DIPLOMATIC CONFERENCE TO REVISE THE INTERNATIONAL CONVENTION ON LIABILITY AND COMPENSATION FOR DAMAGE IN CONNECTION WITH THE CARRIAGE OF HAZARDOUS AND NOXIOUS SUBSTANCES BY SEA
OPENING ADDRESS BY MR. E.E. MITROPOULOS
INTERNATIONAL MARITIME ORGANIZATION
Monday, 26 April 2010
Excellencies, President of the IMO Assembly, Director of the IOPC Funds, distinguished delegates and observers, media representatives, ladies and gentlemen,
It gives me great pleasure to welcome you to this International Conference convened by IMO to revise the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea – the Convention that is usually referred to as the “HNS Convention”. I extend a particular welcome to those of you who have come to London from countries afar and who may have been inconvenienced by the recent disruption in air services because of the volcanic eruption in Iceland.
I will start by recalling briefly the history of the HNS Convention – an instrument that was adopted to form an integral part of the international liability and compensation regimes developed by IMO in response, in the first place, to the Torrey Canyon disaster, which, back in 1967, caused extensive pollution damage to the English and French coasts.
Because of the complexity of the legal issues arising out of that and similar incidents, which effectively precluded the Governments of the countries affected from taking practical measures against ships involved in oil spills to protect their coastlines and which rendered it almost impossible to obtain compensation, the Organization (then known as the Inter-Governmental Maritime Consultative Organization – IMCO) was requested to consider developing a multilateral response to the issues that came to light in the context of accidents such as the one involving the Torrey Canyon.
This multilateral response was achieved by the adoption, in 1969, of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, which recognized that coastal States had the right to take reasonably necessary and proportionate measures to counteract maritime casualties posing a grave and imminent danger of oil pollution to their coastlines or related interests. The associated liability and compensation issues were dealt with by the subsequent consecutive adoption, in 1969 and 1971, of the ‘twin’ IMO conventions that became known as, respectively, the Civil Liability Convention or ‘CLC’ and the International Oil Pollution Compensation Fund Convention, also known as the ‘Fund Convention’. Both conventions have since been extensively revised and updated by protocols adopted in 1992.
Neither the CLC nor the Fund Convention, however, covered damage caused by the spillage of hazardous and noxious substances other than oil, as oil pollution was, at the time of adoption of the two instruments, regarded as by far the most pressing environmental hazard.
Those substances were first tackled by the Legal Committee in the late 1970s, when a first draft of what later became the HNS Convention was prepared and subsequently submitted to a Diplomatic Conference in 1984. Unfortunately, a number of issues (on which the Legal Committee had not, at the time, been able to reach consensus) gave rise to differing views and opinions, during the Conference, which could not, in the limited time available, resolve them to secure adoption of the proposed draft text. There remained, however, widespread agreement on the need for a binding international instrument on liability and compensation for HNS damages, which led, after yet another decade of further work, to a second Diplomatic Conference, which was held in 1996, when the present HNS Convention was adopted.
Having been developed on the basis of the successful models of the CLC and Fund Convention, it was assumed that the HNS Convention would not present much difficulty in the way it would be implemented. Unfortunately, however, this has not proved to be the case for a number of reasons, including the sheer range and diversity of hazardous and noxious substances covered by the Convention; the associated difficulty of putting in place the measures needed to collect data and report on packaged HNS; issues related to contributions to the liquefied natural gas (LNG) account; and the poor record of submission of the reports required by the Convention, both prior to and following ratification. This has meant that States, even though they may be willing or even impatient to ratify the Convention, were faced with several obstacles of a practical nature in the way of its implementation, which ought to be overcome before ratification could take place and full and complete effect given to all of its provisions.
For reasons such as the above, it became, with the passing of time, obvious that the conditions set for the Convention to come into force, particularly the condition relating to the requirement for States to report on receipts of contributing cargo, would not be met within a reasonable time for the instrument to become international law.
Should we consider it sheer luck that no major incident involving ships carrying HNS, which would, for certain, have galvanized public opinion and brought political pressure to bear on the ratification process, has occurred? We will never know.
In the meantime, several Governments and international organizations made commendable efforts to promote the implementation of the Convention and to identify specific difficulties preventing most States from ratifying it. While preparing for the entry into force of the Convention was, and has remained, a priority for several Governments, the Organization itself moved on to promote and accelerate both its ratification and implementation. The action taken included monitoring progress with the implementation, which thus became an ongoing item on the agenda of the Legal Committee. In this connection, an HNS Correspondence Group was established in 1999 and entrusted with the dual task of identifying problem areas and of advising the Committee on specific guidance that should be promulgated to resolve them. It was also tasked with reporting to the Committee on relevant developments in individual States.
The Assembly of IMO, too, played its part, urging the membership to place a high priority on working towards implementation of the Convention and on resolving any practical difficulties that might hinder the new regime becoming operational in their jurisdiction so that they could ratify the Convention as early as possible.
Much credit in the preparatory phase leading to acceptance of the Convention is also due to the IOPC Funds. Based on a resolution adopted by the 1996 Conference, the Funds have, since, worked assiduously to facilitate the Convention coming into force. Their work has included studying the interrelation between the liability and compensation conventions for oil pollution damage and the carriage of substances under the HNS Convention; preparing the HNS database; and designing the contributing cargo calculator.
While undergoing these activities, however, it became clear, from the monitoring work of the Legal Committee, that certain major obstacles were rendering the fulfilment of the entry-into-force requirements extremely difficult. To overcome this, alternative solutions were explored. To this end, an open-ended HNS Focus Group was established by the IOPC Funds in 2008 to develop the draft text for a Protocol that would provide relatively simple and straightforward solutions to remove the identified obstacles. It was envisaged that such a Protocol would be a free standing treaty, intended to complement the HNS Convention – in which case the two instruments (i.e. the parent Convention and the Protocol) would be read together.
The Legal Committee considered the draft Protocol prepared at its ninety-fourth session in October 2008, at which time it developed a series of solutions to several problem issues that might stand in the way of ratification. These included:
• one – excluding packaged HNS from the mandatory requirement to contribute to the HNS Fund. This has the merit of alleviating the heavy administrative burden associated with the collection and reporting of such data. However, damage caused by packaged HNS would still be covered by the HNS Fund so that victims of incidents involving packaged HNS would be assured of direct and prompt access to adequate compensation;
• two – changing the person liable for LNG contributions, from the titleholder to the receiver, with a view to eliminating inconsistencies with other contributing cargo regimes; taking into account relevant industry practices; and providing for a more equitable distribution of financial responsibility between developed and developing countries; and
• three – adopting remedies to ensure submission of contributing cargo reports by States, both upon ratification and annually thereafter – the former being a major factor in the non-fulfilment of the entry into force requirements of the HNS Convention; the latter, in order to prevent a similar problem to that occurring in the IOPC Funds from arising once the HNS regime becomes operative.
Last year, the Legal Committee undertook a second, detailed reading of the draft text of the Protocol this Conference has been convened to adopt with the aim of agreeing, before submitting to this meeting, a robust draft instrument, both from the legal and the technical perspective. Among the various decisions it then made, were the measures I just mentioned.
Following on intensive scrutiny both by the IOPC Funds Focus Group and the Legal Committee, the draft text before you was finalized presenting the best way forward to resolve all the issues that have been identified as hindering States from becoming Party to the HNS Convention. The task of drafting the Protocol has not, by all accounts, been an easy one and I recognize that there still remains unresolved one particular issue, which will need to be decided by the Conference, namely:
• the limits of the shipowner’s liability in those cases where the damage has been caused by packaged HNS; or where it has resulted from both bulk and packaged HNS; or where it is not possible to make the distinction.
I hope that you will not allow this issue to impede progress towards the Conference reaching a successful conclusion. And I am confident that, this time, political will and your readiness to achieve, through a balanced approach, consensus decisions in your deliberations will prevail, thus bringing to a close more than three decades of dedicated work to add the contribution of the draft Protocol before you to the regulatory regime developed by IMO to serve shipping from all perspectives.
Once the new Protocol is adopted, developing countries, in particular, will need assistance to implement it effectively – a matter that we should promptly include in the Organization’s Integrated Technical Co-operation Programme. I, therefore, encourage you to consider favourably for adoption the Conference resolution on technical co operation, which has been drafted in a manner that reflects fully the views expressed during the debate at the Legal Committee on the need to develop capacity-building programmes in order to help developing countries to cope with the complexities of the Protocol and to achieve the goal of widespread, global application. Furthermore, it would complement ongoing technical co operation activities to facilitate capacity building for the effective, global implementation of the OPRC-HNS Protocol of 2000, already in force since June 2007, which is concerned specifically with spill emergency preparedness, response and co-operation in HNS incidents.
I am sure you will, without hesitation, agree on the need to bring the HNS Convention into force without further delay. It is now fourteen years since it was adopted and, if an incident were to occur involving a spill at sea of hazardous and noxious substances, there would still be no international legal regime in place to provide compensation to victims for any loss or damage suffered as a result. This is a far from ideal situation, which we should remedy. It is, therefore, incumbent on all of us to make every effort, this week, to bring this undesirable situation to an end by adopting the Protocol prepared and thus removing the remaining obstacles that stand in the way of ensuring the effective, global implementation of the HNS Convention.
By bringing this Conference to a successful conclusion, we will demonstrate to all, including politicians and societal interest groups, our undeniable ability to regulate successfully complex issues that demand a concerted, global approach if they are to be addressed convincingly and with lasting effectiveness. An additional benefit, particularly pertinent in this year dedicated by IMO to the seafarer, will be the legal protection to be afforded by the HNS Convention, once it enters into force, to seafarers, who may suffer personal injury, or to their families in case of death arising out of an HNS incident.
This Conference is the culmination of long and intensive endeavours of IMO to tackle, through global regulation, the issue of liability and compensation for victims of incidents at sea involving hazardous and noxious substances. As we embark on the consideration of the draft text of the Protocol to the HNS Convention, I would suggest that we are guided by two principal objectives:
• first, that the instrument you will hopefully adopt at the end of the Conference ensures predictability of redress for victims of vessel-sourced HNS incidents, wherever in the world such incidents may occur; and
• second, that the same instrument contains provisions, which are pragmatic, realistic and workable and which, at the same time, are compatible with the commercial features of international seaborne trade and do not unduly interfere with the operational efficiency of shipping.
I believe that, by pursuing these two objectives, you will be able to achieve the desirable outcome of this Conference that we all aspire to, namely, the unanimous adoption of a robust, effective, workable and equitable civil liability regime for HNS-related damages. Such an outcome will not only confirm the continued relevance of IMO in the regulation of shipping but will also enhance its reputation as an efficient and effective agency within the UN system.
We are all aware that, despite the Organization’s best efforts to promote safety of shipping, incidents involving HNS do, occasionally, occur, such as when containers carrying dangerous substances are washed up on beaches, threatening public health and safety. However, there is no getting away from the fact that society increasingly expects concrete, effective and lasting action to safeguard the environment as well as the safety, health and well-being of its citizens. You should view your endeavours this week in this wider context of 21st century principles of corporate social responsibility – principles, to which I would wish to see IMO making its contribution by delivering uniform rules that ensure prompt, adequate and effective compensation to third parties suffering loss or damage, environmental or otherwise, as a result of vessel-sourced HNS incidents.
It remains for me now to wish you all success in your endeavours this week. However, before concluding, I wish to pay a special tribute to the Legal Committee as a whole and, in particular, to the Committee’s two Chairmen involved in the preparation of the draft Protocol before you: Mr. Alfred Popp QC, of Canada (in his dual capacity as Chairman of the Committee from 1993 to 2005 and Chairman of the IOPC Funds’ HNS Focus Group); and Professor Lee-Sik Chai, of the Republic of Korea, the current Chairman of the Committee, for their dedicated work, contribution and leadership in progressing the Committee’s work to the point that we have now a credible text on which to focus this week in the pursuit of another milestone in IMO’s history of successful Conferences.
Excellencies, distinguished delegates and observers, media representatives, ladies and gentlemen, it now gives me great pleasure to declare this Conference open. I wish you, and the Conference, every success and good luck.