Draft HNS Protocol approved
The Legal Committee of the International Maritime Organization (IMO), meeting for its 95th session at IMO Headquarters in London, has approved a draft Protocol to the 1996 HNS Convention (the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea).

The draft Protocol is designed to address practical problems that have prevented many States from ratifying the original Convention which, despite being adopted in 1996, has, to date, only 13 ratifications and is some way from meeting the level of ratification that would trigger its entry into force.

The 1996 HNS Convention is based on the highly successful model of the Civil Liability and Fund Conventions. Like the regime introduced by the latter Conventiosn, it seeks to establish a two-tier system for compensation to be paid in the event of accidents at sea, in this case involving hazardous and noxious substances, such as chemicals. Tier one will be covered by compulsory insurance taken out by shipowners, who would be able to limit their liability; in those cases where the insurance does not cover an incident, or is insufficient to satisfy the claim, compensation shall be paid from a fund, made up of contributions from the receivers of HNS. Contributions will be calculated according to the amount of HNS received in each State in the preceding calendar year.

However, among the obstacles that have discouraged ratification of the Convention, one of the most difficult to overcome has been the requirement for States to report the quantities of HNS received to IMO. This difficulty is due, in part, to the sheer range and diversity of hazardous and noxious substances that will be governed by the HNS Convention. As the reports act, among other things, as a trigger mechanism for the entry into force of the Convention, the omission of States to file them has effectively prevented the Convention from becoming operative. The draft Protocol, which was developed initially by a focus group established by the 1992 IOPC Fund Assembly, is set to address this problem, as well as others thought to be acting as barriers to ratification of the Convention.

The IMO Legal Committee has now requested the IMO Council, which meets in June 2009, to approve the holding of a diplomatic conference as early as possible during 2010 to consider the draft Protocol, with a view to formally adopting it.

Key issues
It has been widely recognized that three issues have been instrumental in preventing States from ratifying the HNS Convention. The draft Protocol addresses each of them, as follows:

1. Problem: The difficulties in setting up the reporting system for packaged goods.

Solution: Packaged goods have been excluded from the definition of contributing cargo and, accordingly, receivers of these goods will not be liable for contributions to the HNS Fund. However, since incidents involving packaged goods will remain eligible for compensation, the shipowners’ limits of liability for incidents involving packaged HNS will be increased. The precise level of increase will be set at the Diplomatic Conference.

2. Problem: Under the 1996 HNS Convention, the person liable for LNG contributions is the person who held title to an LNG cargo immediately prior to its discharge. In the case of other accounts, the person liable is the receiver. While the receiver must be subject to the jurisdiction of a State Party, the titleholder need not be. It would, therefore, have been impossible to enforce payment of contributions to the LNG account by titleholders in non-State Parties.

Solution: Under the draft Protocol the receiver, as defined in Article 1.4 of the Convention, will be liable for annual contributions to the LNG account, except in the limited situation where the titleholder pays them, following an agreement to this effect with the receiver and the receiver has informed the State Party that such an agreement exists.

3. Problem: Despite an obligation to do so, very few States, when ratifying the HNS Convention, have submitted reports on contributing cargo. This omission has been a contributing factor to the Convention not entering into force. In addition, there has been a growing awareness of the desirability of preventing the invidious situation which has occurred in the IOPC Funds, where non-submission of reports results in non-payment of contributions but not in withholding of compensation.

Solution: The draft Protocol deals with this in three ways.

Fair treatment of seafarers - BIMCO report discussed
The Committee was informed of a study carried out by BIMCO, which updated its 2006 "Study of recent cases involving the International Practice of Using Criminal Sanctions towards Seafarers".

The Committee agreed that the Guidelines on Fair Treatment of Seafarers in the vent of a maritime accident, adopted by the Legal Committee, and the Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident, adopted by IMO's Maritime Safety Committee, should be strictly applied by States so that a proper balance could be achieved between the need, on the one hand, for a thorough investigation of maritime accidents and, on the other hand, the protection of the rights of seafarers.

Many delegates noted that the issue of fair treatment of seafarers was the direct responsibility of port, coastal and flag States, the State of the nationality of the seafarers, shipowners, and seafarers. States were obliged to treat seafarers fairly, pursuant to the Universal Declaration of Human Rights and regional human rights instruments, as well as under national law. There was also a consensus that States should comply with the Guidelines on fair treatment of seafarers adopted by the Legal Committee.

Development of a single model compulsory insurance certificate
The development of a single model compulsory insurance certificate to reduce administrative burdens, including for port State control-related inspections, was discussed and the Committee agreed to establish a correspondence group to report to its next session.

The group was instructed to further develop a draft model for a single insurance certificate; to analyze the advantages and disadvantages (legal and practical) of a mandatory versus non-mandatory model for a single insurance certificate; to make further recommendations on what to include in the certificate; and to consider the possible use of electronic databases to maintain records of a single insurance certificate.

Bunkers Convention - correspondence group on implementation established
A correspondence group on the implementation of the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunkers Convention) was established to address a number of issues, including the issuance of certificates to bareboat registered vessels; whether oil tankers holding International Convention on Civil Liability for
Oil Pollution Damage, 1992 (CLC) Certificates or covered by the CLC system are required to obtain Bunkers Certificates; the issuance of Bunkers Certificates to new buildings; insurance and liability for claims where the Convention on Limitation of Liability for Maritime Claims (LLMC) does not apply; and any additional issues in relation to the above that might provide clarity to promote wider acceptance and harmonized implementation of the Bunkers Convention.

The Bunkers Convention entered into force on 21 November 2008 and has been ratified by 38 countries representing 75.50 per cent of the world tonnage of merchant shipping,

Legal aspects of piracy
The Committee was informed that the IMO Secretariat was currently undertaking a review of national legislation on piracy, based on information received from Member States, and that a synopsis of the replies would be submitted to the Committee at its next session, in order to facilitate an assessment of the legal situation, in particular regarding the capture, prosecution and extradition of alleged offenders.

IMO Member States have been asked to submit copies of their national legislation together with any pertinent information they may have about their domestic laws aiming at combating piracy and armed robbery against ships and prosecuting the perpetrators of such acts. Responses have already been received from a number of countries.

ILO/IMO group informs of proposed MLC amendments on seafarers' death, personal injury and abandonment
The Committee noted the outcome of the ninth session of the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers, which met at the ILO headquarters in Geneva in March 2009.

The Group had agreed that financial security should be made mandatory for both types of claim and had developed initial draft texts embodying a set of agreed principles, which, it proposed, should be considered as a basis for the preparation of relevant amendments to the 2006 Maritime Labour Convention (MLC), when it enters into force.

The Committee agreed that it should remain seized of the issue and should keep it under consideration, in the event that amendments to the MLC prove not to be feasible or timely. The joint Secretariat was instructed to remind Governments of IMO Assembly resolutions A.930(22) Guidelines on provision of financial security in case of abandonment of seafarers and A.931(22) Guidelines on shipowners' responsibilities in respect of contractual claims for personal injury to or death of seafarers and to further urge their voluntary implementation.

A full report of the ninth session of the joint IMO/ILO Ad Hoc Expert Working Group, including the Group's proposals for the text of draft amendments to the Maritime Labour Convention, 2006 will be submitted to ninety sixth session of the Legal Committee, in October 2009, as well as to the November 2009 session of the Governing Body of ILO, for consideration and action as appropriate.

No binding instrument on places of refuge at this stage
The Committee was informed of the draft text of an instrument on Places of Refuge developed by the International Working Group of the Comité Maritime International (CMI), but decided not to develop a binding instrument on places of refuge at this stage.

The Committee expressed its appreciation to the CMI for its efforts in preparing the draft instrument. However, delegations who spoke noted that the international regime comprising the existing liability and compensation conventions for pollution damage at sea provided a comprehensive legal framework, especially when coupled with Resolution A.949(23) Guidelines on places of refuge for ships in need of assistance and other regional agreements. The Committee was of the view that there was a need to focus on implementation of existing treaties, including ensuring the entry into force of the Nairobi Convention on the Removal of Wrecks, 2007.

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Note:
Entry into force will occur 18 months after the following conditions have been fulfilled:
• 12 States have accepted the Convention, four of which have not less than two million units of gross tonnage
• Provided that persons in these States who would be responsible to pay contributions to the general account have received a total quantity of at least 40 million tonnes of contributing cargo in the preceding calendar year.