The IMO Legal Affairs Committee held its 106th Session (LEG 106) from Wednesday 27 through Friday 29 March 2019. Mr Volker Schofisch (GERMANY) chaired the meeting assisted by Vice-Chair, Ms Gillian Grant (CANADA), both of whom were re-elected for 2020.
The meeting was attended by representatives from 84 Member States, 2 Associate Members of IMO, 3 United Nations and Specialised Agencies, 4 Inter-Governmental, 20 Non-Governmental, and 2 IMO Training Institute organisations.
Two Working Groups (WG) were formed and chaired as follows:
WG1 Unlawful Practices re fraudulent registration and registries of ships, Mr S Hubchen (USA)
WG2 Scoping exercise on Maritime Autonomous Surface Ships, Ms G Grant (CANADA)
Matters of interest to InterManager members are as follows:
ADDRESS BY THE IMO SECRETARY GENERAL. The Secretary General of IMO, Mr Kitack Lim, welcomed delegations to the 106th session of the IMO Legal Committee following which he expressed condolences for recent tragic events: the Ethiopian plane crash, the New Zealand terrorist attack, flooding in east Africa and the ferry accident in Iraq, ending with a moment of silence in memory of all those who lost their lives in these tragedies. He next highlighted the positive impacts of Search and Rescue efforts using systems developed by IMO in the safe rescue and return to port of the passengers on board the cruise ship Viking Sky off the coast of Norway which lost power in 8 metre seas and ferocious winds.
Mr Lim reminded delegates that the theme for this year’s World Maritime day is “Empowering women in the maritime community” and which will be celebrated at IMO Headquarters on 26 September preceded by a parallel event in Cartagena, Colombia from 15 to 17 September.
Turning to items on the agenda for the meeting, some of the key technical issues in his view to be considered included :
A new output on fraudulent registrations and registries of ships – including a study by the Secretariat to use GISIS in addressing the issue;
Starting work on the MASS scoping exercise of LEG conventions;
Fair treatment and abandonment of seafarers, in particular the dramatic increase in the number of cases; and,
Emphasising the importance of the 2010 HNS Convention, in which he noted that only eight more States are needed to ratify or accede to the 2010 HNS Protocol.
In concluding his address, the Secretary General expressed confidence in the success of the Committee’s deliberations and wished it well.
FACILITATION OF THE ENTRY INTO FORCE AND HARMONISED INTERPRETATION OF THE 2010 HNS PROTOCOL. The Committee recalled that, with the entry into force of the Nairobi Wreck Removal Convention on 14 April 2015, the 2010 HNS Convention is the remaining gap in the global framework of liability and compensation conventions. It was noted, with appreciation, that Denmark had deposited an instrument of ratification of the Protocol on 28 June 2018, thereby bringing the number of Contracting States to four, each of which has more than two million units of gross tonnage. It was also noted that in order to assist Member States in their work towards the desired further ratifications of the Protocol (at least eight necessary), a successful two-day workshop was staged by IMO in cooperation with the IOPC Funds on 26 and 27 April 2018.
With regard to domestic implementation of the 2010 HNS Convention, Canada provided an overview of key issues and considerations for potential ratifying States based on their experience and offered solutions to the most common issues faced during the reporting stage.
Following discussion in Plenary, the Committee expressed its appreciation to the delegation of Canada for its submission and noted the efforts on reporting relevant HNS contributing data by Member States that had already ratified or were in the process of doing so in the near future. It was felt that an update of the statistics on HNS related claims requested of the P & I Clubs for the next session will assist Member States to ratify and bring into force the 2010 HNS Protocol earlier than would otherwise be the case.
Finally, the IOPC Funds Secretariat reported on administrative preparations for the setting up of the HNS Fund and their intentions regarding preparations for the first HNS Assembly to be convened by the IMO Secretary-General, in accordance with article 43 of the 2010 HNS Convention, once all entry-into force criteria have been met. The involvement of the P & I Clubs offered by them in the preparatory work of the IOPC Funds was welcomed.
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. The Committee recalled that the update on the IMO/ILO joint database of abandonment of seafarers was of utmost importance in solving urgent cases of abandonment, and noted that IMO ensured that all information received from flag States and port States, as well as from seafarer States, was shared for verification before being released for public access on the database website. As of 31 December 2018, there were 366 abandonment incidents listed in the database since it was established in 2004, affecting 4,866 seafarers. Of those incidents, 175 cases were resolved, 77 cases were disputed and 52 cases were inactive. There are 52 unresolved cases and from 2011 to 2016, the number of cases per year ranged from 12 to 19.
Of particular note, the number of cases reported in 2017 and 2018 increased dramatically, for in 2017, there were 55 cases reported, 14 of which were resolved that year and 8 the following year. In 2018, the total number of reported cases was 44 and of those, 15 cases have been resolved as of 31 December 2018. Of the cases reported in 2018, 8 involved flag States which had not ratified MLC 2006 and no additional cases of those reported in 2018 have been resolved since.
This year, as of March 2019, there have been 13 cases reported, all of which require resolution.
A discussion ensued concerning a number of specific abandonment cases following which the Committee considered two documents, one by ICS inviting the Committee to consider ways in which it could address the current challenges faced by those affected by abandonment, and the other by ITF reporting on the implementation of the requirement for financial security in respect of seafarer repatriation costs and liabilities. Consideration was also given to an ILO submission about the reporting of abandonment cases to the IMO/ILO joint database, in particular, into creating a list of competent authorities and organisations that could assist in their resolution. Responding, the Committee noted that stakeholders not entitled to report abandonment cases and wishing to liaise with flag, port or labour-supplying States that are members of IMO or ILO, may extract the relevant information from the MLC database, which contains the contact details of the competent authorities representing the majority of States that have ratified MLC 2006.
During discussion of this item, the following views were expressed:
- In light of progress made in some cases, the status of an abandonment case should be changed and considered as resolved;
- Flag States and port States should inform and be informed in a timely and proper manner of abandonment cases;
- Abandonment cases could be reported by NGO’s not having consultative status through those NGOs who do;
- There is a lack of funding for skeleton crews when seafarers need to be repatriated;
- Guidelines for cooperation between flag and port States to resolve abandonment cases need to be established through ILO and IMO to expedite resolution;
- Abandoned fishermen should be separated from abandoned seafarers in the database;
- The International Group of P & I Clubs had been involved in 41 abandonment cases after the entry into force of the 2014 amendments to MLC 2006 and the vast majority were effectively resolved within a reasonable timeframe in cooperation with ITF;
- There is a need for a more effective way of obtaining accurate information in consideration of abandonment cases as resolution is often at the mercy of the original evidence;
- Under applicable MLC 2006 clauses, the port State has an obligation to ensure that seafarers are able to exercise their right to repatriation;
- MLC 2006 does not recognise the reimbursement of the costs of the crew replacement by the insurer, and, therefore, such claims are not covered by P & I Clubs;
- The primary responsibility of the flag State to repatriate seafarers is in conflict with interests of harbour safety and keeping costs low, thus requiring further discussion; and,
- Some insurance companies should be made more aware of their obligations under the 2014 amendments to MLC 2006 and further consideration is needed concerning the effects of the lapse and related problems relating to financial security.
FAIR TREATMENT OF SEAFARERS IN THE EVENT OF A MARITIME ACCIDENT. The Committee recalled that, at its 103rd session, in view of the different approaches that States were taking when implementing the 2006 Guidelines of fair treatment of seafarers in the event of a maritime accident (the Guidelines), the ITF was preparing guidance. ITF further informed the Committee of the outcome of the first regional meeting for Asia on the fair treatment that took place on 13 November 2018 in Manila, Philippines, including the Manila Statement, in which participants agreed to raise further awareness of the Guidelines and to develop training, human capacity, and to enhance cooperation among States.
REGULATORY SCOPING EXERCISE AND GAP ANALYSIS OF CONVENTIONS EMANATING FROM THE LEGAL COMMITTEE WITH RESPECT TO MARITIME AUTONOMOUS SURFACE SHIPS (MASS). The Committee recalled that, at its last session, it had agreed to a new output with which to achieve the MASS task. In addition, concrete proposals were invited to this session for consideration, taking into account the outcome of MSC 99 and 100. Five documents were submitted as follows:
LEG 106/8 (Secretariat) providing a list of mandatory instruments under the purview of the Legal Committee, which may be considered as part of the LEG regulatory scoping exercise for the use of MASS;
LEG 106/8/1 (Secretariat) reporting on the outcome of MSC 99 and MSC 100 regarding the regulatory scoping exercise of instruments related to maritime safety and security for the use of MASS;
LEG 108/8/2 (Canada) proposing a framework, methodology and work plan for the Legal Committee’s regulatory scoping exercise on MASS and highlighting the specific adjustments needed to be made to the MSC framework and methodology in order to be better suited to analysing LEG instruments in a timely and effective fashion;
LEG 106/8/3 (China) suggesting the establishment of an intersessional correspondence group and proposing that LEG should focus on two levels of autonomy only (manned and unmanned MASS); and,
LEG 106/8/4 (Republic of Korea) proposing modifications to the framework, methodology and procedures developed by MSC to make them better suited to the LEG regulatory scoping exercise on MASS, and discussing the role of the remote operator within the liability regime.
The Committee noted the information provided in document LEG 106/8, also 8/1 and invited the Secretariat to continue updating the Committee on the progress of MSC regarding MASS. In considering the framework and methodology of the LEG regulatory exercise, there was broad support for the proposals set out in the other three documents listed above. In order not to complicate its work, it was agreed to use the MSC methodology as the basis with appropriate adjustments to accommodate the specificities of the conventions under the purview of the Legal Committee. Further, China’s proposal to focus on two levels of autonomy was agreed as also was the need to adopt a common approach together with the other committees of the Organisation.
The Committee concluded that the exercise should also include older versions of the conventions but not UNCLOS and MLC 2006, both of which might need to be revisited in the future. Usage of the web platform developed by MSC was supported and it was agreed that the role of the remote operator within the liability regime which is outside the scope of this exercise, would need to be considered by the Legal Committee at some future stage.
Following these fairly extensive discussions, the Working Group (WG2) was formed and instructed to finalise the list of LEG instruments, together with the framework, methodology, plan of work and procedures for the exercise; also to consider whether to recommend an intersessional Correspondence Group and if so, develop terms of reference.
In considering the subsequent report submitted by WG2, the Committee approved it in general and in particular:
- Approved the framework for the LEG regulatory scoping exercise, including the plan of work and procedures;
- Invited Member States and observer organisations willing to lead or support the initial review of specific instruments to inform the Secretariat by 30 April 2019;
- Requested the Secretariat to assist with certain tasks during the LEG regulatory scoping exercise, such as pre-populating the information, assigning relevant permissions to users and dealing with other administrative issues, as appropriate; and,
- Stated that there is no need for an intersessional correspondence group to further progress the work on MASS.
PIRACY. The Secretariat introduced document LEG 106/9 which reported on developments related to piracy and armed robbery against ships which have arisen since the last session of the Legal Committee. This showed that there have been 203 reported incidents of piracy and armed robbery against ships worldwide in 2017, the lowest for over 20 years. The document informed the Committee that the revised Best Management Practices to Deter Piracy and Enhance Maritime Security in the Red Sea, Gulf of Aden, Indian Ocean and Arabian Sea (BMP 5) was approved by MSC 100, together with the new Global Counter Piracy Guidance for Companies, Masters and Seafarers; and the updated guidance for protection against piracy and armed robbery in the Gulf of Guinea region..
The document also summarises the considerations by MSC of the issue of floating armouries. In which it reports on the deliberations of a legal conference sponsored by the United Nations Office on Drugs and Crime (UNODC) last June.
In addition, the document reported on the status of the Jeddah Amendment to the Djibouti Code of Conduct 2017, which now has 16 signatories, and also provides an overview of the decisions taken at the twenty-first session of the CGPCS (Contact Group on Piracy off the Coast of Somalia) in Nairobi from 12 to 13 July 2018.
Finally, the document updated the Committee on the amendments to the Code of the Maritime Labour Convention (MLC 2006) providing for the protection of seafarers’ wages and other entitlements when they are held captive on or off the ship as a result of acts of piracy or armed robbery against ships, which were adopted by the Special Tripartite Committee (STC) established under the MLC, in April 2018. In accordance with these amendments, wages and other entitlements under the seafarers’ agreement, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated. The amendments are expected to enter into force on 26 December 2020.
In addition to the issue of floating armouries referred to above, the representative of UNODC informed the Committee that they were also dealing with other issues such as terrorism at sea, privately contracted armed security personnel and the issue of stateless vessels on which they are preparing legal guidance as to criminal jurisdiction and international judicial cooperation in preparation for the second annual Maritime Law Expert Conference with the involvement of the IMO.
IMO INTERNATIONAL MARITIME LAW INSTITUTE (IMLI). The Committee considered the Secretariat report on IMLI’s activities for the year 2018. It was noted that, by the end of the academic year 2017-2018, a total of 949 students from 140 States and territories worldwide have undergone studies in all of IMLI’s programmes and courses, of which 781 students from 136 States successfully completed studies within IMLI’s Master of Laws (LL.M.) programme and 9 students from 9 States and territories had completed studies within IMLI’s Master of Humanities (M.HUM.) programme. Currently, 40 students from 28 States are pursuing studies under the LL.M programme and seven students from seven States under M.Hum.
The importance of IMLI’s contribution to building expertise and to the development of maritime law was acknowledged and the Committee congratulated the Institute in celebrating 30 years of success whilst also expressing its appreciation to the Maltese Government for hosting IMLI.
MEASURES TO PREVENT UNLAWFUL PRACTICES ASSOCIATED WITH THE FRAUDULENT REGISTRATION AND FRAUDULENT REGISTRIES OF SHIPS. It was recalled that during discussions at LEG 105, a number of interventions had suggested that a multi-pronged approach would be necessary to effectively address this [fraudulent] issue and that the solution would involve making more accurate information about the status of a nation’s registry widely and quickly available to shipowners and insurers, as well as to public officials. Further, it was suggested to use the Global Integrated Shipping Information System (GISIS) as a tool to include a list of national bodies which were authorised to issue certificates, so that shipowners would be assured that the flag actually existed and had been verified and approved by the competent authorities with IMO; and that GISIS should be a platform to share information and transfer expertise and experience about registers having problems with fraudulent practices. The Secretariat was instructed to conduct a study on cases received which reported fraudulent use of a flag or of a registry and to submit this information to LEG 106, also to provide information on the capabilities of GISIS to address the issue, to potentially include contact points, sample certificates and a listing of registries.
Seven documents were submitted for the Committees consideration, two by the Secretariat, and one each by the United States, Ukraine, the United Arab Emirates and the United Republic of Tanzania.
In considering the Secretariat document LEG 106/7, the Committee noted recent discussions between the Secretariat and IHS Markit (IMO Number managers) to improve the display of information on ships which had been confirmed by the Administration as NOT legally registered under that Administration’s flag. In such a case, a “false flag” would be shown for a particular ship in the module on Ship and company particulars in GISIS, whereas “no flag” or “unknown flag” were displayed in the past. This status would change as and when the ship becomes registered under a new flag. It was also noted that the Organisation has taken steps to thoroughly review requests to access IMO web accounts and check their authenticity, as IMO had been deceived by individuals purporting to represent Governments in order to gain access to IMO web accounts thus calling for a more robust procedure to be put in place in order to prevent the recurrence of such a situation.
In the ensuing discussion, there was broad support for the creation of a comprehensive database of registries, a “register of registries” containing accurate and publicly accessible, up-to-date information.
UNODC provided information on its legal framework and extensive work to prevent, and counter, transnational organised crime at sea, particularly in relation to commonly interlinked practices such as: piracy and armed robbery at sea; smuggling of migrants and human trafficking; illicit drug trafficking; and organised crime within the fishing industry. UNCTAD (UN Conference on Trade and Development)
referred to its previous collaboration with IMO, asserting that addressing fraudulent practice effectively, is vital to promoting maritime safety, security and environment protection. UNCTAD also stressed that as stakeholders, shippers and charterers should have access to information concerning registration and registries.
Following Plenary debate during which specific terms of reference were agreed, the Committee established WG 2 on Measures to prevent the fraudulent registration and fraudulent registries of ships. In considering the Working Group’s subsequent report, the Committee approved it in general, and in particular;
- Requested the Secretariat to develop a new function on Registries of ships within the Contact Points module in GISIS;
- Approved a draft Assembly resolution on Measures to prevent the fraudulent registration and fraudulent registries of ships;
- Approved a draft LEG circular on Recommended best practices to assist in combatting fraudulent registration and fraudulent registries, informing MSC accordingly;
- Approved the establishment of an intersessional correspondence group, also its terms of reference; and,
- Endorsed the recommendation of the Group that IMO should work with the United Nations Security Council to establish an easily searchable database, by IMO number and vessel name, of vessels currently the subject of, or designated pursuant to, United Nations Security Council resolutions.
WORK PROGRAMME. The Committee considered the proposal for a new output to develop a Unified Interpretation (UI) on the test for breaking the owner’s right to limit liability under the IMO liability and compensation conventions. Despite the fact that UIs are used frequently at IMO in relation to technical conventions and may not be an appropriate way to address this issue, the argument (amongst other supporting points) that the UI would achieve consistency and uniformity, won the day and in conclusion, the Committee agreed to:
- Include a new output on “Unified Interpretation on the test for breaking the owner’s right to limit liability under the IMO conventions” in the 2020-2021 biennial agenda of the Legal Committee, with a target completion year of 2021;
- Invited concrete proposals to LEG 107 on the scope of the work on the new output; and,
- Included the item in the provisional agenda for LEG 107
FAIR TREATMENT OF SEAFARERS ON SUSPICION OF COMMITTING MARITIME CRIMES. A submission by Georgia, Ukraine and ITF provided information and justification for the creation of an IMO/ILO/ITF working group to develop guidelines and recommendations for the prevention of seafarers’ involvement in criminal activities at sea, and violations of seafarers’ rights when detained on suspicion of committing maritime crimes. There was broad support for the proposal, not least by the representative of ILO, and the Committee requested the Secretariat to coordinate with ILO on the potential activation of such a group, also to provide relevant information at LEG 107, which should be considered in conjunction with any proposal for a new output.
MEETING TIME IN THE NEXT BIENNIUM. The Committee agreed that two meetings should be adequate for the 2020-2021 biennium and, in view of the current and projected workload, agreed that the next session should be held during five meeting days with eight full sessions of interpretation, and that the budgetary implications of the increased meeting time required would be addressed at C 122.
Captain Paddy McKnight