82nd Session of the IMO Legal Committee
The 82nd Session of the IMO Legal Committee, under the Chairmanship of Alfred Popp Q.C., took place at the IMO Headquarters in London between 16th & 20th October 2000.
In opening the Session the Secretary General of IMO, Bill O’Neil, referred to the stranding of the Erika in December 1999 which had resulted in serious environmental damage to parts of the French coast line. He referred to the fact that the Marine Environment Protection Committee was considering the accelerated phasing out of single hulled tankers but emphasised the importance of the work which the Legal Committee would be doing in considering increases to the compensation limits in the 1992 CLC and Fund Protocols. Any increase agreed, he indicated, would be implemented under the simplified tacit acceptance procedure. The Secretary General pointed out that the “Erika” sinking in 1999 and Nakhodka incident in 1997 had highlighted the fact that the funds available under the 1992 CLC and Fund Protocols were no longer adequate to compensate victims.
The Secretary General also commended the Committee for agreeing that the Diplomatic Conference to approve the draft Convention on Bunker Pollution could take over the slot normally occupied by the Spring meeting of the Legal Committee. The date fixed for the Diplomatic Conference is March 19th to 23rd and the Conference will be held at the IMO Headquarters in London.
Provision of Financial Security – Protocol to the Athens Convention
The Committee continued with is consideration of a draft Protocol to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974. The object of the Protocol is to increase the compensation limits, review the basis of liability and provide for all operators of passenger ships to secure adequate insurance cover for their liability to passengers. Victims would be given the right to pursue their claims direct against the providers of liability insurance or other security.
Basis if Liability
This remains a controversial issue. Under the Athens Convention of 1974 the Claimant is required to prove that the carrier was at fault though that fault is presumed where a death or injury arises out of a maritime incident. Most delegations have supported a change to the basis of liability and by the time that the further discussions on this issue were concluded the Committee had decided to accept a compromise which would involve a compensation system based on strict liability for death and injury to passengers in connection with shipping incidents (up to a certain limit) but with the maintenance of a fault based system above that limit and in the case of non-shipping incidents. Controversy continues to surround the question of how the burden of proof should be allocated in shipping incidents above the limit and in non-shipping incidents.
Limits of Liability
The discussion on this issue highlighted the difference of approach amongst the various delegations. The most extreme view was that in respect of claims for loss of life or personal injury there should be unlimited liability. This would, in effect, result in the deletion of article 7 of the Athens Convention. On the other hand a substantial number of delegations preferred a limitation provision which provided for per capita limitation without any overall limit per incident. Amongst this second group it remained for discussion whether State Parties should, in the alternative, be allowed to regulate by specific provisions of national law the limits of liability for loss of life and personal injury claims (if any) provided that the limit of liability under national law was no lower than that prescribed by the Convention. This option would give those State Parties looking for a higher limit the option to impose these but within the framework of the revised Convention.
It follows that in relation to limitation of liability there remain divergent views and much still to discuss.
It is now well established that one of the principal purposes of the Draft Protocol is to oblige the operators of passenger carrying ships to carry compulsory liability insurance giving the Claimant a direct right of action against the liability insurer or provider of security. Within the general scheme of things there remains some discussion as to the extent to which the shipowners potential liability should be covered by the compulsory insurance. Should the insurance requirement be based on per carriage per capita or by reference to the number of passengers which the vessel was certificated to carry or by reference the number of passengers it is actually carrying at the time of the incident in question.
The representative of the International Group of P&I Clubs alerted delegates to the fact that if insurance was to be by reference to the number of passengers which the vessel was actually carrying at the time of the incident and the vessel was found to be overloaded the liability insurer might well have a defence under the contract of insurance.
It is recognised that certificates of insurance printed on paper may eventually be replaced by certificates issued in electronic format. It was agreed by delegates that provisions should be made in the Protocol for this eventuality.
Limits of Liability for Loss or Damage to Luggage
No final decision was made as to whether the requirement of compulsory insurance should extend to lost or damaged luggage. In any event it was agreed that the limitation figures relating to claims for lost or damaged luggage should be left in blank for agreement at an eventual Diplomatic Conference.
Consideration was given as to whether the Protocol should provide for an additional court of competent jurisdiction to embrace countries to which the carrier provided regular or scheduled services. A representative of the International Group of P&I Clubs suggested that adding further potential jurisdictions would simply complicate the settlement of the claims to the disadvantage of claimants. No final decision was made in relation to this issue.
A number of issues remain outstanding with in the Final Clauses notably the form of the model certificate of insurance, certain treaty issues arising between States, issues of sovereign immunity and a provision to accommodate states where more than one system of law applies.
Possible Diplomatic Conference.
After considerable discussion it was agreed that the Committee would recommend to the Council of the IMO that allowance should be made for a two week Conference to adopt the Protocol during the 2002 / 2003 biennium. The Committee indicated that it would be prepared to forgo one of its regular week-long meetings in order to make two weeks available to finalise the Protocol.
Draft Convention on Wreck removal
This subject, which had been extensively worked upon intersessionally, was further studied. Discussion was based upon a scaled down version of the text which omits provisions on liability and compensation and on reporting requirements as were contained in the original draft. The purpose of this scaling down was to ensure rapid progress so as to enable a recommendation to be made for a diplomatic Conference in the 2002/2003 biennium.
Discussions within the Committee revealed several reservations about the revised text. Some delegations expressed concern that many of the most controversial matters would be left to be regulated by national legislation.
There remain a number of controversial issues arising even within the scaled down instrument. There is still a need for a definition of “wreck”, “preventative measures” and “hazard”. The financial liability for locating, marking and removing wrecks remains controversial as does the question of contributions from cargo. It was agreed that the question of insurance for wreck removal expenses could be dealt with under existing IMO instruments on the subject; notably the IMO Guidelines on insurance requirements. Following lengthy discussion the Committee decided that it could not make a recommendation to the Council for the convening of a Diplomatic Conference though it did agree to devote more time at future meetings to producing a draft treaty for possible consideration at a Diplomatic Conference during 2004/2005 biennium.
Finally on this subject the Committee requested the International Group of P&I Clubs to get together with their colleagues in the insurance industry as well as other sectors of the shipping industry to see whether the project might be further advanced.
Increase in the Compensation Limits under the 1992 Civil Liability and Fund Protocols.
As a result of the likely compensation shortfalls in the Erika and Nakhodka incidents and in face of the threat of the European Union to introduce a regional compensation and liability scheme the Committee was invited to consider whether the limits in the above two Protocols should be increased pursuant to the tacit acceptance procedure contained in the Protocols.
The sponsors of document LEG 82/10/5 proposed increases between 50.36% and 79.09% depending on the interpretation of the relevant provisions of the two Protocols concerning the effective dates. These increases would be calculated on a full 6% per annum as stipulated by the two Protocols.
The Director of the IOPC Funds introduced a document which recounted the history of claims which it had handled. The Director drew attention to the fact that whilst, with a few exceptions, sufficient funds had in the event been available to meet claims this was not readily apparent at the outset of a number of cases with the result that initial payments had to be scaled down.
Lengthy discussions took place regarding the appropriate percentage increase to be applied. In the event the Committee agreed to amend the limits in the two Protocols by applying a factor of 50.37% in respect of both instruments. The Committee expressed its belief that these increases would maintain a proper relationship between the limits in the Fund Convention and those laid down in the Civil Liability Convention.
In the event two resolutions were adopted which have the effect of increasing the limits under 1992 Protocols as follows:
a. Protocol of 1992 – The International Convention on Civil Liability for Oil Pollution Damage 1969.
Article 6 (1) of the 1992 CLC Protocol to be amended as follows:-
the reference to “three million units of account” shall read “£4,510,000 units of account”;
The reference to “420 units of account” shall read “631 units of account”;
the reference to “59.7 million units of account” shall read “89,770,000 units of account”.
b. Amendment of the limits of compensation in the Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971
Article 6 (3) of the 1992 Fund Protocol to be amended as follows:-
the reference in paragraph 4 (a) to “135 million units of account” shall read “203,000,000 units of account”;
the reference in paragraph 4 (b) to “135 million units of account” shall read “203,000,000 units of account”; and
the reference in paragraph 4 ( c) to “200 million units of account” shall read “300,740,000 units of account”.
In adopting these resolutions it is recognised that the new limits cannot take effect until November 2003.
As a footnote to this discussion the French delegation noted that even the new limits could prove to be insufficient in certain cases which may leave the way open for the European Commission to introduce a regional compensation and liability regime.
Monitoring Implementation of the HNS Convention
Delegations remain concerned at the delays in ratification of accession to the HNS Convention. The HNS Correspondence Group continues to act as a forum for the exchange of views and will help States interested in ratifying or acceding to the Convention.
A further meeting of the Correspondence Group will take place on Friday 16th March 2001 at the IMO Headquarters to determine the progress made on the implementation of the Convention.
Technical Co-operation Programme for Maritime Legislation
Under this general heading reference was made, inter alia, to the excellent work of IMLI (Malta) in providing training for lawyers in Government employ in the ratification and implementation of international conventions. In this context gratitude was expressed by delegates and by the Chairman of the Legal Committee for the financial support given to IMLI by the CMI Charitable Trust.
Long Term Work Programme.
The Committee looked at is long term work programme which contains three items as follows:-
a. Consideration of the legal status of novel types of craft, such as air cushion vehicles, operating in the marine environment;
b. A possible Convention on the regime of vessels in foreign ports;
c. Possible revision of maritime law conventions in the light of proven need.
There will be no meeting of the Legal Committee in the Spring of 2001. The meeting is displaced by the Diplomatic Conference on a Draft Convention for Compensation for Pollution from Ships Bunkers. As mentioned earlier in this report this Diplomatic Conference will take place at the IMO Headquarters in London and will run between March 19th and 23rd.