel on board ships;
- the continuing infrastructure, training and mentoring focus of UNODC’s prisons and corrections work in Somalia;
- the disposition of seized pirate equipment and compensation issues involved; and
- detention and human rights aspects in the counter-piracy context.
Having achieved all of its aims, WG2 will henceforth be convened on an ad hoc basis when required and will be renamed the ‘Legal Forum of the CGPCS’, providing legal support to other working groups as requested. It was generally agreed that piracy continues to be an important international problem and that IMO should be involved in the Legal Forum. Additionally, it was felt that a military presence off the coast of Somalia continues to be justified whilst IMO is the proper forum in which to address the issue of armed guards on board ships.
- TECHNICAL COOPERATION ACTIVITIES RELATED TO MARITIME LEGISLATION. The Integrated Technical Cooperation Programme (ITCP) for 2014-2015 is currently being implemented by the Secretariat, increasing the number of activities, some technical, aimed at assisting Member States in drafting, updating and bringing into force legislation related to the implementation of all IMO instruments. The Technical Cooperation Division (TCD) has seen a need to secure more experts on legal matters in the IMO Roster for technical cooperation, identifying the possibility of using graduates from the International Maritime Law Institute (IMLI) in addition to inviting LEG attendees to put forward an online application for inclusion in the IMO Roster thus providing support for IMO’s capacity-building efforts in the legal field.
Country maritime profiles intended to provide a basis for the development of ITCP achieved overwhelming support at TC63 yet only 59 IMO Member States have completed wholly or partially their profiles which are available as a module in GISIS, on the IMO secure access website. The module enables authorised users to input their data directly and in order to add further encouragement, a short guide has been prepared incorporating the key elements and common issues of a typical national maritime policy.
Finally, it was recognised that IMO should be in a position to provide technical assistance to all Member States requiring such assistance, not just developing States.
- IMO INTERNATIONAL MARITIME LAW INSTITUTE (IMLI). Based in Malta, IMLI is celebrating its 25th anniversary which was recognised by the Committee in a special ceremony to mark the occasion. By the end of the academic year 2013-2014, a total of 683 students from 130 States and territories worldwide will have undergone studies in all IMLI’s programmes and courses, most notably the LLM Degree in International Maritime Law, which 33 students are currently pursuing.
- REVIEW OF THE STATUS OF CONVENTIONS AND OTHER TREATY INSTRUMENTS EMANATING FROM THE LEGAL COMMITTEE. Member States informed the Committee of their various stances in regard to the Conventions and other Instruments emanating from the Legal Committee. Of particular note was the entry into force on 23 April 2014, of the Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974. Also the Nairobi International Convention on the Removal of Wrecks, 2007, has met its entry-into-force requirements with the ratification by DENMARK on 14 April 2014 thus enabling entry into force on 14 April 2015. This will make shipowners potentially liable for the costs of wreck removal. Noting that the theme for World Maritime Day 2014 is the implementation of Conventions, delegations were encouraged to bring this to the attention of their respective Governments in regard to the ratification of all relevant Conventions, particularly that of the 2010 HNS Convention.
- ILO MLC 2006. The representative of ILO, Mrs Cleopatra Doumbia-Henry informed the Committee that MLC 2006 is now in force for 39 countries and that many elements of IMO practices, such as ‘tacit acceptance’ have been adopted. The first 30 reports on national implementation are due from 20 August 2014 and will be considered by the ILO’s Committee of Experts at its end of year meeting; their report will subsequently be considered by the International Labour Conference in June 2015.
The first meeting of the Special Tripartite Committee, held in Geneva last month, adopted by virtually unanimous agreement, amendments to the Code of the Convention addressing the issue of financial security for seafarers / crew members and their dependants with regard to compensation in cases of personal injury, death and abandonment, based on recommendations by the joint IMO / ILO Ad Hoc Expert Working Group. The adopted amendments will shortly be transmitted for approval to the International Labour Conference in June 2014.
- PLACES OF REFUGE FOR SHIPS IN NEED OF ASSISTANCE. Introducing a paper co-sponsored by IG, IUMI and ISU, ICS informed the Committee that a ship will request a place of refuge only if it is in distress or in need of assistance and that early, decisive intervention will minimise the risk of structural deterioration and mitigate the threat of pollution from the ship’s cargo and bunkers.
The Committee was reminded that a place of refuge for a ship in distress is not an absolute right under customary international law and that a ship entering a port in force majeur is different to that granted the place of refuge whilst in distress. However, the delay in gaining access to safe places of refuge creates a large increase in the monetary quantum of Salvage awards according to IUMI. ISU expressed the view that States should establish a single point of contact to manage requests and to assess each case on its merits without, and free from, any political interference, recommending a command and control model akin to that used by the UK. CMI observed that the Guidelines on places of refuge for ships in need of assistance are not working as intended for shipowners and their insurers; indeed, he advised that in view of the incidents involving PRESTIGE, CASTOR and MARITIME MAISIE, the Committee may need to reconsider the need for imposing an obligation, including reservations to grant access.
The Committee concluded that the issue of places of refuge is relevant in the context of the existing framework of international conventions including Civil Liability Convention 1992, the Bunkers Convention 2001, the HNS Convention 2010, and the Nairobi Wrecks Removal Convention 2007 (Nairobi WRC). The ratification and effective implementation of these conventions, along with the Fund Convention 1992 and the Supplementary Fund Convention 2003 in respect of oil pollution damage, will bring into effect the provisions concerning liability and compensation for pollution prevention measures, clean-up operations, and wreck removal, including circumstances where damage or losses occur following a State’s decision to grant a ship a place of refuge.
Captain Paddy McKnight END