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Legal Committee (LEG) - 97th Session, 15 - 19 November 2010

IMO Legal Committee supports follow-up to Deepwater Horizon and Montara

November 19, 2010

The Legal Committee of IMO, meeting for its 97th session, expressed its in principle support for the inclusion of a new item in the Committee’s work programme to consider liability and compensation issues connected with transboundary pollution damage resulting from offshore oil exploration and exploitation activities.
 
The move came in the wake of the much publicized Deepwater Horizon incident  and a submission to the Committee proposing a new work programme item, following the incident on the Montara offshore oil platform, located in the Australian Exclusive Economic Zone, in which a well blew out, leading to a significant oil spill.
 
To accommodate this work, the Committee agreed to recommend to the IMO Council an appropriate amendment to the Organization’s strategic plan.
Among the views expressed by delegations in favour of the proposal were the following:
 
• prompt measures were necessary to fill the gap where pollution damage was caused by transboundary oil spills;

• this was an appropriate time for the Organization to discuss this issue, in light of the recent Deepwater Horizon incident and the Montara well offshore oil platform incident;

• incidents involving transboundary pollution damage from offshore platforms might occur in any part of the world and not every country was able to tackle the problem on its own; accordingly, international regulation was advisable;

• immovable oil storage units are outside the scope of the existing oil pollution compensation regimes and should be regulated;

• the proposal was within the scope of IMO's mandate and IMO has in the past developed regulations relating to fixed platforms, including the 1988 and 2005 Protocols for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms located on the Continental Shelf;

• there is no other international forum with a better mandate to deal with the issue; and

• oil pollution knows no borders and, accordingly, it was important to have in place a mechanism to compensate victims.
 
The Committee recommended that interested States and Organizations should work together intersessionally, to develop the proposal further.
IMO has already developed a comprehensive regime covering liability and compensation resulting from pollution from oil carried by ships, both as cargo and as fuel (including the International Convention on Civil Liability for Oil Pollution Damage (CLC), 1969 (as amended by its 1992 Protocol), the 1992 Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND 1992) and the  International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001) but the relevant instruments do not currently cover pollution damage caused by offshore exploration and exploitation activities. 
 
Bunkers convention implementation draft resolution agreed
The Committee approved a draft resolution on the issuing of certificates, under the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001,  to ships that are also required to hold a certificate under the International Convention on Civil Liability for Oil Pollution Damage 1992, as amended, and decided to submit it to the 106th regular session of the Council for consideration and, thereafter, for submission to the twenty seventh regular session of the IMO Assembly for adoption.
 
The resolution recommends  that all States Parties to the Bunkers Convention: 1) issue the certificate prescribed by the Bunkers Convention even when the ship also holds a CLC Certificate; 2) require ships having a gross tonnage greater than 1,000, flying their flag or entering or leaving ports or offshore facilities in their territory, to be insured and to hold a Bunkers Certificate as prescribed by the Bunkers Convention even when the ship already holds a CLC Certificate; and 3) avoid taking action that could cause unnecessary bureaucracy.
 
The Committee also approved Guidelines for accepting documentation from insurance companies, financial security providers and P & I clubs, which recommends that a State Party to the Bunkers Convention should accept Blue Cards issued by a member of the International Group of P & I Associations when it is possible to verify the Blue Card from the International Group’s website, and provides criteria for accepting documentation from P &I Clubs outside of the International Group.
 
Piracy legislation reviewed
The Committee reviewed a number of submissions relating to piracy, including an updated assessment of national legislation on piracy on the basis of information submitted to IMO by 41 Member States and one other jurisdiction; information on the work of the Working Group 2 (WG2) of the Contact Group on Piracy off the Coast of Somalia; and a summary of the report of the UN Secretary General to the UN Security Council on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia. 
 
With regards to the review of national legislation, the Committee was informed that this implementing legislation is not currently harmonized, and this factor, coupled with the uneven incorporation into national law of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) definition of piracy, might have an adverse effect on the process of prosecution. 
The Committee agreed there was a need for all States to have a comprehensive legal regime to prosecute pirates, consistent with international law, and that country-specific solutions, coupled with capacity building in the countries involved, were needed to move forward.
 
The IMO Secretariat was requested to send national legislation received from Member States to the United Nations/Division for Ocean Affairs and the Law of the Sea (DOALOS), for inclusion in the United Nations database.
With regard to the UN Secretary-General’s proposals, the Committee agreed to forward its views to WG2, including that the preferred solution was for the enhancement of United Nations assistance to build the capacity of States in the region to prosecute and imprison persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia (Option 1).
 
There was also some support for the following options deriving from the aforementioned report of the UN Secretary General to the UN Security Council on possible arrangements for the prosecution of pirates: option 2 (establishment of a Somali court sitting in the territory of a third State in the region, either with or without United Nations participation); option 3 (establishment of a special chamber within the national jurisdiction of a State or States in the region, without United Nations participation); and option 4 (establishment of a special chamber within the national jurisdiction of a State or States in the region, with United Nations participation).
 
The Committee was also updated on the implementation of the Djibouti Code of Conduct, which currently has 16 signatories (Comoros, Djibouti, Egypt, Ethiopia, Jordan, Kenya, Madagascar, Maldives, Mauritius, Oman, Saudi Arabia, Seychelles, Somalia, Sudan, the United Republic of Tanzania and Yemen). 
 
The Djibouti Code of Conduct Project Implementation Unit, established by IMO in April 2010 and financed by the Djibouti Code Trust Fund, is making significant progress on equipping the three regional counter-piracy information sharing centres in Dar es Salaam, Mombasa, and Sana’a (which are expected to commence operations in 2011).  Meanwhile, architectural plans have been finalized and building preparations have commenced on the construction of a regional training facility in Djibouti. Additionally, a regional workshop on legislation and maritime law enforcement, the first in a series, was held in Djibouti in September, with further training events, in co operation with the United Nations Office on Drugs and Crime (UNODC), programmed for early 2011.
 
Discussion on liability limits under LLMC
The Committee discussed issues surrounding a proposal to amend the liability limits under the 1996 Protocol to the Convention on Limitation of Liability for Maritime Claims (LLMC 1996). 
 
Although no decisions were taken, pending the presentation to the Committee of a formal proposal, there was wide agreement on the need to review the limits in LLMC 1996, in order to ensure the availability of adequate compensation to victims, and on the need to apply the tacit amendment procedure to bring any revisions of the limits into force.  Among the issues raised were two broad questions which needed to be addressed: (a) how much of an increase there should be; and (b) the scope of any increase, i.e. whether it should focus only on property damage or extend to personal injury and passenger claims, and, if so, what ratio should be used for calculating the increase in the limits applicable to such claims. 

A formal proposal, by 20 co-sponsors, for an amendment under article 8 of LLMC 1996 has been received at IMO and will be circulated for consideration by the Committee at its 99th session.