Legal Committee – 83rd session: 8-12 October 2001
IMO to review ship security in wake of terrorist attacksIMO’s Legal Committee is to review the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 1988 (the SUA treaties) in the wake of the tragic events of 11 September in the United States of America.
The Legal Committee, which met for its 83rd session from 8 to 12 October 2001, agreed to include the review of the SUA treaties as a priority item in its work programme for the next biennium (2002-2003).
The main purpose of the SUA convention is to ensure that appropriate judicial action is taken against persons committing unlawful acts against ships, which include the seizure of ships by force, acts of violence against persons on board ships, and the placing of devices on board a ship which are likely to destroy or damage it. The convention obliges Contracting Governments either to extradite or prosecute alleged offenders. The Protocol provides similar regulations relating to fixed platforms located on the Continental Shelf.
IMO Secretary-General Mr. William A. O Neil, speaking at the opening of the Legal Committee session, told the Committee that the shocking events of 11 September 2001 could not be ignored by an international Organization such as IMO, which has as an integral part of its mandate the duty to make travel and transport by sea as safe as possible.
Mr. O’Neil noted that he was consulting on the need to review the measures already adopted by IMO to combat acts of violence and crime at sea.
“Apart from any possible revision of practical preventative measures advocated by IMO, it is also important to ensure that criminals who have perpetrated acts of violence at sea be properly brought to trial and punished. This is directly related to two important IMO legal treaties on prosecution and extradition adopted in 1988, namely, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the SUA Convention) and its Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (the SUA Protocol),” Mr. O’Neil said.
The SUA convention has been ratified by 56 States, as at 1 October 2001, and the 1988 SUA Protocol by 51.
New guidelines on abandonment, personal injury and death of seafarers approved
The Committee approved draft resolutions and guidelines on abandonment, personal injury and death of seafarers. The guidelines urge States to require shipowners to provide adequate financial security to cover claims from seafarers in cases of abandonment, personal injury and death.
The guidelines and resolutions were developed by a Joint IMO/International Labour Organization (ILO) Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers which held its 3rd meeting from 30 April – 4 May 2001.
Following approval by the Legal Committee, the draft resolutions and guidelines will be submitted to the 22nd IMO Assembly in November for adoption. They will also be presented to the ILO Governing Body in November 2001 for adoption by that body. Once adopted, they will come into force on 1 January 2002.
The resolutions and Guidelines address the fact that, although there are international instruments covering certain aspects of the problems relating to abandonment, death and personal injury of seafarers, some are not widely implemented and none deals with these problems comprehensively.
Financial security in cases of abandonment of seafarers
The resolution on provision of financial security in case of abandonment of seafarers states that abandonment of seafarers is a serious problem involving a human and social dimension and recognises that, given the global nature of the shipping industry, seafarers need special protection. The resolution includes associated Guidelines which set out the main features and scope of coverage of the financial security system and also contain recommendations for certification of such systems.
Personal injury to or death of seafarers
The resolution on claims for personal injury to or death of seafarers notes a need to recommend minimum international standards for the responsibilities of shipowners in respect of contractual claims in such cases. It expresses the concern that, if shipowners do not have effective insurance cover, or other form of financial security, seafarers are unlikely to obtain full and prompt compensation. It states that putting in place effective arrangements for the payment of compensation is part of the shipowners’ responsibilities to provide safe and decent working conditions.
The resolution includes associated Guidelines recommending measures to be implemented including certification and a model receipt and release form for claims.
The Committee agreed that the Joint IMO/ILO Working group should continue to meet to discuss possible longer term solutions to the problems of abandonment, personal injury and death of seafarers, including assessing the need for a mandatory instrument. If the resolutions are adopted, the Working Group will also have as one of its terms of reference the need to keep the Guidelines under review.
Athens Convention revision
The Legal Committee completed its consideration of a draft protocol to revise the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, and repeated its request to the IMO Council and Assembly for the convening of a diplomatic conference during the biennium 2002-2003 to consider and adopt the revised regulations.
The Athens Convention of 1974 makes a carrier liable for injury to or loss suffered by a passenger if an incident causing damage occurs during the course of the carriage and is due to fault or neglect of the carrier. Liability can be limited so long as the carrier did not act recklessly or with intent to cause damage.
The draft Protocol introduces, among other things, the requirement of compulsory insurance for passenger claims, and proposes changes to the fault-based liability system, introducing the concepts of strict liability and reverse burden of proof in certain circumstances, and making the distinction between shipping-related and non-shipping incidents.
As part of its review, the Committee agreed that the basis on which limits of insurance should be calculated should be on a per incident basis, except in respect of luggage which should remain on a per carriage basis. The Committee also agreed that limitation should be on a per capita (per person) basis as this would ensure that all passengers would have equal treatment under the insurance regime regardless of the size of the ship on which they happened to be travelling.Legal issues relating to the problem of providing disabled ships and ships in distress with places of refuge
The Committee considered the legal issues surrounding ships in distress and places of refuge and agreed to include the question of places of refuge in its work programme for the next biennium.
In preparation for this work, the Committee gave the IMO Secretariat a mandate to make a study of the relevant legal issues. The Committee noted that the study should not only address public law questions but also issues within the domain of private law, such as salvage, liability and insurance. The offer of the Comité Maritime Internationale (CMI) to collaborate with the secretariat on the project was gratefully accepted.
The issue had been raised following the Erika incident of December 1999 but the urgency to deal with the matter was heightened following the incident involving the fully-laden tanker Castor early in 2001. Carriage of the matter within IMO is the responsibility of the Sub-Committee on Safety of Navigation which is working on developing appropriate IMO guidelines on the matter.
The Sub-Committee has agreed draft terms of reference for future work, placing high priority on the safety of all involved in any operation concerning the provision of places of refuge, with due attention to all environmental aspects associated with these operations
HNS Convention – draft Assembly resolution on implementation approved
The Committee approved a draft Assembly resolution on implementation of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances (HNS) by Sea, 1996.
The Convention, when it enters into force, will make it possible for compensation to be paid to victims of accidents involving hazardous and noxious substances, such as chemicals.
The draft resolution, to be submitted to the Assembly in November, notes that eight States are signatories to the HNS Convention and that only two States have become party to the Convention. It therefore urges all States to place a high priority on working towards the implementation of the HNS Convention, and in resolving any practical difficulties in setting up the new regime, with the aim of ratification of, or accession to, the Convention.
Draft convention on wreck removal – work continues
The Committee continued its work on the consideration of a new draft Convention on wreck removal. The wreck removal convention is intended to provide international rules on the rights and obligations of States and shipowners in dealing with wrecks and drifting or sunken cargo which may pose a hazard to navigation and/or pose a threat to the marine environment. The draft Convention is intended to clarify rights and obligations regarding the identification, reporting, locating and removal of hazardous wrecks, in particular those found beyond territorial waters.
The Committee agreed that the goal was to have the draft convention ready for adoption by a conference during the 2004-2005 biennium.
Areas of concern which still need to be addressed by the Committee include: consistency with UNCLOS; definition of “wreck”; the nature of the danger posed by a wreck; financial security; and financial responsibility.