Legal Committee - 81st Session: 27-31 March 2000
agrees draft convention on bunker oil liability
At its 81st session held between 27-31 March 2000, the Legal Committee
completed its consideration of the draft international convention on civil liability
for bunker oil pollution damage. It agreed that the draft convention
should be forwarded to a diplomatic conference for adoption. The Committee requested
Council that the diplomatic conference be convened for a period of one week,
preferably to take place during the first half of 2001.
In his opening remarks, the IMO Secretary-General Mr William A. ONeil,
said the adoption of international rules on liability and compensation for pollution
damage caused by bunker fuel oil was not before time. He reminded the Committee
that when the HNS Convention was drafted, a proposal to include bunker fuel
oils was rejected on the understanding that the loophole left by this omission
would be filled as soon as possible by a separate treaty instrument. A bunkers
convention would complete the task initiated by the Committee more than thirty
years ago, namely, the adoption of a comprehensive set of unified international
rules governing the award of prompt and effective compensation to all victims
of pollution from ships.
Mr. ONeil emphasised that the task was probably more important now than
ever before. Incidents such as the Erika would test the ability of the
1992 Civil Liability and Fund Conventions to provide adequate compensation,
as it seemed quite possible that these limits could prove to be too low. In
this connection he noted how inadequate the limits provided for in the parent
conventions of 1969 and 1971 would be to provide compensation for damage occurring
in the waters of those States which are still Party to these treaties. In this
connection he called upon States to denounce these instruments at the earliest
opportunity and to become parties to the 1992 Protocols. This call he held to
be even more important given that a Conference to be convened by IMO in September
this year was expected to adopt rules which will accelerate the winding up of
the 1971 Fund Convention in the very near future.
The Committee considered a submission - prepared by Norway at the Committees
earlier request - for a protocol to the Athens Convention Relating to the
Carriage of Passengers and Their Luggage by Sea, 1974. The protocol is intended
to provide for enhanced compensation, to establish a simplified procedure for
updating limitation amounts, and to make insurance for the benefit of passengers
A key issue is whether the limitation amount in respect of compulsory insurance
should be calculated on a per ship or per capita basis.
Besides the basic text prepared by Norway, the Committee considered alternatives
proposed by Japan and the International Group of P&I Clubs.
The P&I Clubs proposed that limitation should be per ship rather than per
capita. Their argument centred on the example of modern cruise ships: they were
able to carry so many passengers that it was unlikely the P&I Clubs would
be able to provide insurance or other financial security for such vessels on
a per capita basis. Yet if the P&I Clubs withdrew, there was no other alternative
in the market place to provide such cover.
The delegation of Japan introduced a document containing a proposal based on
the Montreal Convention on air transport for a two tier system for death or
personal injury of passengers. Under the first tier, the carriers liability
would be strict but limited; while under the second tier the carriers
liability would be unlimited but dependent upon proof of fault.
The basic draft stated that a carriers compulsory insurance or other form
of financial security should be limited to [so many] units of account per passenger
per carriage. The P&I Clubs proposed it should be limited in aggregate in
respect of each ship.
The Committee discussed the issue at length, with no conclusion being reached.
However, several delegates made the point that it would be unacceptable to have
a system where a passenger on a vessel carrying, say 3000 people, was at a disadvantage
- in terms of making a claim in the event of death or injury - to a passenger
on a vessel carrying substantially fewer people.
Most delegates were in favour of the basic text, but some were prepared to consider
alternatives. The Committee decided the issue should be further considered,
bearing in mind a number of points that were made, including:
The Committee recognized the need for further informal discussions to try to
narrow the gap between different positions. It also called for greater participation
by other interested delegations and observer delegations if progress was to
The Committee considered the findings 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 from 11-15 October 1999,
and approved continuation of its work. In his opening remarks the Secretary-General
had commended the Working Groups progress. He said he could not think
of a more relevant and worthy subject in the legal field requiring co-operation
between IMO and the International Labour Organisation.
A paper (LEG 81/6) reported on the intersessional work of the correspondence
group on wreck removal.
The co-ordinator of the Correspondence Group highlighted progress on matters
such as the definition of wreck, preventive measures and hazard, rights and
obligations to remove hazardous wrecks, reporting and locating of wrecks, financial
liability for locating, marking and removing wrecks and contribution from cargo.
He hoped the Committee could progress speedily in considering the draft convention
and would soon be in a position to recommend the convening of a diplomatic conference
during the 2002-2003 biennium.
One delegation, supported by other delegations, expressed concern about the
proposal to include in the definition of wreck the notion of "uncontrolled
ships". In this connection the delegation pointed out that, as part of
normal operations, a vessel could be for technical reasons "under no command"
for a limited period of time. That vessel, concluded the delegation, should
not fall under the definition of wreck.