IMO update: LEG 103 – what you need to know
If you think IBIA is bureaucratic, you should try sitting in on the many various Committee and Sub-Committee meetings at the International Maritime Organization (IMO). But you don’t have to, because IBIA monitors it for you. IMO’s Legal Committee (LEG) is one of the pieces of the puzzle. It is a subsidiary body of the Council set up to deal with legal questions.
We provide a summary of what happened at LEG 103, which took place at IMO’s London HQ on June 8-10. Some of it has the potential to impact the bunker industry directly, other areas have a more indirect impact but are important to the maritime sector overall.
HNS Convention for cargoes considered hazardous and noxious substances
The 1996 HNS Convention, as modified by the 2010 HNS Protocol, is not yet in force, and it may not come into force for some time – but when it does it may be relevant for cargoes carried by bunker tankers. HNS stands for hazardous and noxious substances, and the HNS Convention is meant to plug gaps in the existing global network of marine liability and compensation conventions to provide a uniform and comprehensive liability insurance scheme to cover costs in the event of damage caused by and HNS incident during sea transport. Such international liability and compensation regimes are in place for oil as cargo under the International Convention on Civil Liability for Oil Pollution Damage (CLC Convention) and the associated International Oil Pollution Compensation Funds (IOPC Funds), and for bunker fuel held in ship’s tanks under the under the International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunkers Convention).
The HNS Convention covers over 2,000 types of substances such as chemicals, refined oil, acids, fertilizers, alcohols, LNG and LPG. It seems to overlap with what is covered by the IOPC Funds, but may come into play for bunker tankers that carry large quantities of products that are not “contributing oil” as per the IPOC Fund definition, such as gas oil, lubricating oil, marine diesel and a range of other chemicals some bunker tankers may be involved in transporting, such as catalytic cycle oil, gas oil blend stocks, catalytic cracker feedstock to mention some.
LEG 103 discussed the report of a correspondence group (CG) which reported on the publication of a brochure entitled “The NHS Convention: Why is it Needed”, work done on HNS incident scenarios and drafting an Assembly resolution on implementation and entry into force. The CG’s mandate was extended to prepare a presentation on HNS incident scenarios, inviting statistics input from the International Group of P&I Association, and draft a resolution on implementation and entry into force of the 2010 HNS Protocol for LEG 104 to consider.
Authority to issue insurance certificates under the CLC and HNS Convention (relating to pollution damage)
The Bunkers Convention expressly provides for delegation of authority to issue liability insurance certificates, but the CLC and HNS Conventions, which were drafted prior to the Bunkers Convention, do not – and it is felt that State Parties need uniform IMO regulation to confirm they have the right to delegate such authority. LEG 103 considered three ways to do this: .1 an Assembly resolution to be prepared by LEG; or .2 a resolution adopted by a conference of the State Parties to provide a uniform interpretation of the CLC; or .3 an amendment of the Conventions themselves through a Protocol.
It was felt that only option .1 would provide a speedy process desired, although IBIA was informed that it will not have the same legal power and give the same clarity in implementation as the other two options. France will coordinate an intersessional correspondence group (CG) to further develop the draft Assembly resolution to allow for the delegation of authority to issue insurance certificates under the CLC and the HNS Convention, in the hope the same resolution could work for both.
Call for international convention regarding the judicial sale of ships (clearing maritime liens)
LEG 103 debated a proposal to develop a new convention on foreign judicial sales of ships and their recognition, in order to ensure that the purchaser of the ship can be confident of obtaining a clean title to the ship, free of any pre-existing mortgages, liens or other encumbrances. Maritime liens are not always extinguished in connection with a judicial sale as it is not recognised by all jurisdictions. The co-sponsors, China, South Korea and Comité Maritime International (CMI), argued that there is a compelling need to provide a solution to common problems. A convention would oblige the ship’s registry to facilitate the process and prohibit arrest of ships for claims attached to a ship prior to a judicial sale.
There was a lengthy debate regarding whether IMO was the right place for such a convention, with varying views. Some said IMO should develop a convention in collaboration with UNCTAD. Although there was some support for the proposal, it was not kept on the agenda for the next session (LEG 104) although it may be brought in again as proposal for new output in the future. CMI accepted the Committee’s decision and said it intends to raise the matter with other relevant international bodies, and may bring it back to the IMO at a future date.
The plight of seafarers – abandonment, fair treatment and piracy
Seafarers aren’t always treated well though the International Labour Organization (ILO) Maritime Labour Convention (MLC), which entered into force in 2013, offers protection. LEG 103 discussed the abandonment of seafarers, who are often left for months without pay and basic care. MLC amendments have been adopted to provide financial security in the event of seafarers suffering abandonment, personal injury or death which will enter into force on January 18, 2017. As of March this year, the ILO’s Abandonment of Seafarers listed 192 abandoned merchant ships, some dating back to 2006. Due to the high number of unresolved cases LEG will keep the issue under consideration. LEG 103 also discussed the implementation of the 2006 Guidelines on fair treatment of seafarers in the event of a marine accident, and agreed that different national approaches could be streamlined through the development of guidance for Member States to achieve uniform and consistent implementation.
There were no submissions on piracy to LEG 103 but India raised two issues; the lack of flag State support for seafarers in captivity, and the fact that many have short contracts meaning shipowners would not continue to pay their wages during captivity. India was invited to submit a document to the next LEG session.
Formulating national regulation to bring IMO instruments into force
With the implementation of the Mandatory Audit Scheme, the IMO Secretariat is increasingly receiving requests for assistance in drafting, updating and bringing into force national maritime legislation for the effective implementation of IMO instruments. The IMO’s Legal Affairs office is developing training aimed at improving understanding of the principles and legal implications of IMO instruments, to help lawyers and legislative drafters. The Committee agreed that such training is important and that internet and online training can complement these efforts.
Reducing administrative burden and more use of electronic tools
LEG had a lengthy debate about replacing multiple civil liability insurance certificates with just one “single model certificate” for multiple conventions, but the Committee did not have the appetite to take up this matter because it is too complex, and similar discussions have led nowhere in the past.
IMO’s Council has decided that it would be good to reduce the administrative burdens associated with IMO regulations. One of the ways to achieve this would be to streamline electronic reporting through the expanded Global Integrated Shipping Information System (GISIS) system.
State Parties are encouraged to use the GISIS modules on “Recognized organizations” to fulfil the relevant reporting requirements as required by the 2001 Bunkers Convention, the 2002 Athens Convention and the 2007 Nairobi Wreck Removal Convention, and urged to expedite the implementation of electronic certificates under CLC 1969, CLC 1992 and the 2001 Bunkers Convention.
Status of conventions
Canada informed LEG 103 that the Canadian Parliament had adopted, in 2014, legislation for the implementation of the 2010 HNS Protocol in national laws and will be able to formally ratify in 2018.
Australia advised LEG 103 that it intends to ratify the Ballast Water Management (BWM) Convention, subject to approval by Parliament, by the end of 2016, but said its fleet too small to trigger entry into force. Peru formally handed over its instrument of accession to IMO on June 10, bringing the number of States party to the BWM Convention to 51, representing 34.87% of the world’s merchant fleet tonnage, just 0.13% short of the entry into force threshold. The convention will enter into force one year after meeting the tonnage threshold.
Canada informed LEG 103 that it is considering ratification of the 2007 Nairobi Wreck Removal Convention (WRC 2007) and Greece informed the Committee that it was making good progress towards its ratification.
By Unni Einemo