Legal Committee - 80th Session: 11-15 October 1999

Ships’ bunkers convention
Conference proposed for 2000-2001

The Committee agreed to propose holding a diplomatic conference to adopt an international convention for liability and compensation for damage caused by oil from ships' bunkers during the next two years. The aim of the proposed Convention would be to establish a regime for spills of oil, when carried as fuel in ships' bunkers, as current regimes covering oil spills do not include bunker oil spills.

The proposal for a conference will be recommended to the Council which meets prior to the IMO Assembly in November.

Work on the draft bunkers convention began in 1995 following a submission by several delegations to the Committee’s 73rd session which proposed the adoption of an international regime for liability and compensation for damage in the event of damage caused by oil from ships' bunkers.
Experience of bunker spill clean-ups had illustrated the need for an international regime. Many general cargo ships carried more oil as bunkers than tankers as cargo and it has been estimated that approximately 130 million tonnes of oil is carried on the world's seas as cargoes at any one time. Bunker spills were also more expensive to clean up.

The Committee noted that sufficient progress had been made on developing the draft of the convention to ensure its successful adoption at a conference and subsequent entry into force.

The draft bunkers convention provides a free-standing instrument covering pollution damage only.

During the session, the Committee reviewed the draft articles in the proposed convention and agreed on the text of a number of articles.

The Committee decided to proceed on the basis of a definition of "shipowner" similar to that found in the 1976 Convention on Limitation of Liability for Maritime Claims (LLMC), which identifies a small group of responsible persons as the shipowner.

The Committee incorporated into the draft convention wording to require the registered owner to maintain compulsory insurance cover. The Committee also decided to maintain a requirement for direct action - this would allow a claim for compensation for pollution damage to be brought directly against an insurer.

The draft bunkers convention includes articles on:

the scope of application
to cover only pollution damage in the territory, territorial sea, exclusive economic zone of a contracting State;

liability
establishes a small group of persons as the shipowner, who will be responsible for pollution damage caused by any bunker oil on board or originating from a ship;

limitation of liability
addresses the right of the shipowner to limit the liability under national or international regimes;

compulsory insurance
requires insurance or other financial security to be maintained to cover the shipowner's liability under the convention;

direct action
would allow a claim for compensation for pollution damage to be brought directly against an insurer; and

entry into force criteria
 


The draft convention is modelled on the International Convention on Civil Liability for Oil Pollution Damage, 1969.

 

Draft amendments to the 1974 Athens Convention (provision of financial security)

The Committee reviewed a draft protocol to and draft amendments to the 1974 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea. The aim is to introduce the requirement of compulsory insurance for passenger claims.

The Athens Convention of 1974, and its 1990 Protocol, make a carrier liable for damage or loss suffered by a passenger if the incident causing the 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 with intent to cause damage, or recklessly. The 1990 Protocol - which has not yet entered into force - increased the limits of compensation payable in the event of death to around US$225,000.

The 1990 Protocol has only been ratified by three States to date.

Opinions were divided on whether the limits established in the 1990 Athens Protocol should remain the same or be amended. Several delegations indicated that the reason for not becoming a party to the Protocol was the fact that it provided for limits which were considered too high. Other delegations were of the view that the limits were too low.

The Committee agreed to incorporate a provision to ensure compatibility with treaties regulating nuclear liability.

The Committee agreed on the proposed draft text for a number of other amendments but decided the work should continue at the next session, scheduled for March 2000, to resolve outstanding issues.

The Committee agreed that the draft would likely be sufficiently advanced for it to be considered for adoption at a diplomatic conference in the 2002-2003 biennium.

 

Draft resolution on Guidelines on shipowners’ responsibilities in respect of maritime claims

In connection with provision of financial security for other claims (ie other than passenger claims), the Committee approved a draft resolution incorporating IMO Guidelines on shipowners’ responsibilities in respect of maritime claims for submission to the 21st Assembly in November.

The guidelines are intended to encourage all shipowners to take steps to ensure that claimants receive adequate compensation following incidents involving their ships - in other words, to establish the minimum insurance cover that ships should carry.

 

Draft Wreck Removal Convention

The Committee reviewed a revised draft of the proposed Wreck Removal Convention, which 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 urged the Correspondence Group on wreck removal to continue developing the draft text and to report at the next session.

The draft Convention covers:

reporting and locating ships and wrecks
covering the reporting of casualties to the nearest coastal State; warnings to mariners and coastal States about the wreck; action by the coastal State to locate the ship or wreck).

determination of hazard
sets out who is responsible for determining whether a hazard exists when the wreck or ship is beyond territorial waters, based on a list of specific criteria, including depth of water above wreck and proximity of shipping routes;

rights and obligations to remove hazardous ships and wrecks
sets out when the shipowner is responsible for removing the wreck and when a State may intervene;

financial liability for locating, marking and removing ships and wrecks
;

time-bar
sets a time limit for claims for compensation;

jurisdiction
sets out jurisdiction(s) where actions for compensation may be brought;

financial security
sets out security required to cover liabilities regarding claims for compensation under the Convention;

settlement of disputes
.



Correspondence group on HNS convention implementation set up

The Committee agreed to establish a correspondence group to review progress and any issues relating to 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 compensation to be paid to victims of accidents involving hazardous and noxious substances, such as chemicals.

The Convention to date has no contracting parties and will only enter into force 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.

The aim of the correspondence group is to provide a forum for an exchange of views concerning HNS implementation issues and to follow the implementation process in States. It aims to provide guidance on issues regarding the implementation and operation of the HNS Convention, with a view to an early entry into force of the HNS Convention at a global level.

 

IMO/ILO working group on seafarer claims meets

The 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 met during the session. (See separate article).

The Committee noted that the full report on the outcome of the meeting would be submitted to the next session. The Working Group reports to the IMO Legal Committee and to the ILO Governing Body.