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Legal Committee (LEG) – 98th session, 4-8 April 2011

April 8, 2011

States invited to give effect to fair treatment of seafarers guidelines in draft Assembly resolution agreed by IMO Legal Committee
A draft Assembly resolution aimed at promoting compliance with the 2006 IMO/ILO Guidelines on fair treatment of seafarers in the event of a maritime accident was agreed by the Legal Committee when it met for its 98th session.
 
The draft resolution invites Member States to consider amending their national legislation to give full and complete effect to the Guidelines on Fair Treatment of Seafarers and invites Governments to respect the principles in the Guidelines when considering fair treatment of seafarers in other circumstances where seafarers are detained.
 
The draft resolution notes that a number of incidents have taken place, since the adoption of the Guidelines in 2006, in which seafarers on ships that have been involved in maritime accidents have been detained for prolonged periods, raising questions about whether they have been treated fairly in full accordance with the principles set out in the Guidelines.
 
The draft resolution also recognizes that the Guidelines should be implemented alongside the IMO Code of the International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Accident, which has been made mandatory by way of amendments to the International Convention for the Safety of Life at Sea (SOLAS) chapter XI-1, which entered into force on 1 January 2010.
 
The draft resolution reiterates the importance of the Guidelines and invites Member Governments, as a matter of urgency, to bring this resolution to the attention of Government officials, in particular those involved in the administration of justice, who may be involved in decisions and procedures affecting the treatment of seafarers involved in maritime accidents, as well as shipowners and seafarers and their respective organizations, and invites them to inform the Legal Committee of the means by which this request has been implemented.
 
The draft resolution will be submitted, through the IMO Council, to the IMO Assembly when it meets for its 27th session from 21 to 30 November 2011 and also to the International Labour Organization (ILO) Governing Body, which meets for its 311th session in June 2011.
 
Wreck removal certificates – draft Assembly resolution approved
The Committee approved a draft Assembly resolution on the issue of wreck removal certificates to bareboat-registered vessels, which recommends, among other things, that such certificates should be issued by the flag State.
 
The draft Assembly resolution aims to assist those States preparing to ratify the Nairobi Wreck Removal Convention, and encourage standard practice in this regard, by  providing certainty in the future application of the Nairobi Wreck Removal Convention; removing  ambiguity regarding the issuing of wreck removal certificates to bareboat registered vessels and avoiding the co-existence of certificates; assisting in applying the Convention in a uniform manner;  and ensuring consistency with Assembly resolution A.1028(26) on the issue of bunkers certificates under the Bunkers Convention.
 
Legal aspects of piracy – discussions continue
The Committee was updated on the implementation of the Djibouti Code of Conduct concerning the repression of piracy and armed robbery against ships in the western Indian Ocean and the Gulf of Aden (the Djibouti Code), on the work of the Maritime Safety Committee (MSC) with regard to piracy, and on the work of the seventh session of Working Group 2 of the Contact Group on Piracy off the Coast of Somalia (WG2) (which met in Copenhagen, Denmark, on 3 and 4 March 2011), 
 
The Committee discussed and agreed to circulate materials prepared by the IMO Legal Office, the UN Division for Ocean Affairs and the Law of the Sea and the UN Office on Drugs and Crime, which identify the key elements of the international instruments that may be relevant to piracy and related crimes, including the United Nations Convention on the Law of the Sea (UNCLOS), the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 (SUA 88),  the United Nations Convention on Transnational Organized Crime, 2000 (OCC) and the International Convention against the Taking of Hostages, 1979 (Hostage Convention). 
 
The Committee agreed that the information might be useful to States which were either developing national legislation on piracy or were reviewing existing legislation on piracy, while stressing that these documents did not constitute definitive interpretations of the instruments referred to therein. In particular, they should not be considered as limiting, in any way, the possible interpretations by States Parties of the provisions of those instruments.
 
Follow-up to oil-well incidents progressed
The Committee discussed liability and compensation issues connected with transboundary pollution damage from offshore oil exploration and exploitation activities, following preliminary debate at its last session 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.
 
The Committee discussed the report of an informal intersessional consultative group on consultations concerning liability and compensation for oil pollution damage resulting from offshore oil exploration and exploitation. In introducing the report, the delegation of Indonesia, as co-ordinator of the group, highlighted that, among other things, no dedicated internationally-binding instruments for compensating victims of transboundary oil pollution damage existed and, accordingly, there was a need to develop effective measures for mitigating and responding to the impact on the environment caused by incidents of pollution, including liability and compensation issues connected with transboundary oil pollution damage.
 
Information on the existing international and regional instruments was also provided. These include: the provisions of the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) which inter alia require States to control pollution of the marine environment from sea-bed activities and to provide recourse for compensation for damage caused by such pollution; a 1977 Convention on Civil Liability for Oil Pollution Damage from Offshore Activities, which contains the text for such a regime, but has not entered into force; and a 1974 regional Convention between Denmark, Finland, Norway and Sweden on protection of the environment, which provided for compensation for oil spills from offshore platforms and which could serve as a precedent for regional action.
 
The Committee recommended that, pending approval by the IMO Council and Assembly of the proposed amendment to the relevant strategic direction in the Organization’s High-Level Action Plan, the informal consultative group of interested States and organizations should continue to work together intersessionally, co-ordinated by Indonesia, to analyse the issue further, taking into account the discussions during the session. 
 
Need to review liability limits under LLMC agreed
There was wide agreement in the Committee on the need to review the limits of liability under the 1996 Protocol to the Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC 1996). 
 
It was agreed to make no decisions regarding the amount of any possible increase in limits of liability at this session, since the formal proposal for an amendment under article 8 would only be considered at the Committee's next session, LEG 99, in April 2012.
 
There was a wide exchange of views relating to the possible extent of the increase in limits and also the potential impact on other treaties on liability and compensation. The Committee recognized that it was important to have a broad consensus at its ninety-ninth session, in order to adopt an amendment to the limits of liability under LLMC 96.
 
Consolidated HNS text, overview and model receipts form approved
The Committee took a number of practical measures intended to assist States in ratifying and implementing the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 (HNS 1996) and the Protocol of 2010 to the Convention (2010 HNS Protocol).
 
The consolidated text of the HNS 1996 Convention and the 2010 HNS Protocol was approved. While the consolidated text is not, in itself, a treaty instrument or an authentic text, it has been prepared to assist Member States and others in implementing the 2010 HNS Convention.
 
The Committee approved the model form on receipts of contributing cargo, as guidance to assist States to meet their reporting obligations, in accordance with the 2010 Protocol.
 
The Committee also approved the revised Overview of the 1996 HNS Convention, as amended by the 2010 HNS Protocol, prepared in consultation with the International Oil Pollution Compensation (IOPC) Funds Secretariat. The documents referred to above will be made available on the IMO website.
 
States urged to ratify MLC 2006
The Committee received an update on the status of the Maritime Labour Convention, 2006 (MLC 2006) and urged States to ratify the treaty at the earliest opportunity, if they had not already done so. 
 
The ILO informed the Committee that the MLC 2006 had been ratified by 12 States representing approximately 48 per cent of the world fleet based on gross tonnage.  Eighteen more ratifications were needed to achieve the required number for entry into force.  Several States had indicated that they were working to ratify the Convention before the end of 2011, to enable it to enter into force in 2012 (in the same year as the 2010 Manila amendments to the International Convention on the Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW) and the 1995 STCW Code).