The IMO’s Legal Committee held its 103rd session from Wednesday 8 June through Friday 10 June 2016 under the Chairmanship of Dr Kofi Mbiah (GHANA) and his (retiring) Vice-Chair, Mr Walter de Sá Leitão (BRAZIL). The former was subsequently re-elected for 2017 whilst Mrs Gillian Grant (CANADA) was elected to succeed Mr de Sá Leitão.
The meeting was attended by delegations from 79 IMO Member States, 2 Associate members of IMO, 2 Observers from Inter-Governmental organisations and 19 Non-Governmental organisations. There were no working or drafting groups and the meeting was conducted entirely in Plenary Session.
Following are points of most interest to InterManager members:
• IMO SECRETARY-GENERAL’S ADDRESS. In his welcoming address, Mr K. Lim the Secretary General of the IMO, expressed condolences to the delegation of BELGIUM and the bereaved families, friends and colleagues of innocent victims killed or injured during terrorist attacks in Brussels earlier this year. In particular, he paid tribute to Mr Johan Von Steen, one of those who died, and who was a staunch member of IMO’s Legal Committee for more than a decade.
He next went on to mention three particular issues for high-level policy development, including unsafe and mixed migration by sea; domestic ferry safety; and the smooth implementation of the Mandatory Audit Scheme. Noting that the IMO has developed and adopted more than 50 new international conventions over the years, he felt that collectively, they have done a huge amount to reduce accidental or environmental damage. However, adoption of an IMO Convention is not an end in itself and it is only of value if it is effectively and universally implemented. In practice, this involves a number of different players, including shipping companies, classification societies and even seafarers. However, ultimately, the legal responsibility lies with IMO’s Member governments and shortcomings in national law are no excuse for non-performance when it comes to international instruments. For those States encountering problems in implementation, advice and practical assistance is available through the IMO technical programme, also the Member State Audit Scheme.
Mr Lim next went on to speak about the importance of sustainable shipping and maritime development referring to the adoption of the 2030 Agenda for Sustainable Development and the Paris Agreement under the UN Framework Convention on Climate Change, mentioning development of an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.
Continuing his somewhat lengthy speech, the Secretary General spoke about the many years of fruitful cooperation between the Comité Maritime International (CMI) and IMO in developing legal instruments including Civil Liability for Oil Pollution Damage, Limitation of Liability for Maritime Claims (LLMC), Carriage of Passengers and their Luggage by Sea, the Bunkers Convention and the Nairobi Wreck Removal Convention. This accolade was prompted by a joint submission from CMI, China and the Republic of Korea proposing a new output to develop an instrument on the foreign judicial sales of ships and their recognition. Turning to items on the agenda for the meeting, he referred to the 2010 HNS Convention urging all States to consider acceding to the Protocol, also Piracy, the Reduction of Administrative Burdens and finally, liability and compensation issues for transboundary pollution damage resulting from offshore oil exploration and exploitation activities.
• FACILITATION OF THE ENTRY INTO FORCE AND HARMONISED INTERPRETATION OF THE 2010 HNS PROTOCOL. Following a long discussion, the Committee agreed to:
1. Extend the mandate of the HNS Correspondence Group (CG) with amended terms of reference;
2. Endorse the proposed outline of the HNS Incident Scenarios;
3. Invite the International Group (IG) of P&I Associations to update the 2010 statistics on incidents with ships carrying HNS;
4. The draft resolution, in principle, but with a number of caveats, leaving LEG 104 to decide on its nature;
5. Refer the draft resolution to the HNS CG for finalisation and consideration at LEG 104; and
6. Consider at LEG104 whether to hold a workshop on the HNS Convention on the basis of a programme to be developed by the HNS CG.
In conclusion, the Committee encouraged Member States to ratify and bring into force the 2010 HNS Protocol as soon as possible, however the author remains unconvinced that the IMO Member States have any wish to do so, given that the data collection statistics provided by the IG in 2010 appear to remain largely unchanged.
• FINANCIAL SECURITY IN CASE OF ABANDONMENT OF SEAFARERS AND SHIPOWNERS’ RELATED RESPONSIBILITIES. The Committee noted that the 2014 amendment to MLC 2006 related to the provision of financial security for abandonment, personal injury to and death of seafarers, will enter into force on 18 January 2017. Noting also that, as of March 2016, the ILO’s Abandonment of Seafarers Database contains the details of 192 abandoned merchant ships dating back to 2006 with some abandonment cases still unresolved, the item will be further discussed at LEG 104.
• FAIR TREATMENT OF SEAFARERS IN THE EVENT OF A MARITIME ACCIDENT. ITF submitted document LEG 103/5 encouraging Member States to request workshops to facilitate the wide implementation of the 2006 Guidelines on fair treatment of seafarers in the event of a maritime accident adopted jointly by IMO and ILO. This was prompted by further analysis of the survey conducted by ITF in 2015 where it became apparent that Member States have taken many different approaches with regard to implementation of the Guidelines. Given such differences, ITF argued successfully that the most effective way to rationalise the various approaches would be to hold regional and / or national workshops as requested by Member States where the different approaches could be fully discussed and carefully considered with regard to their suitability for the Member States in question. In congratulating ITF on its efforts, the Secretary General spoke of finding the proper linkage between the work of both the TCC and MSC on this issue to which committees the outcome of LEG 103 would be reported. In the meanwhile, ITF will continue to prepare guidance for States on the implementation of the Guidelines by drawing on responses to the survey and, following the outcome of any workshops, submit such guidance to LEG 104 for endorsement.
• PIRACY. Rather disappointingly there were no submissions relating to this agenda item. However, the Secretariat reported that Working Group 2 of the Contact Group on Piracy off the Coast of Somalia (CGPCS), having achieved its aims, would only convene on an ad hoc basis and that it has not done so since the CGPCS Strategy Meeting held in Paris during January 2014. In addition:
1. The Legal Forum of the CGPCS has not convened since January 2014;
2. The Legal Affairs Office of IMO has not conducted or participated in any activities related to piracy since LEG 102 in 2014; and
3. All counter-piracy initiatives undertaken by the Maritime Safety Division of IMO will continue to be reported to MSC.
The delegation of INDIA raised two issues regarding the provision of rescue, relief and rehabilitation to seafarers who have become victims of Piracy in that:
1. There is no consistent practise by flag States regarding provision of information to the seafarers’ State on rescue operations, no medical support in captivity, and no assistance from flag States to ensure that shipowners continue to pay the seafarers’ wages; and
2. The short duration of seafarers’ contracts, usually three to six months, often means that they run out during captivity and shipowners do not feel contractually obliged to continue paying wages.
Taking due note of these two points, the delegation of INDIA was invited to submit a document addressing the issues to the next session of LEG (104) for consideration.
• REDUCTION OF ADMINISTRATIVE BURDENS. Document LEG 103/8 provided the IMO Secretariat’s analysis of recommendations to reduce administrative burdens as identified by the ad-hoc Steering Group for Reducing Administrative Requirements (SG-RAR) in IMO instruments related to the work of the Legal Committee. Following consideration, the Committee:
1. Encouraged States Parties to use the expanded GISIS module on ‘Recognised Organisations’ to fulfil relevant reporting requirements;
2. Urged States Parties to expedite implementation of electronic certificates under the CLC and Bunkers Conventions.
3. Requested the IMO Secretariat to include insurance certificates under the Athens, Nairobi and HNS Conventions into the list of certificates and documents required to be carried on board ships; and
4. Rejected the proposed use of the single model certificate for all insurance requirements applicable to a ship (as contained in the Annex to LEG 96/4).
• REVIEW OF THE STATUS OF CONVENTIONS. Several delegations provided updates on progress with regard to the ratification and implementation of IMO instruments, most importantly that of AUSTRALIA, stating that they intend to ratify the BWM Convention by the end of 2016. AUSTRALIA’s 0.1% of the world fleet (added to that of SAINT LUCIA which acceded on 26 May 2016), will make a total 34.91% of world tonnage, just 0.09% short of triggering entry into force of the BWM Convention, given that the number of States party to the BWMC, now 50, easily exceeds the numbers required.
• TRANSBOUNDARY POLLUTION DAMAGE. Following extensive discussion, the Committee restated its view that there is no compelling need for the development of an international instrument on the liability and compensation issues connected with transboundary damage resulting from offshore oil exploration and exploitation activities. However, INDONESIA, DENMARK and other interested Parties were encouraged to finalise guidance on such damage between those likely to be affected, taking into account the comments made in Plenary.
• DELEGATING AUTHORITY OF ISSUING CERTIFICATES UNDER THE CLC AND HNS CONVENTION. Having reviewed a number of options, the Committee supported the development of an Assembly resolution to allow for the delegation of authority to issue insurance certificates under the CLC and the HNS Conventions. It was therefore decided to establish an intersessional Correspondence Group to produce a draft resolution under the coordination of FRANCE, reporting to LEG 104.
• FOREIGN JUDICIAL SALES OF SHIPS AND THEIR RECOGNITION. The proposal to add a new output for developing an instrument on foreign judicial sales of ships and their recognition was opposed by some who argued that is a matter of private and commercial law and therefore does not fall within the remit of the Committee. A number disagreed, pointing out that IMO’s past involvement in similar legislative initiatives strongly argued that the issue was within the IMO’s scope whilst others were of the opinion that UNCTAD should be involved.
Thanking CMI for the information provided, the Committee nevertheless concluded that while that there had been a measure of support for the proposal, a compelling need had not been established. It was noted that CMI intends to bring the matter to the attention of other relevant international fora and may report back to LEG at a later stage.
DATE OF NEXT MEETING: April 2017
Captain Paddy McKnight