The IMO Legal Affairs Committee held its 107th Session (LEG 107) remotely (using the Kudo platform) from Friday 27 November through Tuesday 1 December 2020. Mr Volker Schofisch (GERMANY) chaired the meeting assisted by his Vice-Chair, Mrs Gillian Grant (CANADA), both of whom were re-elected for 2021.
Credentials were presented by 93 Member States for the meeting supported by a number of Associate Members and representatives from UN specialized agencies and other entities. In addition, Intergovernmental organisations and Non-governmental organisations were also well represented.
In his traditional welcoming address, the Secretary General of IMO, Mr Kitack Lim, outlined the most important issues to be discussed. These included items on “Matters relating to the work of the Legal Committee and the COVID-19 pandemic” and the related agenda item on “Fair treatment of seafarers and the abandonment of seafarers”, stressing that the well-being of over 1.6 million seafarers working on board seagoing ships to be his priority. He viewed seafarers as the silent heroes and collateral victims of the COVID-19 pandemic, as travel restrictions have left hundreds of them stranded on ships, or unable to join ships, and pledged that IMO would continue to seek solutions to put an end to the crisis. On a related subject, the Committee will be invited to consider two proposals for new outputs, one on “Fair treatment of seafarers detained on suspicion of committing maritime crimes” and the other, the need to develop a set of guidelines for port State authorities on how to deal with seafarer abandonment cases.
He felt that another important topic to be discussed concerned unlawful practices associated with the fraudulent registration and fraudulent registries of ships, both of which flout key legal principles embedded in UNCLOS.
Finally, he expected that the facilitation of the entry into force, and harmonization, of the 2010 HNS Convention would also be discussed and encouraged the governments of Member States to ratify the Convention and bring it into force.
Mr Lim then wished the Committee good luck in their deliberations.
Matters of interest to InterManager members are as follows:
FACILITATION OF THE ENTRY INTO FORCE AND HARMONISED INTERPRETATION OF THE 2010 HNS PROTOCOL. The 2010 HNS Convention is the only remaining gap in the global framework of liability and compensation conventions. However, South Africa recently deposited an instrument of accession to the Protocol, thereby bringing the number of Contracting States to five, four of which have more than two million units of gross tonnage each. Seven more ratifications or accessions with the required contributing cargo are needed therefore although encouragingly, the Secretariat has been informed of a coordinated effort by Belgium, Germany and the Netherlands to ratify the Protocol simultaneously and deposit their instruments of ratification with IMO in London in 2022. An analysis of claims data on the list of HNS incidents collated by the P & I Clubs involving the carriage of HNS from January 2010 to September 2019 was provided, further to that submitted to the IMO 2010 International Conference on HNS for claims arising from incidents in the period 2002 to 2010, enabling a comparison of the two data sets.
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 PROGRESS OF AMENDMENTS TO THE ILO MARITIME LABOUR CONVENTION, 2006. Five documents were discussed under this item. Document LEG 107/4 by the ILO and IMO Secretariats informed the Committee that all cases reported after 1 January 2004 were recorded on the database and that in 2019 the total number of reported cases was 40, of which six had been resolved as of 31 December 2019. In 2020, a total number of 65 new cases were reported of which 18 have been resolved whilst as of 30 November 2020, of the spike of 62 new cases in 2020, only 18 had been resolved. About 17 of the cases reported since 13 December 2019 were related to consequences of the COVID-19 pandemic that further exacerbated the crew change situation of seafarers. ITF’s submission contained an analysis of abandonment cases reported by them to the IMO/ILO joint database for the period from 1 January to 13 December 2019 whilst ICS provided information about the current global abandonment situation, also current concerns and, as one of the ways to address the current challenges faced by those affected by abandonment, encouraged further ratification of MLC 2006.
A prolonged discussion followed and many views were expressed, too many to mention in this short report. However, much of the discussion was encapsulated by the intervention of ICS stating that their document LEG 107/4/3 reflected the global situation of seafarers as of late last year, but that it is out of date given the increase in cases in recent months. Furthermore, there is a need to have accurate reports and updates to promptly reflect the present abandonment cases which affect seafarers and their families. Most ships appear to have financial security certification required by the 2014 MLC amendments, which entered into force in 2017. However there is a gap in coverage for vessels of flag States still to ratify MLC 2006. In addition, there are serious concerns about flag and port States reportedly not supporting the repatriation of abandoned seafarers on the pretext of safe manning requirements on board vessels.
Following this discussion, the Committee:
- Noted the information provided in submitted documents;
- Reminded Member States of the importance of resolution A.930(22) on Guidelines in the provision of financial security in the case of abandonment of seafarers;
- Highlighted the existence of the IMO/ILO joint database;
- Encouraged Member States to report incidents of abandonment to the database when they occur in their ports or on vessels flying their flag, and to advise ILO and IMO of any information relating to cases listed in the IMO/ILO database; and,
- Encouraged further ratification of MLC 2006.
Member States were urged to take all necessary action to reduce the number of abandonment cases, in particular those exacerbated by the COVID-19 pandemic.
To round off this item, the Committee discussed a submission by Ukraine commenting on the base document (LEG 107/4) as well as supplementary information to promote and facilitate the reporting of abandonment cases to the IMO/ILO database and their prompt resolution, also to strengthen the role of flag States and port State control (PSC) in the process. Following this, the Committee agreed:
- To add information on the financial security provider in the standard reporting form;
- Not to complement the programme of the IMO Member State Audit Scheme with regard to monitoring of compliance under MLC 2006; the response by the flag State to report on ships operating without financial security and/or abandoned by the shipowner; the regularly updated contact details of the flag State officials responsible for handling claims of seafarers onshore; and, the provision of information on national legislation regarding MLC 2006.
- To request the IMO and ILO Secretariats to conduct an additional analysis on the effectiveness of regulation 4.2 of MLC 2006 with regard to shipowners’ liability for the payment of all contractual claims for personal injuries to, or death of, seafarers; and to refer the analysis to the Special Tripartite Committee (STC) of MLC 2006 of ILO in 2021 to LEG 108;
- To invite the III Sub-Committee to provide advice on the provision of information of insurance certificates, their validity period and contact information of financial security providers into the PSC Ship Inspection Report, also the conduct of a Concentrated Inspection Campaign (CIC) on financial security regarding 2014 MLC amendments;
- To invite the IMO and ILO Secretariats to provide further information to LEG 108 regarding supplementing the joint IMO/ILO database with modules on: contact information of competent authorities and organisations that could assist in resolving cases; contact details of financial security providers; updated list of vessels with information on financial security provider, terms of validity of the certificate or other documentary evidence of financial security; and, contractual claims for personal injury to, or death of, seafarers and related shipowners’ liability; and,
- To invite the Member States and NGOs to conduct additional training and information campaigns.
ADVICE AND GUIDANCE IN CONNECTION WITH THE IMPLEMENTATION OF IMO INSTRUMENTS. Document LEG 107/6 provided information on problems encountered in some oil pollution incidents involving insurers that were not members of the P & I clubs, such as inconsistencies between the documents they provide and the underlying insurance policies, insolvency of the non-IG insurer and uncooperative action of such insurers. Two courses of action were considered, namely:
- Revision of the Guidelines for accepting insurance companies, financial security providers and the International Group of Protection and indemnity Associations (P & I Clubs); or,
- The development of educational and practical information sources on the responsibilities of shipowners, insurers or other financial security providers, and States regarding IMO liability conventions.
In conclusion, the Committee invited the co-sponsors of the document to submit a proposal to LEG 108 on the data collection system, aimed to address the need for a consistent, transparent and evidence-based approach to future amendments of limits of liability.
MEASURES TO PREVENT UNLAWFUL PRACTICES ASSOCIATED WITH THE FRAUDULENT REGISTRATION AND FRAUDULENT REGISTRIES OF SHIPS. The Committee recalled that the Assembly (A 31) adopted resolution A.1142(31) on Measures to prevent the fraudulent registration and fraudulent registries of ships containing the Procedure for the communication of information to the Organisation on Registries of ships in the Contact Points module in GISIS approved by LEG 106. A correspondence Group was established by LEG 106 on ‘Further Measures’, under the coordination of the USA and, based on the TORs given, the CG was instructed to submit a report to LEG 107. In the event, the CG did not reach an agreement regarding the definitions central to their work and more discussion will be necessary to reach a consensus given that additional proposals were made that could not be adequately considered due to time constraints.
The Committee expressed its appreciation to the CG for its work and supported the continuation of the remote work intersessionally under the following terms of reference:
Taking into consideration all documents submitted to LEG 107, as well as the comments, proposals and decisions made by the Committee, to work by correspondence, with the option of meeting virtually, and to:
- Consider the definitions of “registration” and “registry” and advise the Committee accordingly;
- Consider the remaining recommendation, proposals and issues in documents LEG 106/7/2, plus /4 and /5 and advise accordingly;
- Taking into account the outcomes above, prepare the text of a resolution on Encouragement of Member States and all relevant stakeholders to promote concrete actions for the prevention and suppression of fraudulent acts in the maritime sector (exploring draft text in the annex to document LEG 107/7) for adoption or approval by the Committee, and thereafter submission to C 126 and/or A 32 for consideration and adoption, as appropriate;
- Taking into account the outcome of the above points, consider the proposed definitions of “fraudulent registration” and “fraudulent registry” and advise the Committee accordingly;
- Identify items, as necessary, for further consideration by the Legal Committee at its next session and develop a work plan; and,
- Submit a report to LEG 108.
REGULATORY SCOPING EXERCISE AND GAP ANALYSIS OF CONVENTIONS EMANATING FROM THE LEGAL COMMITTEE WITH RESPECT TO MARITIME AUTONOMOUS SURFACE SHIPS (MASS). Discussion on this item was postponed to LEG 108 pending discussion by the Marine Safety Committee.
UNIFIED INTERPRETATION ON THE TEST FOR BREAKING THE OWNER’S RIGHT TO LIMIT LIABILITY UNDER THE IMO CONVENTIONS. The Committee recalled that at its last session, it had agreed to include a new output on this matter in its 2020-2021 biennial agenda with a target completion year of 2021. Concrete proposals on the scope of the work on the new output had also been invited and the P & I Clubs offered to coordinate informal discussions on the proposals for LEG 107. Document LEG 107/9 reported on the intersessional work since LEG 106 on the development of a Unified Interpretation (UI) on the test for breaking the owner’s right to limit liability under the IMO conventions (the test) and the review of the Travaux Preparatoires of the IMO liability and compensation conventions as well as other historical papers and documents that identified consistent themes and principles highlighting the virtually unbreakable nature of the test. In its document LEG 107/9/1, the Comite Maritime International (CMA) endorsed the analysis of the intersessional informal group on the development of a UI on the test and the proposed actions.
There followed a long discussion in which the delegations that spoke regarding the vehicle for the adoption of the UI were of the opinion that, based on the analysis in document LEG 107/9/2, a resolution of a conference of States Parties would carry more legal weight. In this context, the Secretariat deemed it possible to hold a conference of the Parties in conjunction with a meeting of the Legal Committee and that the Committee would transition into a conference of the Parties of the relevant conventions in order for them to adopt the UI, noting that the resolution of the Parties would emanate from the Legal Committee.
The Committee noted the concerns raised by some delegations that there would be a risk that the interpretation might not be shared by all Parties and that, therefore, the intersessional group and LEG 108 should carefully consider the format for adoption of any draft UI. It was thus agreed that the vehicle for the adoption of the UI should be further considered intersessionally.
Subsequently, the Committee established a remote intersessional group under the coordination of Georgia to develop the text of a draft UI on the test for breaking the owner’s right to limit liability under the IMO conventions, reflecting the decisions taken at LEG 107 on the principles of the test. It was also instructed to develop the text, and further consider the vehicle for the adoption, of a draft resolution of either a Conference of State Parties, the Assembly, or the Legal Committee. A report to LEG 108 was stipulated with a view to finalisation of the UI, the text of the resolution and the vehicle for the resolution at that session.
MATTERS RELATING TO THE WORK OF THE LEGAL COMMITTEE AND THE COVID-19 PANDEMIC. In document LEG 107/10/1, the Secretariat provided an overview on the work of the IMO Seafarer Crisis Action Team (SCAT) which was established by the Secretary-General in April 2020 in response to the growing concern over the crew change crisis caused by the COVID-19 pandemic. In the ensuing discussion, the following views of interest were expressed:
- The active engagement of SCAT in the crew exchanges around the world was much appreciated, welcomed and supported;
- Policy directions from the S-G were very helpful in developing national policies and approaches to crew changes;
- The facilitation of safe crew changes is a shared responsibility of all stakeholders in the maritime industry, including flag States, port States and home countries of seafarers;
- The COVID-19 crisis has proven that maritime transport is essential to the world economy and therefore the designation of seafarers as key workers is of crucial importance;
- Seafarers are entitled to fair and decent conditions of work and MLC 2006 should be strictly observed and enforced;
- Point 2 of SCAT’s terms of reference (TORs)should be adjusted as such communication should come from the Secretary-General;
- Regarding point 4 of SCAT’s TORs, delegates felt that it would be good to be appraised of the United Nations General Assembly views on crew changes;
- The number of ports where crew changes are allowed is still too low;
- The inclusion in charterparty clauses preventing crew changes is contrary to good practice and the principles of corporate social responsibility, and undermines the efforts being made to facilitate crew changes to ensure the safety of the crew and of the ship;
- The charterparty clauses must not prohibit crew changes as the charterers enforcing such clauses act illegally; and,
- It is crucial that States cooperate to achieve a sustainable system which will allow seafarers to effectively travel to and from their home countries, to and from ships.
The Secretariat clarified that the activities of SCAT, as explained in para 4 of document LEG 107/10/1, has evolved over time and any interaction at the ministerial level is conducted by the Secretary-General personally; he has also been working with the United Nations Secretary-General, a very interested partner in resolving the crew changes crisis and who has been very supportive of IMO and ILO efforts.
The delegation of Belgium informed the Committee that all relevant national and regional authorities in Belgium have adopted a protocol for crew changes under which crew changes for all ships and seafarers of all nationalities are allowed in Belgium ports. Belgium then offered to share the protocol with interested delegations.
ITF requested the Committee to instigate cooperation between Member States to implement the framework of protocols ensuring safe ship crew changes as well as encouraging Member States to implement systems permitting shore leave to be taken, ensuring medical care for seafarers and recognising seafarers as key workers.
PIRACY. Discussion on this item was deferred to LEG 108.
WORK PROGRAMME. The Committee noted that two proposals for new outputs had been submitted to this session of the Legal committee as follows:
- Fair treatment of seafarers detained on suspicion of committing maritime crimes; and,
- Development of guidelines for port State authorities on how to deal with seafarer abandonment cases.
Fair treatment of seafarers detained on suspicion of committing maritime crimes. The Committee considered document LEG 107/14 submitted by four Flag States and seven NGOs, which included InterManager. Following an in-depth discussion, the Committee agreed that Fair treatment of seafarers detained on suspicion of maritime crimes is an issue that needs to be addressed by the Legal committee and expressed its general support for the proposed new output. Our commenting document in support of /14 was well received as was also an intervention to update the Committee on the plight and health of Captain Lasota, Master of the UBC SAVANNAH. Sadly, he has been languishing in a Mexican jail since July 2019 for allegedly smuggling cocaine, discovered when unloading the ship’s cargo of several thousand tons of coal, under which the cocaine had been placed.
In conclusion, the Committee agreed to:
- Include a new output on Fair treatment of seafarers detained on suspicion of committing maritime crimes in the 2020-2021 and 2022-20323 biennial agendas of the Legal Committee with a target completion year of 2023;
- Invite concrete proposals to LEG 108 for consideration and to take a decision on the scope of the new output after detailed consideration of any proposed measures; and,
- Include the item in the provisional agenda for LEG 108.
The Committee noted document LEG 107/14/3 by the Secretariat regarding coordination with ILO on the potential activation of a joint working group on this subject. Following discussion, the committee agreed to request, as a matter of urgency, the IMO Council and the ILO Governing Body to authorize the establishment of an ILO-IMO tripartite working group to identify and address seafarers’ issues and the human element as recommended by the ILO Sectoral Meeting. MSC was invited to make a similar request to the Council when considering the report of the sixth session of the Sub-Committee on Human Element, Training and Watchkeeping (HTW 6) in document MSC 102/13/2 submitted by the Secretariat.
Guidelines for port State authorities on how to deal with seafarer abandonment cases. The Committee considered document LEG 107/14/1 by China, proposing a new output on the development of the proposed guidelines. The information given was noted, that the development of such guidelines for port State authorities would provide for a unified procedure to follow and serve the purpose of sustainable development of the shipping industry. The Committee also noted a proposal to establish a working group to incorporate several elements in specific guidelines on the protection of seafarers in abandonment cases, and to conduct a gap analysis regarding the handling of such cases.
Following an in-depth discussion on the proposal, the Committee expressed its broad support for the inclusion of the new output on the development of guidelines for port State, and perhaps flag State, authorities, on how to deal with seafarer abandonment cases.
In conclusion, the Committee agreed to:
- Include a new output under the work programme on the development of guidelines for port and flag State authorities on how to deal with seafarer abandonment cases on the 2020-2021 and 2022-2023 biennial agendas, with a target completion year of 2022;
- Invite concrete proposals to LEG 108 on the scope of the work on the new output; and,
- Include the item in the provisional agenda for LEG 108.
Report on the status of outputs for the current biennium (2020-2021). The Committee agreed its report on the status of outputs for the current biennium for submission to the Council.
ANY OTHER BUSINESS.
New GISIS module on National Maritime Legislation. The Secretariat provided information on the launch of a new GISIS module on National Maritime Legislation to facilitate the notification and circulation of information on the national legislation implementing IMO conventions; guidance on its use has been communicated through Circular Letter No.4182 and, as of 19 November 2020, 22 Governments have submitted information to the new module.
Noting this, the Committee encouraged all Governments to use the module and to submit comments remarks or suggestions for its improvement to the Secretariat.
New UNCITRAL instrument on the judicial sale of ships and their recognition. The Committee noted the information contained in document LEG 107/16/1 on developments on the draft instrument on the judicial sale of ships in relation to the work carried out by the United Nations Commission on International Trade Law (UNCITRAL). One of the issues for consideration in UNCITRAL concerned a proposed centralized online repository for the publication of notices and certificates of judicial sale. Following discussion, the IMO Secretariat was invited to make the necessary arrangements to host the proposed repository as an additional GISIS module, providing a progress report to LEG 108.
DATE OF NEXT MEETING. The next meeting of the Legal Committee (LEG 108) will take place from 26 through 30 July 2021.
Captain Paddy McKnight