IMO: LEGAL COMMITTEE, REPORT OF THE 94TH

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E.O. 12958: N/A
TAGS: EWWT AORC ELAB PHSA PHUM UK
SUBJECT: IMO: LEGAL COMMITTEE, REPORT OF THE 94TH
SESSION, LONDON, 20-24 OCTOBER 2008


1. SUMMARY: The Legal Committee (LEG) of the
International Maritime Organization (IMO) held its
ninety-fourth session at the IMO Headquarters in
London, 20-24 October 2008, under the chairmanship
of Professor Lee-Sik Chai (Republic of Korea). The
Legal Committee discussed, among other issues,
provision of financial security in cases of
abandonment of seafarers and for crew claims
relating to death and personal injury, the
development of a possible protocol to the Hazardous
and Noxious Substances(HNS) Convention, and the
fair treatment of seafarers in the event of a
maritime accident. The Committee re-elected
Professor Chai as Chairman for 2009 by acclimation
and also elected Mr. Kofi Mbiah (Ghana) and Mr.
Walter de Sa Leitao (Brazil) as Vice-Chairmen. END
SUMMARY.


2. Delegations from seventy-nine States, associate
member Hong Kong, and twenty-two (22) other
intergovernmental and non-governmental bodies,
including the International Labor Organization
(ILO),attended. The U.S. delegation consisted of
representative Captain Chuck Michel, U.S. Coast
Guard (USCG); alternate representative Lieutenant
Amber Ward, USCG; and the following advisers: Mr.
Charles Darr, USCG; Mr. Warren Marwedel, Maritime
Law Association; and Mr. Douglas Stevenson,
Seamen's Church Institute.

Provision of Financial Security
--------------


3. ABANDONMENT AND CREW CLAIMS. The Committee
noted the reports of the seventh and eighth
sessions of the Joint IMO/ILO ad hoc Expert Working
Group on Liability and Compensation regarding
Claims for Death, Personal Injury and Abandonment
of Seafarers (EWG) held at the ILO Headquarters in
Geneva, Switzerland in February and July 2008. The
United States introduced a joint paper with France
and the UK, document LEG 94/5/2, intended to
increase awareness of the seriousness of the
problems of abandonment and crew claims, and to
encourage the members of LEG to support the EWG's
development of a binding international instrument
to provide adequate financial security in cases of
abandonment and for crew claims relating to death
and personal injury. Thirty delegations expressed
their support for the paper and there was unanimity
among those delegations that the EWG should
continue its work and develop draft mandatory
provisions. The USDEL also gave a presentation on
abandonment of seafarers that was attended by
approximately 100 delegates and drew nearly as many
requests for materials. LEG 94 unanimously
approved the EWG's revised terms of reference and
encouraged the EWG to formulate appropriate
recommendations to the Committee and to submit the
outcome of the 9th session (2-6 March 2009) to LEG

95.


4. DEVELOPMENT OF A SINGLE MODEL COMPULSORY
INSURANCE CERTIFICATE. The International Conference
on the Removal of Wrecks, 2007, adopted a
resolution which invited the Committee to develop a
model for a single insurance certificate which may
be issued by States Parties in respect of ships,


under the relevant IMO liability and compensation
schemes. LEG 94 reviewed a draft prepared by the
Secretariat and, noting that there would be several
legal and practical issues to address and resolve,
the Committee agreed to establish an informal
correspondence group to work intersessionally.

Implementation of the HNS Convention:
development of a possible draft protocol
--------------


5. The Committee considered a draft Protocol to the
International Convention on Liability and
Compensation for Damage in Connection with the
Carriage of Hazardous and Noxious Substances by
Sea, 1996 (HNS Convention),which was adopted in
1996 but has not yet entered into force. Three key
issues were previously identified as preventing the
Convention from entering into force: (1) complexity
regarding the reporting of packaged goods, (2)
problems regarding contributions to the Liquefied
Natural Gas (LNG) account, and (3) the non-
reporting of contributing cargo. The draft
Protocol was prepared by the HNS Focus Group and
adopted by the 4th session of the 1992
International Oil Pollution Compensation (IOPC)
Fund Administrative Council (acting on behalf of
the 1992 IOPC Fund Assembly).


6. There was, in principle, general agreement that
the best way to facilitate the Convention's
entrance into force as soon as possible was to
adopt an HNS protocol. The majority of delegations
felt there was a need for a Protocol in order for
the Convention to enter into force; however, some
delegations were concerned about the problems it
may pose for States that had already become
Contracting Parties.


7. Packaged HNS. The Committee adopted the
proposal introduced by IOPC Funds which involved
the possibility to increase the limits of liability
of the shipowner in cases where the damage was
caused by packaged HNS, by both bulk and packaged
HNS originated from the same ship or, where it was
impossible to assess whether the damage had been
caused by packaged or bulk HNS from that ship.
There was general agreement that the difficulties
in collecting data and reporting on packaged HNS
could be overcome by not requiring packaged goods
to be included in contributing cargo and increasing
shipowner liability as a compromise. Most
delegations were prepared to accept a moderate
increase in shipowner liability on packaged HNS,
maintaining the principle of shared liability of
shipowner and cargo interests.


8. Contributions to the LNG Account. The Committee
approved a number of proposed amendments relating
to LNG and also considered proposals for changing
the entity liable for contributions to the LNG
account from the titleholder to the receiver to
eliminate inconsistencies with other contributing
cargo regimes in the Convention and provide for a
more equitable distribution of financial
responsibility between developed and developing
countries. A majority favored making the receiver
liable in the first instance and giving the option


for its substitution by the titleholder through an
agreement between titleholder and the receiver.


9. Submission of contributing cargo report.
Although the Convention requires Contracting States
to submit data on contributing cargoes received
(when depositing the instrument evidencing consent
to be bound and annually thereafter),few have done
so. The Committee considered a proposal to require
States to submit reports as an essential
precondition for the validity of any expression of
consent, and considered related proposals
concerning remedies to ensure annual submission of
reports up until and after the Convention's entry
into force (e.g. refusal to accept expressions of
consent, temporary suspension of contracting
status). Most delegations that spoke expressed
that submission of reports on contributions was an
essential element of the Convention; in order to
obtain compensation, Contracting States need to
fulfill reporting obligations.


10. Diplomatic conference. The Committee did not
reach consensus regarding the timing of a
diplomatic conference, but agreed upon a
recommendation to Council that a diplomatic
conference be convened as soon as possible in 2010.
While many delegations were satisfied with the text
of the draft Protocol, as amended at LEG 94, many
other delegations felt the Committee should further
consider the draft at LEG 95.

Fair Treatment of Seafarers
--------------


11. LEG 93 agreed that the Joint IMO/ILO ad hoc
Expert Working Group on Fair Treatment of Seafarers
in the Event of a Maritime Accident should be
reconvened for the limited purpose of monitoring
the implementation of the Guidelines on fair
treatment on the basis of the revised terms of
reference, including the addition concerning the
collection of information. As requested by the
Committee at LEG 93, the IMO and ILO Secretariats
consulted with each other and with the social
partners with a view to determining an appropriate
time and place for the next meeting, but no meeting
has been scheduled.


12. The delegations of India and China expressed
concern over the detention of the master and chief
officer of the HEBEI SPIRIT in the Republic of
Korea (RoK). In response, RoK explained the
judicial status of the case and suggested there may
be a need to clarify certain aspects of the IMO/ILO
Guidelines. These statements and several related
statements were annexed to the report of the
Committee.


13. A number of delegations endorsed the
Secretary-General's statement that there was a need
for proper and widespread implementation of the
Guidelines, from the perspective of the seafarer
and in view of the shipping industry's growing
problem of manpower recruitment and retention. The
United States remains unable to fully implement the
Guidelines as presently drafted.



14. The Committee noted outcome of the 84th
session of the Maritime Safety Committee (MSC 84)
on the Casualty Investigation Code and the Safety
of Life at Sea (SOLAS) Convention. MSC 84 adopted
the Code as amended at MSC 83, as well as draft
amendments to SOLAS chapter XI-I, making the Code
mandatory for certain investigations conducted by
flag States. Finding that the Code contains
provisions that are in conflict with existing U.S.
law and practice, the United States had reserved
its position on the Code and objected to the SOLAS
amendment.

Technical Cooperation
--------------


15. One of LEG's outputs for the 2008-09 biennium
concerned processes for identifying qualified legal
experts who may be able to provide assistance to
developing countries in the area of maritime
legislation. The Secretariat advised the Committee
of ongoing efforts to expand the pool of experts,
and submitted for LEG's consideration proposed
measures designed to help IMO identify and maintain
a list of qualified legal experts.


LEG Work Program
--------------


16. At LEG 93, the Committee set up an informal
working group to consider what provisions of the
MSC-MEPC guidelines on the methods of work might
appropriately be incorporated to LEG's guidelines
on methods of work. The Committee reviewed the
group's recommendations at LEG 94 and intends to
make a final decision on adoption of new guidelines
at LEG 95.

Issues Related to the 2001 Bunkers Convention
--------------


17. In response to a request from the delegation of
Japan, the observer delegation of the Protection
and Indemnity (P&I) Clubs expressed a readiness to
assist in possibly collecting, in consultation with
other organizations, information on incidents of
fuel oil spills that exceeded the limits of the
shipowner's liability under the Bunkers Convention
and other international conventions.


18. The P&I Clubs and the International Chamber of
Shipping submitted a paper concerning the issuance
of compulsory insurance certificates by States
Parties to the Bunkers Convention to ships flying
the flag of non-Party States. An increasing number
of certificates will have to be issued on
expiration of the present cover on 20 February

2009. Several States Parties intervened to indicate
their willingness to issue certificates against the
presentation of blue cards, including electronic
cards, and also for the period of entry into force
of the Bunkers Convention, 21 November 2009, and 20
February 2009.


19. The delegation of the Marshall Islands raised 2
issues for the Committee's consideration: (1)
insurance certificates for bareboat charter


registered vessels, and (2) the legal status of
offshore drilling units (the Convention does not
discriminate between propelled and non-propelled
ships). The United States intervened in support of
Marshall Island on both issues. As both issues
raise complex questions of law, any further
consideration will require submission of documents.

Next Session
--------------

20. The next session of the Legal Committee is
scheduled for 30 March to 3 April 2009.

TUTTLE