The IMO Legal Affairs Committee held its 104th Session (LEG104) from Wednesday 26 through Friday 28 April 2017. Dr Kofi Mbiah (GHANA) chaired the meeting (for the final time in his 6 year tenure) assistant by Vice-Chair, Mrs Gillian Grant (CANADA). Mr Volker Schofisch (GERMANY) was subsequently elected to succeed Dr Mbiah for LEG 105 whilst Mrs Grant was re-elected to continue acting as Vice-Chair. A Drafting Group (DG) was formed under the chairmanship of Mrs Grant in consideration of a draft Assembly Resolution related to the 2010 HNS (Hazardous and Noxious Substances) Protocol and delegation of authority to issue certificates of insurance under the 1992 Civil Liability Convention and 2010 HNS Convention.
The meeting was attended by representatives from 87 Member States, 2 Associate Members of IMO, 1 UN and Special Agency (ILO), 4 Inter-Governmental and 17 Non-Governmental organisations.
Matters of most interest to InterManager members are as follows:
- ADDRESS BY THE DIRECTOR OF LEGAL AFFAIRS ON BEHALF OF THE SECRETARY-GENERAL. Mr Kenney welcomed delegates for the 104th session of the Legal Committee on behalf of the Secretary-General, Mr Kitack-Lim, marking its 50th anniversary. Following the grounding of the TORREY CANYON on 18 March 1967, so many legal questions and problems were raised that the Council established an ad hoc Legal Committee which met for the first time in June 1967, comprising 22 countries and 5 NGOs. Amongst its achievements, a successful international liability and compensation regime has been established and a convention empowering coastal states was created to take action in protection of their respective coastlines from oil pollution following a maritime casualty; it has also taken action to prevent acts of terrorism which threaten the security of ships and carried out important work towards the protection of seafarers.
- He foresaw a future of the Committee very different from that of the past since many successful treaties covering most aspects of shipping have been developed and it now calls for the offering of assistance to IMO Member States with effective and uniform implementation of these important instruments at a global level. Expressing a firm belief that enhancement of the maritime sector should be embraced as a wealth creator both at sea and on land, he emphasised that this year’s World Maritime Day theme, which is ‘Connecting Ships, Ports and People’, is directly linked to IMO’s ocean governance on improving the safety of life at sea, ensuring protection of the marine environment and contributing to sustainable development.
- Mr Kenney next alluded to the main tasks of LEG 104, all of which will be covered subsequently in this report. Most importantly, he mentioned the close cooperation IMO enjoys with ILO in securing basic rights for seafarers and their families, such as adequate compensation for loss of life or personal injury, and adequate protection in cases of abandonment. In this connection, several issues would be considered regarding the provision of rescue, relief and rehabilitation for seafarers who have become victims of piracy.
- FACILITATION OF THE ENTRY INTO FORCE AND HARMONISED INTERPRETATION OF THE 2010 PROTOCOL. The Committee recalled that, with the entry into force of the Nairobi Wreck Removal Convention on 14 April 2015, the 2010 HNS Convention represents the remaining gap in the global framework of liability and compensation conventions. However, it was noted that the Kingdom of Norway deposited an instrument of ratification to the 2010 HNS Protocol on 21 April 2017, thus becoming the first Contracting State to do so. In considering the report of the HNS Correspondence Group, views were expressed in Plenary
on the proposals for HNS Incident Scenarios, the resolution and an HNS Workshop.
- Following discussion, the Committee:
- Approved the presentation on HNS Incident Scenarios;
- Determined that the resolution should be an Assembly resolution, as drafted by the Drafting Group to be submitted to Council 118 and thereafter Assembly 30 for adoption;
- Not to include reference to the work of the HNS Correspondence Group or to the delegation of authority to issue insurance certificates required under the 1992 Civil Liability Convention and 2010 HNS Convention;
- To include operative para 4 on specific reports by the Committee to the Assembly on the progress made and practical issues encountered;
- To approve the draft programme for a two-day workshop in 2018 with further regional or other meetings in relation to the thematic priorities for technical cooperation; and
- Not to extend the mandate for the HNS Correspondence Group.
- PROVISION OF FINANCIAL SECURITY IN CASE OF ABANDONMENT OF SEAFARERS, AND SHIPOWNERS’ RESPONSIBILITIES IN RESPECT OF CONTRACTUAL CLAIMS FOR PERSONAL INJURY TO, OR DEATH OF, SEAFARERS IN LIGHT OF THE PROGRESS OF AMENDMENTS TO THE ILO MARITIME LABOUR CONVENTION, 2006. It was recalled that the ILO Maritime Labour Convention, 2006 (MLC) entered into force on 20 August 2013, as subsequently amended by the first meeting of a Special Tripartite Committee established under the MLC relating to the provision of financial security for abandonment, personal injury to, or death of, seafarers. Following this, the Secretariat introduced a paper (LEG 104/4) updating the IMO/ILO joint database on abandonment of seafarers, reflecting the entry into force of the 2014 amendments to MLC 2006 and which has now been ratified by 82 States. The amendments (2014), established mandatory requirements for shipowners to maintain a financial security to cover the abandonment provisions and a certificate or other documentary evidence of financial security has to be carried on board ships flying the Flag of States party to MLC, 2006.
- An update of the IMO/ILO database was provided showing that, as of January 2017, 248 abandoned merchant ships are listed, of which some unresolved cases date back to 2006. Since entry into force of the MLC amendments on 18 January 2017, there has been an unwelcome spike of 11 new abandonment cases compared to 5 in the same period of 2016 and 5 in 2015. In 6 of the 11 cases, the shipowner had failed to carry the insurance required by the MLC amendments.
- ICS introduced document LEG 104/4/1 commenting on that by the Secretariat to consider what additional assistance could be given to make the database function more effectively. In particular, the Committee was requested to consider that the intended meaning of the categories ‘Resolved’, ‘Interactive’, ‘Disputed’ and ‘Unresolved’ should be defined and that it would make more sense to alter the term ‘Disputed’ to become ‘Partly Resolved’. A deadline of three months was suggested for inactive cases but it was decided that there should not be a set deadline and even if no further update can be provided, these incidents should not be formally closed on the database. Also, it was deemed that ‘Disputed’ cases should not be changed to ‘Partly Resolved’ if the dispute is ongoing.
- In order to further improve the functioning of the IMO/ILO database, the following issues will be addressed by the IMO and ILO Secretariats who will report to LEG 105 and to the ILO Governing Bodies on the outcome:
- Improvements to the status field, including definitions;
- Addition of contact information for those making reports;
- Information on actions taken;
- Methods to guarantee accuracy of information;
- Ability to refresh information;
- Consultations prior to publication; and
- The role of IMO in the management of the database.
- FAIR TREATMENT OF SEAFARERS IN THE EVENT OF A MARITIME ACCIDENT. It was recalled that, at its 103rd session, ITF informed the Committee that it was preparing guidance for States on the implementation of the 2006 Guidelines on fair treatment of seafarers in the event of a maritime accident. In view of the differing approaches adopted by States in implementing the Guidelines, ITF’s offer of hosting a one-day workshop at IMO on Friday 23 June 2017 to further develop guidance on implementation of the Guidelines for further submission to LEG 105, was accepted.
- ADVICE AND GUIDANCE IN CONNECTION WITH THE IMPLEMENTATION OF IMO INSTRUMENTS. The Committee considered the report of the intersessional Correspondence Group and the proposed draft Assembly resolution on the delegation of authority to issue insurance certificates required under the 1992 CLC and the 2010 HNS Convention. The Correspondence Group concluded that such delegation of authority should have no impact on the potential liability that a delegating State may have in relation to those certificates, moreover they could be guided by the Code for Recognised Organisations (Ro Code). After some discussion and in consideration of the Drafting Group’s report, the Committee approved a draft Assembly resolution on the delegation of authority to issue insurance certificates required under the 1992 CLC and the 2010 HNS Convention, to be submitted to Council 118 and thereafter Assembly 30 for adoption.
- With regard to legal advice on the status of the appendices to the FAL Convention requested by FAL 41, the Committee encouraged Member States to consult informally intersessionally, and submit relevant views on the status of the appendices to LEG 105 for submission to FAL 42.
- Two documents were tabled relating to this item, the first by the Secretariat and the other by INDIA. The Secretariat had previously reported activities by Working Group 2 of the Contract Group on Piracy off the coast of Somalia (CG PCS) which has since been restructured and renamed ‘Legal Forum of the CG PCS to convene on an ad hoc basis when necessary. Concerns were raised by ITF regarding the recent increase in piracy incidents off the coast of Somalia and in the Gulf of Aden, suggesting that CG PCS should provide further analysis on this increase in activity. The Committee also noted recent amendments to the Djibouti code of Conduct known as ‘The Jeddah Amendment’ and that it is exclusively addressed to vessels flying the flag of the signatories of the Djibouti Code. The second paper, submitted by INDIA raised two issues:
- That there is no adequate or updated information available to the Member States to which the seafarers belong regarding the [extent of] efforts made by concerned authorities for their release, well-being, medical support and payment of their wages; and
- The short duration of seafarers’ contracts, usually three to six months, often meant that contracts would run out during their captivity, resulting in a situation where there was no contractual obligation to have their wages paid.
- It was noted that the first issue has already been addressed in operative paragraph 8(1) of Assembly resolution A.1044(27) on ‘Piracy and Armed Robbery against Ships in Waters off the coast of Somalia’ thus precluding the need for issuing an IMO circular.
- With regard to the second issue, an ILO working group of the Special Tripartite Committee (STC) established under MLC 2006 is currently addressing exactly this matter thus the Committee decided that there is no need for IMO to duplicate such work, electing instead to await the outcome of ILO deliberations.
- DATE OF NEXT MEETING. It was agreed that the next session of LEG should be held during three meeting days in conjunction with meetings of the IOPC Funds and the HNS Workshop, provisional dates for which are 23 – 25 April 2018.
Captain Paddy McKnight END