Legal Committee (LEG), 88th session, 19-23 April 2004

Opening address by the Secretary-General

Fair treatment of seafarers

The Legal Committee of IMO agreed to include in its work programme the development of guidelines on the fair treatment of seafarers when it met for its eighty-eighth session from 19 to 23 April 2004. The Committee also continued its work on the revision of the SUA treaties and the development of a draft convention on wreck removal.

In agreeing to include a new item on its work programme on the development of guidelines on the fair treatment of seafarers, the Committee also endorsed a proposal to establish a joint IMO/International Labour Organization (ILO) Working Group on this matter.

This decision followed a proposal that IMO, in co-operation with ILO, consider the development of appropriate guidelines based not only on the principles of UNCLOS but also on the fact that unwarranted detention was a violation of basic human rights.

Review of the SUA Convention and Protocol
The Committee continued its consideration of a revised draft protocol to the SUA Convention and Protocol prepared by the intersessional Correspondence Group. Most delegations expressed support for the revision and strengthening of the SUA Convention in order to provide a response to the increasing risks posed to maritime navigation by terrorism. Nevertheless, several delegations drew attention to the need to ensure that the prospective SUA Protocols did not jeopardize the principle of freedom of navigation and the right of innocent passage as prescribed in UNCLOS nor the basic principles of international law and the operation of international commercial shipping.

The Committee gave extensive consideration to the new offences contained in the draft. A majority of delegations favoured retention of offences related to discharges of substances causing damage to the environment. A majority of delegations also favoured the inclusion of transport offences, in particular to preserve the rights of bona fide seafarers and other innocent participants in commercial navigation.

The Committee recognized that, while there seemed to be general acceptance of the need to include provisions concerning boarding in the draft protocol, it was clear that the present draft still required further consideration. It was also recognized that the inclusion of boarding provisions implied a substantial inroad into the fundamental principles of freedom of navigation on the high seas and the exclusive jurisdiction of flag States over their vessels. The Committee accepted that the principle of flag State jurisdiction must be respected to the utmost extent, recognizing that the boarding by officials of a foreign-flag ship on the high seas could only take place in exceptional circumstances.

The Committee instructed the Secretariat to convene an Intersessional Working Group from 12 to 16 July 2004 to further elaborate the draft protocol and report to the Committee at its eighty-ninth session.

Draft Convention on wreck removal
The Committee continued with its consideration of the draft Wreck Removal Convention (WRC). The Committee considered four main issues, namely: the application of the WRC to the territorial sea; the exclusion of liability for acts of terrorism; the 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 draft Convention; and the relationship between the WRC and the existing liability regimes.

An article-by-article review of the draft WRC was carried out. The Committee approved, subject to drafting improvement, the provisions concerning objectives and general principles, scope of application, reporting of wrecks and determination of the hazard.

Interested delegations were invited to continue working intersessionally under the leadership of the delegation of the Netherlands to refine the text further.

Implementation of guidelines on claims for death, personal injury and abandonment of seafarers
The Committee urged Member States and non governmental organizations who had not already done so to respond to a questionnaire on the 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.

The fifth 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 (Joint Working Group) met in February 2004, with the sixth session of the Joint Working Group planned for early 2005.

Implementation of the HNS convention
The Committee welcomed information provided by several delegations which reported work in progress in their countries towards ratification 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 HNS Correspondence Group reported on work undertaken by the Group since the Committee's eighty-sixth session.

The Committee noted that the International Oil Pollution Compensation (IOPC) Fund had nearly completed the development of an HNS Data Base, which would include a "cargo calculator" to facilitate the reporting of contributing HNS Cargo.

The Committee was reminded that, at the time of ratification, States are obligated to provide information to the Organization on the volume of contributory cargo which had been received during the previous year, and this data is essential for the Organization to use in determining when the entry into force requirements have been met. The Secretariat was requested to monitor this information.

The HNS Convention is intended to add a vital component in the international compensation regime for pollution damage at sea. At end April 2003, it had 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.

Measures to protect crews and passengers against crimes committed on vessels
The Committee was provided with an interim analysis by the Comité Maritime International (CMI) on its ongoing work to examine State practice on how crimes committed on vessels on the high seas were handled in different jurisdictions.

The Committee noted some suggested measures to prevent crimes on vessels, including establishment of a legal scheme, adoption of a resolution or other instrument and amendments to penal codes in order to enable them to be applied to a foreign offender.