Legal Committee, 107th session (LEG 107), 27 and 30 November and 1 December (virtual session)

Seafarer matters during the COVID-19 pandemic

The Legal Committee discussed the ongoing seafarer issues related to the COVID-19 pandemic, including the urgent need for crew changes.

The Committee was updated on efforts by the Secretariat. The IMO Seafarer Crisis Action Team (SCAT), established by the IMO Secretary-General in April, has been involved in approximately 300 cases and is dealing directly with several thousands of seafarers. Most cases concern individuals or small groups of three to 15 seafarers, while some cases involve cruise ships with 250 to 500 seafarers.

The Secretary-General and SCAT members have held more than 20 bilateral meetings to address country-specific matters regarding the crew change crisis, including learning of best practices in countries where crew changes occur. IMO is conducting a series of regional webinars to identify solutions and disseminate best practices, while SCAT members have participated in more than 100 webinars to communicate the issues and the work of the Organization regarding the crew change crisis. The Committee expressed appreciation for the ongoing work.

The Committee invited interested delegations to submit proposals regarding the use of "no crew change clauses" in charterparties to LEG 108 for consideration, after several delegations made statements condemning their use, as exacerbating the global crew change crisis.  .

On 1 December, the United Nations General Assembly adopted a resolution on International cooperation to address challenges faced by seafarers as a result of the COVID-19 pandemic to support global supply chains. (Read more here: https://www.imo.org/en/MediaCentre/PressBriefings/Pages/44-seafarers-UNGA-resolution.aspx )

Fair treatment of seafarers detained on suspicion of committing maritime crimes – new output agreed

The Committee agreed to include a new output in its work programme on the fair treatment of seafarers detained on suspicion of committing maritime crimes. The move recognizes the global nature of shipping, crossing many jurisdictions, and seafarers' rights to due process under the law .

The decision to add the output on the agenda followed a proposal by several Member States and NGOs. The Committee, following an in-depth discussion, agreed that fair treatment of seafarers detained on suspicion of committing maritime crimes was an issue that needed to be addressed by the Legal Committee.

The Committee commented that criminalisation and unfair treatment of seafarers detained on suspicion of committing crimes was an issue of human rights.  Detained seafarers should get legal representation, access to medical care, consular assistance and be treated fairly. Furthermore, seafarers should be considered innocent until proven guilty and should enjoy their human rights irrespective of their nationality and the flag of the vessel. All efforts should be made to improve the welfare of seafarers. In addition, considering the fair treatment of seafarers, the existing international legal framework should be taken into account, and reference to fair treatment should be understood as equitable treatment, as referenced in all human rights instruments.

The Committee noted discussions between the IMO and ILO secretariats on the potential activation of a joint working group on the fair treatment of seafarers detained on suspicion of committing maritime crimes. The Committee agreed to request, as a matter of urgency, the ILO Special Tripartite Committee (STC) under the MLC, 2006 to authorize the establishment of an ILO-IMO tripartite working group to identify and address seafarers' issues and the human element, which will need to be endorsed by the ILO Governing Body during its meeting in November 2021, and invited MSC to make a similar request to the Council.

In 2006, IMO adopted Guidelines on fair treatment of seafarers in the event of a maritime accident. (Download here:  )

Dealing with abandonment – new work output

The Committee agreed to include a new output under its work programme on the development of guidelines for port State and flag State authorities on how to deal with seafarer abandonment cases, with a target completion year of 2022. The Committee invited concrete proposals to LEG 108 on the scope of the work on the new output. Such guidelines could provide a solid basis for the introduction of a unified procedure to follow in order to speed up the process of repatriation of seafarers.

The Committee has been working on the issue of abandonment of seafarers for a number of years, in collaboration with ILO and in cooperation with ITF. (Read more here: https://www.imo.org/en/OurWork/Legal/Pages/Seafarer-abandonment.aspx )

ILO and IMO have established a joint database (view here: https://www.ilo.org/dyn/seafarers/seafarersbrowse.home ) on reported incidents of abandonment of seafarers (it includes all cases reported after 1 January 2004). During 2020 the number of reported cases to date is 65, a significant increase over the 40 reported during 2019. Of the cases reported in 2020, 18 have been resolved so far, while 17 of the cases reported since 13 December 2019 were related to consequences of the COVID‑19 pandemic.

The ILO informed the Committee that awareness of the issue had increased due to increased reporting of abandonment of seafarer cases. In many cases the port State was preventing the repatriation of seafarers in contradiction to its Maritime Labour Convention (MLC) responsibility to facilitate the repatriation of seafarers.

The Committee encouraged Member States to report incidents of abandonment to the database when they occur in their ports or on vessels flying their flag and urged them to take all necessary action to reduce the number of abandonment cases, in particular those exacerbated by the COVID-19 pandemic.

Unlawful practices associated with the fraudulent registration and fraudulent registries of ships – further work and draft resolution to be developed

The Committee discussed the serious matter of unlawful practices associated with the fraudulent registration and fraudulent registries of ships. Fraudulent registration and related unlawful practices include the registration of vessels without the knowledge or approval of the relevant national maritime administration.

This prevents lawful registries from exercising effective jurisdiction and control over vessels at sea, deprives lawful registries from obtaining legitimate revenue while unjustly enriching fraudulent actors and exacts unjustified reputational harms on States when vessels engage in illicit activities under the cloak of a fraudulent registration. Furthermore, fraudulently registered ships may not be in compliance with safety and environmental protection standards, endangering the vessels' crew and posing an increased threat of damage to the marine environment.

The Committee reiterated the importance of combating fraudulent registration and fraudulent registries of ships and supported the continuation of the work intersessionally for the submission of a report to LEG 108.

The Committee agreed to develop a draft resolution to encourage Member States and all relevant stakeholders to promote concrete actions for the prevention and suppression of fraudulent acts in the maritime sector. The remote intersessional group established will work on the draft.

The Committee was informed that the Kingdom of Cambodia had notified the Organization of the fraudulent use of its flag on vessel Song Wong. In addition, there had been fraudulent issuance of Samoan registration certificates by a company operating an illegal Samoa Ship Registry under the domain name http://samoaregister.com/; the operation of an illegal ship registry for Zambia under the domain name http://zambiaships.com/; and attempts to fraudulently register ships under the flag of Gabon.

The Committee noted that, as of 17 November 2020, there were 50 ships shown under False/Fraudulent flags in the IMO GISIS module, which had been verified as fraudulently registered after consultation with the respective flag States. (Read more on IMO's work to address this matter here: https://www.imo.org/en/OurWork/Legal/Pages/Registration-of-ships-and-fraudulent-registration-matters.aspx )

Unified Interpretation on the test for breaking the owner's right to limit liability under the IMO conventions

The Committee decided to establish a remote intersessional group to develop a unified interpretation on the test for breaking the owner's right to limit liability under IMO liability conventions, to reflect consistent themes and principles highlighting the virtually unbreakable nature of the test.. The remote intersessional group will report its results to LEG 108.

Best dissertation prize awarded to Ms. Kamyla Alejandra Barrientos Pineda

The Committee congratulated Ms. Kamyla Alejandra Barrientos Pineda from Guatemala, a graduate of the IMO International Maritime Law Institute (IMLI) who was attending the remote session, for her dissertation entitled "A Legal Analysis of Measures Adopted to Prevent Unlawful Practices Associated with the Fraudulent Registration of Ships". The dissertation was awarded the IMO Secretary-General's Prize for Best Dissertation for the academic year 2018-2019.