IMO Legal Committee – 105th Session – by Patrick Griggs
The Legal Committee has a new Chair – Mr. Volker Schofisch who has led the German IMO Delegation for many years. His Vice- Chair is Ms. Gillian Grant who is the Canadian Permanent Representative at IMO.
The Session was opened by the Secretary-General.
The HNS Protocol 2010 – Facilitation of entry into force.
Delegates were reminded that the HNS Convention was the final element in a global framework of liability conventions. Once the HNS Convention is in force there will be no excuse for states to refuse entry to vessels in distress.
During the course of the meeting it was announced that Canada and Turkey had deposited instruments of ratification which brings to 3 the number of states which have ratified. They each account for 2 million units of gross tonnage and, taken together, account for 28,713,155 tons of contributing cargo. The entry into force requirements (Art.46) are 12 states, including 4 states with not less than 2 million units of gross tonnage, and a total of 40 million tons of contributing cargo received in the preceding year. This means that for the entry into force requirements to be met nine more states needed to ratify, only one with more than 2 million gross tonnage of shipping. Interestingly, 72% of contributing cargo target has now been achieved. Several states reported on the good progress which they were making towards ratification. There are now reasons to feel confident that within the next few years the entry into course requirements will be met.
The IMO is continuing to organise special HNS Workshops to help states struggling with the complexities of implementation.
Needless to say the Chair encouraged states to ratify and bring into force this important convention.
Financial security for seafarers in case of abandonment.
This subject is a permanent fixture on the Legal Committee agenda. At each Session the Committee receives updates based on information logged in the IMO/ILO joint database. Much of this information is supplied by ITF who are frequently directly involved “on the ground”. As at January 19th 2018 there had been 316 abandonment incidents involving 4,020 seafarers. Of these 156 cases had been resolved, 58 cases were disputed and 50 cases were noted as “inactive”. There remained 52 unresolved cases. In 2017 the number of cases reported had increased dramatically – from 2011 to 2016 the number of cases each year had ranged from 12 to 19. In 2017 the number of reported cases of abandonment stood at 55. There followed an update on a number of the notified cases which highlighted the fact that these incidents are dynamic and it is impossible for the database to present an accurate position. The importance of ensuring that the database was as up-to-date as possible was emphasised by several delegations.
Delegates highlighted the importance of states enforcing the MLC 2006 requirement for financial security (generally through insurance) in respect of seafarer repatriation costs and liabilities. Once again several states stressed the importance of verifying reports with flag states, seafarer and port states before reports were placed on the database.
There is no doubt that for the seafarers involved in these abandonment cases the experience is traumatic and stressful and there was unanimous agreement that everything possible should be done to protect these innocent victims. In this context it was suggested that all maritime administrations should create a fund which would be available to cover the cost of supporting and repatriating abandoned seafarers.
Fair Treatment of Seafarers in the event of a maritime accident.
In 2006 IMO and ILO adopted Guidelines on the Fair Treatment of Seafarers (the Guidelines). A survey conducted by Seafarers’ Right International (SRI) in 2011-2012 indicated that the rights enshrined in the Guidelines were frequently violated. It became evident that there were widely differing views as to how the Guidelines should be implemented. In an effort to ensure that the Guidelines were applied universally and uniformly, the International Workers Federation (ITF) set about preparing guidance for states in how to apply the Guidelines. An international Workshop was organised at IMO’s London Headquarters in June 2017. A similar Workshop will take place in Manila in July 2018 and Panama has offered to host a similar Workshop to cover the Latin American region.
The Committee took note of this work and recognised that regional Workshops were to be the way forward on this topic.
Implementation of IMO Instruments.
In document LEG 105/6 Norway outlined a system which it had devised to enable CLC and Bunker certificates of insurance or other security to be issued electronically. It is recognised that the current practice of issuing these certificates manually was time consuming and required a high degree of accuracy. The system would involve machine-to-machine validation. Communication between the insurer (provider of security) would also be digital and largely automated.
This initiative was widely welcomed and delegates will be watching the progress of this Norwegian project. (It seems that Norway will be willing to allow other countries to use their system once it is up and running.)
The Committee reviewed a report submitted by the IMO Secretariat (LEG 105/7) which recorded developments in the on-going efforts to prevent acts of piracy and to deal with the consequences. It was noted that there is a growing number of piracy attacks reported in the Gulf of Guinea
The report refers to the request to the MSC to consider how “floating armouries” might best be regulated. (The need for this had arisen from the well-publicised arrest and detention of armed security personnel in India.) At MSC 98 India had suggested that Guidelines on “floating armouries” should be developed to help States, shipowners, and seafarers when involved with such vessels. This matter has now been referred to the Contact Group on Piracy off the Coast of Somalia (CGPCS) which continues to operate on an ad hoc basis.
In January 2017 the signatories to the Djibouti Code of Conduct met in Jeddah and adopted amendments to the Code which will widen its scope to cover other illicit maritime activities including human trafficking and illegal, unreported and unregulated (IUU) fishing.
For some years the Secretariat has reported on the activities of the CGPCS based on information provided by the “Legal Forum of the CGPCS”. The Forum has now been renamed the “Virtual Legal Forum” (VLF). The function of this Forum is to maintain the network of legal experts from CGPCS countries and to collate legal documents, such as national piracy laws and UN documents.
Recent topics discussed at the CGPCS, which are relevant to the Legal Committee, include the importance of recognising that the solution to the problem of piracy lies onshore, resolving the security problems posed by “Floating Armouries” and the importance for states to share information about acts of piracy so that the “kingpins and financiers” can be arrested and prosecuted.
At LEG 104 India had drawn attention to the problems arising from the practice of employing seafarers on short duration contracts which meant that these contracts could run out whilst a seafarer was in captivity. One consequence of this was that a seafarer might cease to have the right to receive wages. This matter will be considered by the Special Tripartite Committee (STC) set up under the MLC, 2006.
Technical co-operation activities on Maritime Legislation.
LEG 105/9/1 contains a report from the Secretariat on the efforts being made to offer technical assistance in the training of lawyers to understand the principles of IMO instruments and in the drafting of legislation giving effect to conventions in national legislation. Between 18 and 22 September a Workshop was organised at IMO Headquarters. This was attended by 27 lawyers, policy makers, legislative advisers/drafters from both civil and common law systems. The Workshop was regarded as a success and the Committee was informed that there would be a further Workshop in October 2018. The Secretariat has indicated that it would be willing to arrange Workshops on a regional basis.
A further tool to become generally available is an IMO publication containing the consolidated texts of all relevant conventions and related documents. This will shortly be available for purchase from IMO.
IMO International Maritime Law Institute (IMLI).
A full report on the activities of IMLI in 2017 will be found in LEG 105/9. 38 Graduates received their degrees joining an international network of 739 Graduates from 135 states. The Director of IMLI, Prof. David Attard attended and addressed the meeting
In September 2017 IMLI launched a new two year post-graduate programme leading to an M. Phil. in International Maritime Law and Ocean Policy as part of a joint exercise with WMU. The first year will be spent at WMU studying sustainability, governance and management and the second at IMLI studying international maritime law including law of the sea, shipping law, marine environmental law and maritime security law.
As in previous years IMLI has published (LEG 105/INF 2 and 3) lists of the maritime legislative drafting and dissertations of the 2017 Graduates. It was noted by the Director that all IMLI students are required to produce a maritime legislation drafting project implementing an IMO convention into domestic law.
It was reported that a three volume publication entitled “IMLI Treatise on Global Ocean Governance” had been published as part of the IMLI/Nippon Foundation Project on Global Ocean Governance.
Status of Conventions.
Information regarding the latest status of conventions is detailed in LEG 105/10.
The Committee welcomed the fact that on April 23rd 2018 Canada and Turkey had ratified the HNS Protocol 2010 bringing total ratifications to three states.
Good progress is being made with ratifications of the WRC 2007 with 41 states now having ratified. The Committee urged all states to work towards ratification of recent conventions in particular the 1996 LLMC Protocol, the 2001 Bunkers Convention, the 2002 PAL Protocol, the 2005 SUA Protocols and the HNS Protocol 2010.
Several delegations took the opportunity offered by this discussion to report on progress which their governments are making to ratify conventions. Greece and Canada announced that they were expecting to ratify the WRC shortly.
The Committee considered adding two new topics to its Work Programme.
Measures to prevent the fraudulent registration of ships.
The Committee considered a paper (LEG 105/11) submitted by Cyprus, Democratic Republic of Congo, Fiji, Germany, Morocco, Spain and Vanuatu which highlighted the widespread practice of companies obtaining false ship registration papers for nefarious purposes. It was agreed that this was a mixed public law/ private law topic which the Legal Committee should seek to deal with. At this early stage all the Committee could do was stress that it was primarily individual states who should provide effective policing. The Committee discussed various aspects of this problem and invited delegates to put forward specific proposals at the next session of the Legal Committee. The Committee also requested the Secretariat to conduct a study on reported cases. The topic will therefore be in the agenda for LEG 106 in early 2019.
Maritime Autonomous Surface Ships (MASS)
In document LEG 105/11/1 Canada, Finland, Georgia, Marshall Islands, Norway, Republic of Korea, Turkey, CMI, ICS and P & I Clubs proposed that the Committee should consider to what extent the existing maritime law conventions might need to be modified to accommodate unmanned ships. This is described at this stage as a “scoping exercise”.
In a detailed submission the CMI informed the Committee that over the past two years a CMI International Working Group had started on this scoping exercise and urged delegates to look at the material available on the CMI website.
The Committee was informed that this topic would be on the Maritime Safety Committee (MSC) agenda for its next meeting when it would be looking at the technical aspects of operating ships without crews. The work of the Legal Committee should complement and not conflict with the work of MSC.
The Committee agreed that this subject should be added to its Work Programme and that an intersessional correspondence group should be set up to advance the study between meetings bearing in mind that, unlike MSC, the Legal Committee only has one meeting in each calendar year. The target date for completing this exercise was set at 2022.
GISIS module on National Maritime Legislation.
Otherwise known as Global Integrated Shipping Information System, the idea is to provide a facility for Contracting States to communicate national legislative texts. This data will be used in conjunction with the IMO Member State Audit System whereby states submit to a periodic check on their progress in implementation of IMO Instruments.
EU General Data Protection Regulation – GDPR.
Concern was expressed at whether the current work methods of the IMO might put the organisation in breach of the terms of the GDPR which comes into force on April 25th 2018. The Secretariat confirmed that it is involved with a working group of UN Legal Advisers to examine the implications of this new European legislation.
The meeting closed on Wednesday 25 April with the finalisation of the Report.
 It is a sad fact that the UK, with the workload associated with Brexit, has no immediate plans to ratify the 2010 Protocol.
 A Workshop took place at IMO on Friday 27th April.
 The Committee agreed that in view of the two new additions to the work programme the Council should be requested to authorise an additional 3 day meeting in 2019.