The IMO Legal Affairs Committee held its 105th Session (LEG 105) from Monday 23 through Wednesday 25 April 2018. Mr Volker Schofisch (GERMANY) chaired the meeting (for the first time) assisted by Vice-Chair, Ms Gillian Grant (CANADA), both of whom were re-elected for 2019.
The meeting was attended by representatives from 83 Member States, 2 Associate Members of IMO, 5 Inter-Governmental and 18 Non-Governmental, organisations.
Matters of most interest to InterManager members are as follows:
ADDRESS BY THE SECRETARY-GENERAL. Mr Ki Tack Lim gave a warm welcome to Plenary delegates and reminded all present that the theme for this year’s World Maritime Day (27 September at IMO headquarters) is ‘IMO 70: Our heritage – better shipping for a better future’. In addition, a parallel event will be held in Poland during June. Mr Lim next referred to the visit by Her Majesty Queen Elizabeth II to commemorate IMO’s 70th birthday during the preceding month, noting also that during the Legal Committees 50 years in existence, a total of 20 Treaties have been processed.
The Secretary General then referred to two issues close to his heart, the first of which is that of the fair treatment and abandonment of Seafarers. He spoke of this at great length during which he mentioned the growing numbers of Abandonment cases, and the roles played by Flag States, Port States and the need for Shipowners to put in place adequate insurance which will safeguard Seafarers adding that PSCO’s also should check that appropriate certification on board ships is correct. Referring to guidance developed by IMO and ILO on the fair treatment of Seafarers in the event of a maritime accident, he stated that it is the responsibility of Governments to give effect to the guidelines in their national legislation whilst welcoming the initiative by ITF and Seafarers’ Rights International to develop guidance in assisting Member States to effect implementation of the guidelines.
The second item of concern to him is the 2010 HNS Convention which despite growing numbers of cargoes (200 million tons of chemicals carried this past year), has yet to come into force since the Convention currently does not have enough signatories. However, he revealed that immediately prior to the meeting, CANADA deposited its Instrument of Ratification of the 2010 HNS Protocol together with data on the contributing cargoes, as also had TURKEY.
Finally, Mr Lim mentioned that 2 new items had been added to the Legal Committee’s purview namely, measures to prevent unlawful practices associated with the fraudulent registration and fraudulent registries of ships, also, consideration of a scoping exercise plus gap analysis with respect to Maritime Autonomous Surface Ships (MASS).
The Secretary General concluded by wishing delegates “every success this week”.
FACILITATION OF THE ENTRY INTO FORCE AND HARMONISED INTERPRETATION OF THE 2010 HNS PROTOCOL. It was recalled that, with the entry into force of the Nairobi Wreck Removal Convention on 14 April 2015, the 2010 HNS Convention is the only remaining gap in the global framework of liability and compensation conventions. The Committee noted that, at present, there are three Contracting States to the HNS Protocol, each of which has more than 2 million units of gross ship’s tonnage, receiving in 2017 a total quantity of 28,713,155 tonnes of cargo contributing to the general account.. Thus, the 2010 Protocol needs only nine more States in order to come into force, one of which States must have more than 2 million gross tonnage of shipping, whilst noting that 72% of the contributing cargo required for entry into force has already been achieved.
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. Amendments to the Maritime Labour Convention (MLC), 2006 related to the provision of financial security for abandonment, personal injury to and death of seafarers, entered into force on 18 January 2017. LEG 104 had agreed the importance of updating the joint IMO/ILO database of abandonment, results of which would be reported to LEG 105 and the ILO Governing Bodies. This shows that as of 19 January 2018, there were 316 abandonment incidents listed on the database, affecting 4,020 seafarers. Of those incidents, 156 cases were resolved, 58 cases were disputed and 50 cases maintained their inactive status leaving 52 cases unresolved. From 2011 to 2016, the number of cases per year ranged from 12 to 19 but in 2017, the number rose dramatically to 55 and as of April 2018, 11 new cases have been reported, only one of which has been resolved. During its deliberations, the Committee was given a graphic description as to how badly the crews of some unresolved vessels had been treated and left in squalid conditions during various Abandonment cases. .
Following a prolonged discussion, the Committee : agreed that proposals for additional improvements to the database should be submitted to LEG 106; asked the Secretariat to consult with ILO to include information related to insurance, or lack thereof, for inclusion in the database for each new case; and, requested the Secretariats of IMO and ILO to look into creating a list of competent authorities and organisations who can assist in resolving cases, then reporting their recommendations to LEG 106.
FAIR TREATMENT OF SEAFARERS IN THE EVENT OF A MARITIME ACCIDENT. The Committee recalled that the rights of seafarers, as enshrined in the 2006 Guidelines on fair treatment of seafarers in the event of a maritime accident (the Guidelines), adopted jointly by IMO and ILO, are often subject to violation and that the ITF had prepared guidance for States on the implementation of the Guidelines in view of the different approaches that States had taken in implementing them. It was felt that further work on guideline implementation should now continue at regional level to allow for more detailed discussions on national legislation and the first regional workshop will be hosted by the Government of the Philippines in Manila from 24 to 25 July 2018 to which all members of the Committee were invited to participate. Following this, the delegation of PANAMA offered to host any regional workshop that might be called for in the Latin American region.
ADVICE AND GUIDANCE IN CONNECTION WITH THE IMPLEMENTATION OF IMO INSTRUMENTS. The Committee noted information provided by NORWAY on a digitalization project to issue electronic CLC and Bunker certificates which will replace the current manual method. The new solution involves a machine-to-machine validation where the process of issuing and signing certificates is digital, meaning that the communication between the insurers and the flag State will also be digital and largely automated. The electronic certificates will be issued in accordance with the Guidelines for the use of electronic certificates and promises to reduce the administrative burden for the industry.
The Committee recalled that FAL 41 had requested the Legal Committee to provide legal advice on the status of the appendices to the Convention on Facilitation of International Maritime Traffic (FAL Convention). Two documents were considered, one presenting intersessional work in relation to the request and the other, a submission by the Secretariat providing further background on the genesis of the four appendices. The Chair took an initiative to prepare legal advice in a Working Paper (subsequently further refined following extensive discussion) and following general approval, agreed to submit it to the Facilitation Committee for its consideration.
UKRAINE submitted a document drawing the Committee’s attention to its concerns regarding the Russian Federation’s actions in the temporarily occupied Autonomous Republic of Crimea and the city of Sevastopol, Ukraine, also the consequences of such actions for the implementation of IMO instruments. In response, the delegation of the Russian Federation expressed the view that he issues raised by Ukraine were political questions that could not, and should not, be considered by the Organisation (IMO). Following this, a number of delegations spoke in support of the concerns expressed in Ukraine’s submission after which the Committee noted the document and also took note of the statements made.
PIRACY. The Committee considered document LEG 105/7 by the Secretariat reporting on developments related to piracy which have occurred since LEG 104, specifically the considerations by MSC 98 concerning floating armouries, the status of the Jeddah Amendment to the Djibouti Code of Conduct 2017, and the decisions taken at the twentieth plenary session of the Contact Group on Piracy off the Coast of Somalia (CGPCS), which took place in Mauritius from 5 to 7 July 2017. During the debate, views were expressed that :
- IMO is the appropriate forum in which to discuss both legal and technical aspects of piracy, also, to undertake efforts to combat piracy and armed robbery;
- With regards to wages of seafarers who are being kept captive by pirates, developments at ILO and respective MLC amendments should continue to be monitored;
- The growing number of piracy attacks and seafarers being held captive in the Gulf of Guinea is of deep concern;
- Support for the Djibouti Code of Conduct and the Jeddah Amendments was expressed; and,
- Draft guidelines for floating armouries submitted to MSC was not supported by one delegation.
TECHNICAL COOPERATION ACTIVITIES RELATED TO MARITIME LEGISLATION. The Secretariat informed the Committee that the main focus of the technical assistance activities in the field of maritime legislation was on training lawyers and drafters on the legal implementation of IMO conventions through the development of national legislation. The first workshop on general principles of drafting national legislation was held in September 2017 for 20 countries scheduled to undergo the IMO Member State Audit, and a second workshop will take place in October 2018. A new publication to assist Member States with the effective and uniform implementation of IMO’s liability and compensation regime will be available for purchase shortly.
Document LEG 105/9/2 was submitted by the IOPC Funds Secretariat reporting on the work carried out in cooperation with IMO and regional organisations to promote adoption and support for implementation of the 1992 CLC, the 1992 Fund Convention and the 2003 Supplementary Fund Protocol.
Professor David Attard, Director of the IMO International Maritime Institute(IMLI) reported on the activities of IMLI for the year 2017 in which 38 Graduates received their degree, joining a network of 739 IMLI graduates from 135 States. The Committee noted that a new post-graduate programme has been launched in concert with the World Maritime University (WMU), whilst the prize for dissertations and maritime legislation drafting projects undertaken by all IMLI students was awarded this year to Lieutenant Liliana Diaz Medina (MEXICO) for her work entitled ‘The Effectiveness of Current International Ship-Boarding Provisions to combat Crime at Sea’. The Committee congratulated Lieutenant Medina who was attending the session.
REVIEW OF THE STATUS OF CONVENTIONS AND OTHER TREATY INSTRUMENTS EMANATING FROM THE LEGAL COMMITTEE. Following the deposit of instruments of ratification by CANADA and TURKEY, the HNS Protocol now has three Contracting States prompting a reminder that, at the time of accession, the data on total quantities of contributing cargo liable for contributions received during the preceding calendar year is also required. The Committee noted that the SUA Convention and SUA Protocol of 1998 remain the most widely ratified treaties that have emanated from its work, followed by the 1992 CLC Protocol. The good progress with the 2007 Nairobi Wreck Removal Convention which has received seven further ratifications since LEG 104, was also noted.
MEASURES TO PREVENT UNLAWFUL PRACTICES ASSOCIATED WITH THE FRAUDULENT REGISTRATION OF SHIPS. This item stemmed from a proposal to add a new output to the Legal Committees work programme which enjoyed general support. Points of particular interest emerging from discussion in Plenary, included : the need for clarification of the new output so that it does not duplicate what is being done in the area of UNCLOS; the need for the scope of the problem to distinguish between fraudulent certificates and fraudulent registries; the need to examine fraudulent registration from different angles, namely registration in a flag State where no international registry exists and the issuance of fraudulent certificates i.e. falsified certificates of registration and the fraudulent means to obtain a legitimate certificate of registration; also, a study of the cases of fraudulent use of some States’ flags as well as their geographical distribution. In conclusion, the Committee agreed to :
- Include a new output on Measures to prevent unlawful practices associated with the fraudulent registration and fraudulent registries of ships in the 2018-2019 biennial agenda;
- Invite concrete proposals to LEG 106 for consideration;
- Include the item in the provisional agenda for LEG 106; and
- Request the Secretariat to conduct a study on the cases received and to provide information on the capabilities of GISIS to address the issue, to potentially include contact points, sample certificates and a listing of registries for submission to LEG 106.
MARITIME AUTONOMOUS SURFACE SHIPS(MASS). Document LEG 105/11/1 comprising 10 Signatories proposed a new output for a regulatory scoping exercise and gap analysis of the conventions under the purview of the Legal Committee, to establish the extent to which the international regulatory framework should be modified to integrate the new and advancing technology of MASS. Following an in-depth discussion on the proposal, broad support was expressed for the new output bearing in mind comments such as :
- The regulatory scoping exercise and gap analysis should be limited to the conventions under the purview of the Legal Committee to complement the work undertaken by the Maritime Safety Committee (MSC);
- LEG discussions should be based on the definitions, terminology and scope (e.g. regarding the different levels of automation) which will be agreed by MSC;
- LEG needed to ensure that there is no gap or discrepancy in the international legal framework related to MASS;
- The work will be complex, calling for good coordination with other IMO bodies, in particular MSC, to ensure alignment throughout the organization. The interdivisional task force established within the Secretariat will greatly assist in this respect;
- The issue of MASS raises various questions in relation to UNCLOS;
- The significant impact MASS will have on seafarers, i.e. the human element and Seafarers’ welfare must be included in the Committee’s deliberations; and
- Before undertaking the scoping exercise, the Committee needs to consider the desirability of MASS, as no State has so far voiced its willingness or readiness to register MASS, to allow MASS into its waters or ports or to grant MASS the right of safe passage.
The Committee also noted the information provided by the Comite Maritime International (CMI) concerning their work related to unmanned shipping in which it has set up an International Working Group (IWG) on unmanned ships to study the current international legal framework and consider what amendments and/or adaptions and/or clarifications may be required in relation to unmanned ships. So far, the IWG has analysed eight IMO conventions, SOLAS, MARPOL, COLREG, STCW, FAL, SAR, SUA, and SALVAGE.
In conclusion, the Committee agreed to include a new output entitled ‘Regulatory scoping exercise and gap analysis of conventions emanating from the Legal Committee with respect to Maritime Automomous Surface Ships (MASS)’ in the biennial agenda for LEG 106, with a target completion year of 2022. Concrete proposals and comments on the new output for a plan of action at LEG 106 were invited, taking into account the outcome of MSC 99 and MSC 100, so that LEG 106 will be able to start work on the new output without undue delay.
NEW GISIS MODULE ON NATIONAL MARITIME LEGISLATION. The Secretariat reported on a new GISIS module on National Maritime Legislation in the context of resolutions A.1029(26) on Global Integrated Shipping Information System (GISIS) and A.1074(28) on Notification and circulation through GISIS. With this development, facilities will be available for Contracting Governments or Parties to directly upload their national maritime legislation to fulfil their obligation to communicate national legislative texts as required under the provisions of the relevant IMO conventions which do not contain the mandatory reporting or communication of information requirements.
Captain Paddy McKnight End