Legal Committee, 105th session, 23-25 April 2018

Seafarer abandonment cases highlighted 

The increase in the number of reported cases of abandonment of seafarers was highlighted during the 105th session of IMO’s Legal Committee (23-25 April). 

A joint International Labour Organization (ILO)/IMO database recorded 55 such cases during 2017, against between 12 and 19 cases annually from 2011 to 2016.

The Committee recognized the importance of the database in resolving cases of abandonment. IMO ensures that all information received from flag States, port States as well as seafarer States is shared for verification before being released for public access on the database website. If necessary, information on actions taken or different points of view are reflected.

The Committee was also informed that after the verification of the IMO number, name, flag, type of vessel, company and registered owner, relevant Governments and organizations - including the International Transport Workers’ Federation (ITF) (who usually initiates the process) - remain informed by IMO of an abandonment case being processed on the database. They are informed again whenever there is any new information or other relevant developments included in the database. That way, relevant Governments and organizations have the continuous opportunity to comment on the accuracy of the information provided. The IMO and ILO Secretariats also work with Governments or relevant organizations in cases that necessitate their substantial involvement in order to gain resolution.

In cases of abandonment, seafarers may be left without proper supply of food and fresh water, without wages and resources for their families and with no prospect of being repatriated. The 2014 amendments to the ILO Maritime Labour Convention (MLC 2006) require shipowners to have compulsory insurance to cover abandonment of seafarers, as well as claims for death or long-term disability of seafarers. These amendments were based on guidelines which were developed by a joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding claims for Death, Personal injury and Abandonment of Seafarers, which reported to both IMO's Legal Committee and ILO's governing bodies.

The Committee requested the IMO Secretariat to consult with the ILO in order to include information related to insurance, or lack thereof, in the database for each new case. It also requested that the Secretariats of IMO and ILO to consider creating a list of competent authorities and organizations who can assist in resolving the cases.  The Committee invited proposals to further improve the database and to improve the situation with regards to seafarers to the next session.

Fair treatment of seafarers in the event of a maritime incident

The Committee was updated on guidance which is being developed by the ITF and Seafarers’ Rights International (SRI) to support the implementation of the 2006 IMO/ILO Guidelines on fair treatment of seafarers in the event of a maritime accident. An international workshop on fair treatment of seafarers was held at IMO Headquarters in 2017.

The Committee noted that work on the implementation of the Guidelines should continue at a regional level, to allow for more detailed discussions on national legislation. The first regional workshop will be hosted by the Government of the Philippines in Manila in July 2018.

A comprehensive survey conducted by SRI in 2011 2012 had suggested that the rights of seafarers, as enshrined in the Guidelines, were often subject to violation. In some cases, seafarers had been detained or imprisoned, facing criminal charges without legal assistance or other support.

Implementation of the 2010 HNS Convention

The Committee welcomed the latest ratifications by Canada and Turkey, of the 2010 Protocol to the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 (2010 HNS Convention).

This brings the instrument a step closer to entry into force – which requires accession by at least 12 States, meeting certain criteria in relation to tonnage and reporting annually the quantity of HNS cargo received in a State. The treaty requires a total quantity of at least 40 million tonnes of cargo contributing to the general account to have been received in the preceding calendar year. The treaty has now been ratified by three States, Canada, Norway and Turkey. The total quantity of contributing cargo has reached 28.7 million tonnes, or nearly 72% of that required for entry into force.
The Committee encouraged other Member States to ratify the 2010 HNS Protocol as soon as possible.

The Committee was followed by a workshop on implementation of the 2010 HNS Convention (26-27 April). The workshop at IMO Headquarters, organized in cooperation with the International Oil Pollution Compensation Funds (IOPC Funds), focused on practical issues raised by States implementing the 2010 HNS Convention, which are mainly linked to the reporting of contributing cargo that need to be in place prior to a State being able to ratify or accede to the Convention. There were also discussions on HNS incidents and risks.

Fraudulent registration of ships – added to agenda
The Committee added a new output to its agenda on "Measures to prevent unlawful practices associated with the fraudulent registration and fraudulent registries of ships", with a target completion date of 2021. 

A submission from a number of States noted that the Democratic Republic of the Congo (DRC) had denounced the fraudulent use of its flag at the last session. The fraud was discovered when the DRC was contacted by INTERPOL, requesting authorization to prosecute two vessels allegedly flying the flag of the DRC which had been involved in illicit activities. The subsequent investigations revealed the extent of the fraud: out of the 84 vessels shown under the DRC flag, 73 had been registered without the Maritime Administration's knowledge or approval since 2015.

A number of Member States have contacted the IMO Secretariat over the past few years to report similar cases of fraudulent use of their flag. Fiji reported 91 illegally registered ships under its flag in 2017. The Federated States of Micronesia (which is not an IMO Member State) reported 150 ships illegally registered under their flag in 2017. Information was circulated by IMO to ensure that port State control officers were also informed and would take appropriate action against ships fraudulently flying a flag.

During the discussion, the Committee agreed that fraudulent registration of ships was an issue that needed to be addressed. Delegations commented that the effective international regulation of ships was the responsibility of all States. Fraudulent registration was a public law issue that the Legal Committee, with its expertise, was well placed to address.

The issue of ship registration was recognised as quite complex, as it involved aspects of public international law and private law. A multi-pronged approach would be necessary to effectively address the issue and the solution would involve making accurate information about the status of a nation's registry widely, quickly and accurately available to shipowners and insurers as well as public officials. It was suggested that effective enforcement measures to discourage the practice and to prevent ships with fraudulent registration from operating should be considered.

The Committee requested the IMO Secretariat to conduct a study on the cases received and to provide information on the capabilities of IMO’s Global Integrated Shipping Information System (GISIS) to address the issue, to potentially include contact points, sample certificates and a listing of registries. 

Autonomous vessels – scoping exercise and gap analysis added to agenda

The Committee agreed to include on its agenda a new work programme item on maritime autonomous surface ships (MASS), with a target completion year of 2020.

The aim is to carry out a gap analysis of existing liability and compensation treaties and other instruments emanating from the Legal Committee and a scoping exercise in relation to maritime autonomous surface ships. This will complement a scoping exercise to be carried out by the Maritime Safety Committee (MSC) on autonomous vessels. The Committee invited concrete proposals and comments on the new output and a plan of action to LEG 106 for consideration, taking into account the outcome of MSC 99 (May 2018) and MSC 100 (November 2018).  

During the discussion, delegations noted the need to take into account the significant impact the introduction of MASS would have on seafarers. It was also stated that that the inclusion of this output on the work programme of the Legal Committee did not anticipate the position by Member States as to whether MASS were permissible under international law.

The issue of MASS also raised various questions in relation to the United Nations Convention on the Law of the Sea (UNCLOS). 

The Committee noted information provided by the Comité Maritime International (CMI) on the work of its International Working Group (IWG) on unmanned ships, which has been set up to to study the current international legal framework and considered what amendments and/or adaptions and/or clarifications may be required in relation to unmanned ships. So far, eight IMO conventions had been analysed by CMI: SOLAS, MARPOL, COLREG, STCW, FAL, SAR, SUA and SALVAGE.

Legal advice to FAL Committee

The Committee agreed legal advice to be provided to the Facilitation Committee, at its behest, in relation to the legal nature of the appendices to the Convention on Facilitation of International Maritime Traffic (FAL). The appendices include standardised forms for documents which public authorities can demand of a ship on arrival/departure. 

Technical cooperation activities related to maritime legislation

The Committee noted that a second workshop on general principles of drafting national legislation to implement IMO conventions will take place at IMO Headquarters from 1 to 5 October 2018, following the success of the first drafting workshop last year. The workshop is aimed at qualified lawyers, policymakers, legislative advisers and/or drafters, who are responsible for the implementation of IMO conventions into domestic legislation.

New GISIS module on National Maritime Legislation

The Committee welcomed the establishment of a new module on GISIS on National Maritime Legislation, developed to enable Contracting Governments or Parties to directly upload their national maritime legislation. The module, which will be accessible to all Member States, will be launched soon.