Legal Committee (LEG), 95th session: 30 March - 3 April 2009
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).
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.
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.
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.
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:
The difficulties in setting up the reporting system for packaged goods.
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.
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.
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
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.
The draft Protocol deals with this in three ways.
order to ratify the draft Protocol, States will be required to submit reports
on contributing cargo - IMO, as Depositary, will not accept any ratifications
which are not accompanied by such reports. States will also be obliged to
continue to submit reports annually thereafter until the Protocol enters
a State fail to submit reports annually, after depositing its instrument
of ratification, but prior to entry into force of the Protocol, it will
be temporarily suspended from being a Contracting State. The Protocol will,
therefore, not enter into force for any State which is in arrears with reports.
the Protocol has entered into force for a State, compensation will be withheld,
temporarily or permanently, in respect of that State, if it is in arrears
with reports, except in the case of claims for personal injury and death.
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.
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
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.
- 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,
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.
informs of proposed MLC amendments on seafarers' death, personal injury and
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
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
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.
Entry into force will occur 18 months after the following conditions have been
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.