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Legal Committee (LEG), 96th session: 5 - 9 October 2009

October 9, 2009

Bunkers Convention certificates clarified by Legal Committee
IMO's Legal Committee moved to resolve possible confusion over some aspects of the implementation of the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunkers Convention), when it met for its 96th session, with the approval of a draft Assembly resolution on the issuing of bunker certificates of insurance to bareboat-registered vessels.
 
The draft resolution aims to clarify differing interpretations on the issuance of Bunker Certificates by States to ships registered in a bareboat registry (in other words, when a vessel is temporarily permitted to fly the flag of another country, while ownership continues to be registered in the underlying registry), by stating that while all States Parties recognize that Bunker Certificates should be issued by the flag State if it is a Party to the Convention, "all State Parties should request only one Bunker Certificate from any ship, including ships bareboat-registered in a State Party, and should accept Bunker Certificates issued by such a State Party". This is intended to assist shipowners, managers and operators in avoiding unnecessary delays, detentions of ships, and administrative burdens.
 
Further recommendations state that: "State Parties should avoid burdening shipowners with unnecessary bureaucracy; and State Parties which allow ships to be registered as bareboat chartered should co operate to find viable solutions in a spirit of understanding and co-operation."
 
The draft resolution will be submitted to the 26th session of the IMO Assembly, which meets 23 November to 4 December, for adoption.
The Bunkers Convention entered into force in November 2008 and currently has 46 States Parties, representing 79.24 per cent of the gross tonnage of the world's merchant fleet.
 
Committee agrees financial security for abandonment and personal injury/death of seafarers should be made mandatory
The Committee reviewed the report of the ninth session of the joint IMO/International Labour Organization (ILO) Ad Hoc Expert Working Group, and agreed with the Group's recommendations to make mandatory, by means of proposed amendments to the ILO's Maritime Labour Convention (MLC), 2006, financial security in case of abandonment of seafarers and in respect of contractual claims for personal injury to or death of seafarers.
The Joint Group's report will also be submitted to the 306th Session of the Governing Body of ILO (November 2009), for consideration and action, as appropriate.
 
The Legal Committee agreed that an amendment to the MLC 2006 represented the best way forward to create such a mandatory instrument or instruments, but noted that this Convention was not yet in force, and further work on the draft amendments might be needed after its entry into force. The MLC 2006 has, to date, been ratified by five ILO Members representing more than 44% of the world gross tonnage and the related responsibility for nearly 50% of the world's seafarers working on these ships, but requires ratification by at least 30 Members representing at least 33% of the world gross tonnage to come into force.
 
It was also noted that the financial security envisaged in the draft text was restricted to contractual compensation as provided for under the employment contract, collective bargaining agreement or other employment agreement.
 
Guidelines on Provision of Financial Security in Cases of Abandonment of Seafarers and Guidelines on Shipowners' Responsibilities in respect of Contractual Claims for Personal Injury to or Death of Seafarers were adopted by IMO (and also by the ILO) in 2001.
 
Review of national piracy legislation
The Committee reviewed information on national legislation on piracy submitted by Member Governments, noting that, in most cases, piracy is not addressed as an independent, separate offence with its own jurisdictional framework, but is subsumed within more general categories of crime, such as robbery, kidnapping, abduction, violence against persons, etc. In such cases, prosecution and punishment can only take place in accordance with a jurisdictional scope that is, inevitably, more restricted than the scope of universal jurisdiction applying to piracy which is regulated in the United Nations Convention on the Law of the Sea (UNCLOS).
 
In discussing the topic, delegations commented that many issues needed to be further explored, including national and regional prosecution mechanisms, and the establishment of regional courts. The establishment of an international tribunal did not, however, seem to be a viable alternative at this point in time.
 
2005 SUA Protocols nearing entry into force
The Committee was informed that three countries were in the process of ratifying the 2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988 (SUA Convention), which would bring the number of States parties to the 2005 SUA to 11, one less than the required number for the entry into force of the treaty. This would also allow the simultaneous entry into force of the 2005 Protocol related to the Fixed Platforms, which has already achieved the required number of Contracting States, but cannot enter into force before the Convention itself does so.
 
Both 2005 SUA Protocols were adopted as part of the IMO strategy in response to the terrorist incidents of 9 September 2001, the other significant measures adopted (which have already entered into force, under the tacit amendment procedure) being the International Ship and Port Facility Security Code and long-range identification and tracking of ships, both made mandatory under the International Convention for the Safety of Life at Sea
 
LLMC limits to be reviewed
The Committee agreed to review the limits of liability of article 6.1 (b) of the Limitation of Liability for Maritime Claims Convention, 1996, in accordance with the tacit amendment procedure set out in article 8, by including the subject in a new agenda item, with a target completion date of 2011.
The limits were last revised under the 1996 LLMC Protocol, which entered into force in 2004.
 
In article 6.1, the limits of liability for claims other than in article 7 (The limit for passenger claims), arising on any distinct occasion, are calculated as follows: b) in respect of any other claims (i.e. not loss of life or personal injury), 1 million Units of Account for a ship with a tonnage not exceeding 2,000 tons, (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i): for each ton from 2,001 to 30,000 tons, 400 Units of Account; for each ton from 30,001 to 70,000 tons, 300 Units of Account; and for each ton in excess of 70,000 tons, 200 Units of Account.
 
No single model compulsory insurance certificate at this stage
The Committee discussed the development of a single model compulsory insurance certificate to reduce administrative burdens, including for port State control-related inspections, following a comprehensive review of the issues by a correspondence group. It was concluded that, at this point in time, neither a non-mandatory approach - via an Assembly resolution containing a model certificate - nor a mandatory approach - either by amending each relevant instrument or adopting a Protocol - would be practical or feasible.
 
In particular, the fact that only three of the six liability instruments involved were currently in force was an obstacle to approving or adopting a single model certificate.
 
The liability treaties referred to include: the International Convention on Civil Liability for Oil Pollution Damage, 1969 (in force); the 1992 Protocol to the International Convention on Civil Liability for Oil Pollution Damage (in force); the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (in force), the Protocol to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 2002 (not yet in force); the Nairobi International Convention on the Removal of Wrecks, 2007 (not yet in force); and the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996, which is not in force and is set to be amended by a new Protocol to be adopted at a Diplomatic Conference in April 2010.