Legal Committee, 110th session, (LEG 110) 27-31 March 2023

Addressing ship-to-ship oil transfers and tankers in the “dark fleet”

The dangerous practice of ship-to-ship transfers in the open ocean, as well as the methods used to obscure ship identities and turning off AIS transponders, were discussed by the Legal Committee of the International Maritime Organization (IMO). The committee was meeting for its 110th session at IMO Headquarters in London (27-31 March). 

The Committee considered a document submitted to the session which raised awareness of the consequences and concerns for the global liability and compensation regime of the increase in ship-to-ship transfers in the open ocean. The Committee noted that these undermined the spirit of the regulation of ship-to-ship operations of tankers as prescribed by IMO’s International Convention for the Prevention of Pollution from Ships (MARPOL). 

The Committee was informed that a fleet of between 300 and 600 tankers primarily comprised of older ships, including some not inspected recently, having substandard maintenance, unclear ownership and a severe lack of insurance, was currently operated as a 'dark fleet' or 'shadow fleet' to circumvent sanctions and high insurance costs. This increased the risk of oil spill or collision. This could also result in a participating shipowner evading its liability under the  relevant liability and compensation treaties (e.g. International Convention on Civil Liability for Oil Pollution Damage (CLC) and the International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunkers Convention)) in the case of other ships, placing also an increased risk on coastal States and the International Funds for Compensation for Oil Pollution Damage. 

Following the discussion, the Committee considered that ship-to-ship transfers in the high seas were high risk activities that undermined the international regime with respect to maritime safety, environmental protection and liability and compensation needed to be urgently addressed. 

The Committee broadly supported the recommended measures outlined in the original submission, including:  

  • flag States are called upon to ensure that tankers under their flag adhere to measures which lawfully prohibit or regulate ship-to-ship transfers, and that such vessels further adhere to the spirit of the safety requirements in IMO conventions and practice safe shipping standards to minimize the risk of oil pollution; 

  • flag States should consider requiring that vessels update their ship-to-ship operations manuals to include notifying their flag State when they are engaged in a mid-ocean operation; 

  • port States should ensure enforcement of the safety and liability conventions on these vessels and ensure that ship-to-ship transfer operations are conducted in accordance with the applicable safety requirements in IMO conventions; and 

  • should port States become aware of any ships "going dark", they should consider subjecting such vessels to enhanced inspections as authorized, and notifying the respective vessel's flag administration, as appropriate. 

Noting the interest expressed by many delegations in contributing to the drafting of an Assembly resolution on this matter, as proposed by Spain, the Committee invited interested delegations to contact the delegation of Spain in this regard. The IMO Assembly meets 27 November to 6 December 2023. 

The Committee decided that other UN agencies should be informed of the issues discussed and of concerns and challenges raised, so that they can also take action for matters under their remit. 

Preventing unlawful practices associated with fraudulent registration and fraudulent registers of ships    

The Committee continued its work on measures to prevent unlawful practices associated with fraudulent registration and fraudulent registers of ships. Such illicit practices undermine the foundation of the overall IMO regulatory regime.  Examples were submitted to the Committee.  

 The Committee agreed that access to information was key to combating the problem of fraudulent registration and fraudulent registries of ships, and that more information needed to be collected in this regard, to be made readily available to Member States, flag States and port States. In this context, there was broad support in principle for the creation of a database for flag States and port States to share information on fraudulent registration and fraudulent registries of ships. There was also support for the development of methods for validating the authenticity of ships' certificates. 

 The Committee agreed that the Secretariat should consult with S & P Global (the designated entity for IMO numbers and tonnage figures) and submit a document to the next session of the Committee describing the different options with regard to the proposed database on fraudulent registration and fraudulent registries of ships, together with cost implications. 

 The Committee established a correspondence group to: define and develop the elements of "due diligence" to be exercised in the process of registration of ships under the flag of a State when involving vessels in the IMO Unique Company and Registered Owner Identification Number Scheme; consider the additional factors raised with regard to the abuse of the IMO identification number schemes, how widespread the issue is and the possible loopholes in the system; and submit a report to LEG 111.  

UN Convention on Conditions for Registration of Ships 

The Committee noted a delegation’s intervention of its plans to submit a proposal to review the 1986 UN Convention on Conditions for Registration of Ships. The treaty, which has not yet entered into force, establishes international standards for the registration of vessels in a national registry, including references to the genuine link, ownership, management, registration, accountability and the role of the flag State. 

The IMO Secretariat advised that  Article 68 of the IMO Convention which provides that, "Subject to approval by a two-thirds majority vote of the Assembly, the Organization may take over from any other international organizations, governmental or non-governmental, such functions, resources and obligations within the scope of the Organization as may be transferred to the Organization by international agreements or by mutually acceptable arrangements entered into between competent authorities of the respective organizations". It was therefore possible for IMO to begin work on the 1986 Convention on Conditions for Registration of Ships. With the consent of the United Nations General Assembly and the IMO Assembly, such an output could go forward to the Legal Committee if the Members so decided. 

Study to address issues arising in connection with fraudulent registration and fraudulent registries of ships 

The Committee noted the interim report on a study to address issues arising in connection with fraudulent registration and fraudulent registries of ships and possible measures to prevent them. 

The study group includes the United Nations Conference on Trade and Development (UNCTAD), the World Maritime University (WMU), the IMO International Maritime Law Institute (IMLI) and other interested parties.  

The Committee noted the way forward proposed in the interim report, including examining the correlation between the incidents of fraudulent registration mentioned by certain participants and other fraudulent activities; and examining the prospects of success of certain best practices and actions proposed by the participants to tackle the problem.  

The Committee encouraged Member States to take part in the study, given the low rate of participation to date (only 31 registries, accounting for 22.75% of the world fleet, responded to the questionnaire). 

Fraudulent use of the IMO identification number schemes  

The Committee was informed about instances of fraudulent use of the IMO identification number schemes by companies and matters related to the IMO identification number schemes. 

The Committee agreed that more information on the abuse of the IMO number scheme, including how widespread the problem was and whether there were loopholes in the system, should be provided. 

Guidelines for port State and flag State authorities on abandonment cases 

The Committee adopted a resolution (LEG.6(110)) providing Guidelines for port State and flag State authorities on how to deal with seafarer abandonment cases. 

The Guidelines on how to deal with seafarer abandonment were adopted by the first meeting of a joint International Labour Organization (ILO)–International Maritime Organization (IMO) Tripartite Working Group, which met in December 2022, following development by an intersessional correspondence group reporting to the Legal Committee.  

The Guidelines seek to address the significant rise in reported cases of abandonment of crews.   

The Guidelines draw on relevant ILO international labour standards, notably the Maritime Labour Convention, 2006, as amended (MLC, 2006), including its most recent amendments; an earlier joint ILO-IMO resolution adopted in 2001 (resolution A.930(22)); relevant IMO international frameworks and agreements; and relevant trends and developments in regional and national law and practice. 

The Guidelines set out procedures to be taken by States if a shipowner fails to fulfil their obligations to arrange and cover the cost of repatriation of seafarers, outstanding wages and other contracted entitlements, and the provision of essential needs, including medical care. In these circumstances seafarers are then considered abandoned. These procedures include developing, in cooperation with seafarers’ and shipowners’ organizations, national Standard  

Operating Procedures (SOPs) to explicitly define the liabilities and obligations of the competent authority and the roles to be played by the various national stakeholders. These stakeholders include the relevant national seafarers’ welfare boards, shipping agencies, seafarers’ and shipowners’ organizations, seafarer welfare organizations, seafarer recruitment and placement services, and others. 

Abandonment cases  

The Committee noted information from the IMO/ILO joint database of abandonment of seafarers, revealing that from 1 January 2022 to 23 December 2022 a total number of 109 new cases have been reported. Of these 109 new cases, only 41 had been resolved.  

Although a direct linkage is unclear, since the outbreak of the COVID-19 pandemic there has been another, alarming spike in cases. In 2020, the total number of reported cases was 85 and of these, 50 cases had so far been resolved. In 2021, the total number of reported cases was 95, and of these, only 47 have been resolved. Approximately 21 of the cases that were reported since 1 January 2020 were related to the COVID-19 pandemic, further exacerbating the crew change situation of seafarers at the time. 

The Committee encouraged discussion relating to a solution to the problem of repatriation of abandoned seafarers; reminded Member States to ratify and effectively implement the relevant international instruments and amendments thereto; highlighted the existence of the IMO/ILO joint database; encouraged Member States to report incidents of abandonment to the database when they occurred in their ports or on vessels flying their flag; urged flag and port States to take further action to ensure the presence of financial security, as required by MLC, 2006 Standard A2.5.2, and to take appropriate action when financial security is not in place; and encouraged States to take note of the link between abandonment and forced labour, as referred to in article III of the MLC, 2006, as amended, in order to fulfil their obligations under MLC, 2006.  

Task Force to review ILO/IMO database of abandonment of seafarers 

The Committee invited concrete proposals to LEG 111, including draft terms of reference, for the establishment of a Task Force to review the joint ILO/IMO database of abandonment of seafarers. 

Fair treatment of seafarers detained on suspicion of committing maritime crimes 

The Committee discussed proposals for guidelines relating to fair treatment of seafarers detained on suspicion of committing maritime crimes. Such guidelines would aim to ensure fair treatment of seafarers in other circumstances where seafarers might be detained. 

A working group developed initial draft text for the proposed guidelines. 

Existing Guidelines on fair treatment of seafarers in the event of a maritime accident were adopted in 2006.  

The Committee established a correspondence group to further develop the draft text. The Committee agreed to establish a working group at the commencement of LEG 111 to finalize the draft guidelines as a base document for refinement at the joint ILO-IMO Tripartite Working Group to identify and address seafarers' issues and the human element (JTWG), which will meet in late 2024 

The Committee further agreed to continue consideration on the establishment of a database to record incidents where seafarers are detained; and further consider the need of designated contact points for coordination of cases of detention of seafarers, taking into account the UN Convention on Consular Relations, 1963. 

Bunker Convention - claims manual approved  

The Committee approved a Claims Manual for the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001. The 2001 Bunker Convention was adopted to ensure that adequate, prompt, and effective compensation is available to persons who suffer damage caused by spills of oil, when carried as fuel in ships' bunkers. 

Promoting liability and compensation treaties 

The Committee approved information pamphlets on the CLC, Bunkers and Nairobi Wreck Removal conventions, intended to provide information on the treaties and promote their implementation.  

Measures to assess the need to amend liability limits 

The Committee continued its work to develop methodologies which will help to assess the need to amend liability limits in the various IMO liability and compensation treaties, approving a work plan and base document for future work. The last review of the liability limits was in 2012.   

The Committee approved the work plan for the finalization of two methodologies, with a view to completion in the 2024/2025 biennium. The work is focusing initially on the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the 1996 Protocol (LLMC). A correspondence group was established.  

Revised Guidelines of Places of Refuge for Ships in need of assistance 

The Committee approved the draft Assembly resolution on Guidelines of Places of Refuge for Ships in need of assistance, following approval by the Maritime Safety Committee (MSC). The guidelines were first adopted in 2003 to provide guidance for cases where a ship is in need of assistance, but they are not intended to address the issue of operations for the rescue of persons in distress at sea (where SAR provisions shall be followed). 

The proposed revision recognizes that various organizational, operational and technological developments have taken place in a rapidly changing global maritime domain.  

The revised guidelines aim to provide the basis of an operational framework for coastal States, ships' masters, operators and/or salvors as well as other involved parties on how to handle and take a decision when a ship is in need of assistance and seeks a place of refuge. 

Among other changes, a new section on media information and management is proposed, recommending that States include in their administrations the capacities (including training) for dealing with media, and requests for information in connection with managing a ship in need of assistance seeking a place of refuge. 

Impact on shipping and seafarers of the situation in the Black Sea and Sea of Azov 

The Committee expressed grave concern over the negative impact of the Russian Federation's invasion of Ukraine on international shipping in the northern part of the Black Sea, the Sea of Azov and the Kerch Strait, the safety of commercial vessels and wellbeing of seafarers.  

The Committee supported IMO's assistance in the implementation of UNGA Resolution A/RES/ES-11/5 to establish an international register to document the Russian Federation's wrongful acts associated with the invasion of Ukraine and the damages resulting therefrom. 

The Committee invited the IMO Secretariat to contact relevant UN organizations and develop options for an assessment project on damages to commercial vessels, ports, port facilities, maritime training institutions and the marine environment in Ukraine, as well as impacts and damages with respect to seafarers, with appropriate costing, and then submit these options to the IMO Council (C 129) for consideration. 

The Committee demanded that the Russian Federation immediately cease the use of force against Ukraine, stop the atrocities and withdraw its troops from Ukraine, and abide by its obligations under relevant international treaties and conventions, in particular to ensure unhindered and free passage of vessels in the northern part of the Black Sea, the Sea of Azov and the Kerch Strait, in accordance with international law. 

At LEG 109 in 2022, the Committee issued a circular on Guidance on the impact of the situation in the Black Sea and the Sea of Azov on insurance or other financial security certificates. (LEG.1/Circ.12).   

HNS Convention: push for entry into force 

The Committee encouraged Member States to register to attend the IMO Workshop on the 2010 HNS Convention on 3-4 April. The workshop is aimed at assisting Member States in their work towards further ratifications of the 2010 HNS Protocol. The HNS Convention is the last piece in the puzzle needed to ensure that those who have suffered damage have access to a comprehensive and international liability and compensation regime. 

When in force, the treaty will provide a regime of liability and compensation for damage caused by HNS cargoes transported by sea, including oil and chemicals, and covers not only pollution damage, but also the risks of fire and explosion, including loss of life or personal injury as well as loss of, or damage to, property. An HNS Fund will be established, to pay compensation once a shipowner's liability is exhausted. This Fund will be financed through contributions paid post-incident by receivers of HNS cargoes. 

The current HNS Convention was adopted in 2010, amending a previous instrument that had been adopted in 1996. However, the 2010 HNS Convention has still not entered into force; additional States must ratify it before this can happen. 

The Committee welcomed the statements by several delegations, including Belgium, France and the Kingdom of the Netherlands, who reiterated their commitments towards ratification and further implementation of the HNS Protocol, and expected the deposit of instruments by their countries in the course of 2023 and 2024.   

The treaty has six Contracting States (Canada, Denmark, Estonia, Norway, South Africa and Türkiye).  Four of these States each have more than 2 million units of gross tonnage. The 2010 HNS Protocol needs six more States to ratify or accede to it plus the required contributing cargo to reach entry into force.  

Maritime Autonomous Surface Ships (MASS) 

The Committee noted the outcome of the first session of the joint Maritime Safety, Legal and Facilitation Committees (MSC-LEG-FAL) Working Group on MASS. The JWG has been established as a cross-cutting mechanism to address common high-priority issues identified by the regulatory scoping exercises for the use of MASS conducted by the three Committees. 

The Committee endorsed the work plan for the Working Group, including convening two sessions of the Working Group in 2023 

The Committee has previously completed its regulatory scoping exercise on Maritime Autonomous Surface Ships (MASS) (download here). 

Convention on the International Effects of Judicial Sales of Ships 

The Committee welcomed the adoption of the Convention on the International Effects of Judicial Sales of Ships, on 7 December 2022, by the General Assembly of the United Nations.  

The Convention has 23 Articles. Its central provision is contained in article 6 which states: "A Judicial sale for which a certificate of judicial sale referred to in article 5 has been issued shall have the effect in every other State Party of conferring clean title to the ship on the purchaser." Various criteria need to be satisfied for the Convention to apply and for a judicial sale to have international effects, notably compliance with the notification criteria contained in article 4 and the issuance of a certificate of judicial sale by the court where the judicial sale takes place in accordance with article 5.  Per Article 11, the Organization will serve as the repository for notices of judicial sales, using the GSIS system. 

The signing ceremony will take place in Beijing in September 2023. 

Secretary-General's Prize for Best Dissertation 

The Committee congratulated Mr. Darius Gustav Joseph (Antigua and Barbuda), a Masters student of the IMO International Maritime Law Institute, for his dissertation entitled "An Analysis of the Need for Reform to Ensure the Adequate Ratification and Implementation of IMO Instruments in Antigua and Barbuda". The dissertation was awarded the IMO Secretary-General's Prize for Best Dissertation for the academic year 2021-2022.