Legal Committee, 87th session: 13 to 17 October 2003

Wreck Removal Convention
Conferences to adopt a protocol to revise the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988, and its Protocol of 1988 relating to Fixed Platforms Located on the Continental Shelf (SUA Convention and Protocol) and a new wreck removal convention should be held in 2005 and 2006, the Legal Committee agreed at its 87th session. The recommendation for the two conferences will be put to the Council and Assembly in November.

Revision of SUA treaties
The Committee has been working on the revision of the SUA Convention and Protocol since it was requested to do so by the IMO Assembly. Resolution A.924(22), adopted in November 2001, called for a review of measures and procedures to prevent acts of terrorism which threaten the security of passengers and crews and the safety of ships following the 11 September 2001 attacks in the United States. The importance attached to the SUA Convention by the international community is shown by the fact that 95 States have become parties, 37 of them since September 11th. The Committee agreed to continue work on the SUA revision on a priority basis.

The main purpose of the SUA Convention and its related Protocol is to ensure that appropriate action is taken against persons committing unlawful acts against ships. In the present Convention, these acts 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 proposed amendments would significantly broaden the range of offences and make it more relevant to modern conditions.

The current Convention obliges Contracting Governments either to extradite or prosecute alleged offenders thereby ensuring that those responsible for perpetrating acts of violence against or on board ships, will be brought to justice, wherever in the world they seek to hide. The revision expands on these and also introduces provisions for boarding of vessels suspected of being involved in terrorist activities.

Wreck removal
The Committee reviewed the current draft text of the proposed draft Wreck Removal Convention (WRC), as developed by a Correspondence Group. The WRC 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. It also provides for financial security arrangements to cover liability for costs of removal of such wrecks.

After clarifying some issues of principle in the Committee, a Working Group looked in detail at the draft text. Its report will form the basis of discussion at the next session (LEG 88) scheduled for April 2004.

On the issue of the relationship between the DWRC and other liability instruments (article 12) the Working Group identified three particular issues that would require clarification during the intersessional consultations, namely:

·  the need to avoid double claims;
·  the need to avoid gaps, so that claims are dealt with either under the DWRC or under the other liability regimes mentioned in the article; and
·  the need to avoid claims that are excluded under the other liability regimes being admissible under the DWRC.

The other main issues that require further consideration include:

·  application of the DWRC to the territorial sea (article 3(2));
·  exclusion of liability for acts of terrorism (article 11(1)(c)); and
·  identification of the person normally in charge of the day-to-day operation of the ship who might not necessarily be the registered owner as presently defined in the Convention.

The Committee noted that, although there were still some loose ends, the Working Group had made good progress in finalizing the draft text of the Convention in preparation for submission to a diplomatic conference.

Work programme and long-term work plan
The Committee agreed to request the Organization to make provision for a diplomatic conference in the next biennium. It also agreed that, at its 88th session, it would work, on a priority basis, on the revision of the SUA treaties and that work would continue on the DWRC, as time permitted. The Committee also agreed to request the Organization to make provision for a second diplomatic conference as early as possible in the 2006-2007 biennium.

Places of refuge
The Committee reviewed the finalized draft Assembly resolution on Guidelines on places of refuge for ships in need of assistance prepared by the Sub-Committee on Safety of Navigation (NAV) and reviewed by the Maritime Safety Committee (MSC). The Committee noted that these guidelines will be submitted to the IMO Assembly in November 2003 and agreed that it was important that they be adopted as soon as possible.

In response to a request by NAV, the Committee endorsed the location within the document of the cross-reference to the list of conventions in Appendix 1 (para 1.11) and of the paragraph with the caveat on the issue of liability and compensation previously recommended by it (para 1.17).
The Committee provided its guidance on which international instruments, including those addressing compensation and liability, should be included in the Appendix. In this regard it recommended that only treaties in force should form part of the list but that the draft resolution should provide for the Appendix being kept up to date as other relevant conventions come into force.

Under this agenda item the Committee also considered an interim report of the Comité Maritime International (CMI) on responses to its questionnaire which had been sent to national administrations. The aim was to obtain information about state practice in relation to liability and compensation for potential places of refuge situations. A report on the analysis of responses is available on the CMI website (www.comitemaritime.org) and a fuller report will be submitted to the Committee in due course.

The Committee also considered a submission by Spain in which that delegation questioned whether the existing liability and compensation regime adequately covered places of refuge situations. It was noted that the Committee would be in a better position to decide this once it had the full results of the CMI analysis. Nonetheless it was evident that the liability and compensation conventions in force had not been specifically developed to address the situation where a place of refuge was or was not granted.

Four general questions merited careful study:

1.  Does a State violate its obligations under international instruments if it allows a ship to enter a place of refuge without proper insurance?
2.  Even if the ship concerned holds the proper insurance, does the State which allows the ship to enter a place of refuge have any liability in the event the insurance cover fails?
 3.   If the shipowner loses the right to limit liability as a result of Civil Liability Convention provisions on breaking the limit, does the State which allowed the ship to enter a place of refuge have any liability?
4. Does the current regime permit the payment of fixed costs?

Meanwhile, the Committee noted that the 1992 IOPC Fund Assembly had established an Intersessional Working Group to assess the adequacy of the international compensation system created by the 1992 Civil Liability and Fund Conventions, and that the questions raised in the Committee could be relevant to that Group's assessment.

Proposal for a Western European PSSA
The legal implications of a proposal to designate a Western European Particularly Sensitive Sea Area (WE PSSA) was discussed by the Committee. The proposal had been approved in principle by the Marine Environment Protection Committee (MEPC) in July 2003.

The Committee took note of comments made by the Division for Ocean Affairs and the Law of the Sea of the United Nations (DOALOS) on the relationship of the PSSA designation and the United Nations Convention on the Law of the Sea (UNCLOS), in particular article 211(6). In so doing it noted that these were intended only as a contribution to the debate and that it was ultimately for States themselves to interpret the Convention.

Views were divided on the legitimacy of the designation of the WE PSSA and several delegations noted the need for further study of the legal implications. The Committee however also noted that it should not engage in a re-argument of the technical case for the designation of the PSSA or its associated measure, since these matters are beyond its purview.

Implementation of the HNS Convention
The Correspondence Group on Implementation of the HNS Convention (International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances (HNS) by Sea, 1996) informed the Committee of the outcome of a meeting of interested States which took place in Ottawa, 3-5 June 2003.

The meeting marked an important step forward in the work of the Legal Committee to promote implementation of the HNS Convention and provided the opportunity to finalize the core work on the arrangements and options for implementation of this key IMO Convention. The conclusions reached by the Group provided valuable guidance on subjects such as insurance and insurance certificates, receivers, transshipments and reporting requirements.

An overview of the HNS Convention is included on the IMO website at http://www.imo.org/home.asp?topic_id=673. Papers submitted to the Ottawa meeting, which provide further information to Member States interested in adopting and implementing the HNS Convention, are available through the Correspondence Group website (http://folk.uio.no/erikro/WWW/HNS/hns.html).

The HNS Convention is intended to add a vital link in the international compensatory regime for pollution damage at sea.
At end September 2003, the HNS Convention has been ratified by four States, representing 1.92 per cent of world merchant shipping tonnage.
For entry into force, the HNS Convention requires ratification by 12 States, 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.

Seafarer claims
The Committee encouraged Governments which had not already done so, to respond to a questionnaire on monitoring of the implementation of resolutions A.930(22) Guidelines on Provision of Financial Security in Cases 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. Only six responses to the questionnaire had been received so far.

Governments and relevant organizations were also encouraged to submit information relating to cases of abandonment, so that reports on the frequency of such incidents could be prepared.

The Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers, is due to meet for its fifth session from 12-14 January 2004 at IMO Headquarters in London.

 

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