Legal Committee, 108th session (LEG 108), 26-30 July 2021
Concern over increase in abandonment of seafarers
The Committee noted the alarming increase in the numbers of reports of abandoned seafarers, reported to the IMO/ILO joint database on abandonment of seafarers. (https://www.ilo.org/dyn/seafarers/seafarersbrowse.home)
From 1 January 2020 to 1 April 2021, 111 new cases had been reported, with 85 cases in 2020 and 26 cases in the first quarter of 2021. As of 26 July, of this spike of 111 new cases, only 43 have been resolved.
Around 18 cases reported since 1 January 2020 were related to consequences of the COVID-19 pandemic, which has complicated the crew change situation of seafarers. In the three months leading up to LEG 108, a further 27 cases were reported, bringing the total number of new cases this year to 53.
Each case has impacted real people, who experience stressful, inhumane and unsafe consequences; and their families are equally affected. Such cases necessitate the substantial involvement of the IMO and ILO Secretariats, together with the International Transport Workers' Federation (ITF), International Chamber of Shipping (ICS) and others, in order to gain resolution.
An analysis by ITF showed that in the period 1 January to 31 December 2020, ITF reported the abandonment of 851 seafarers on 53 vessels. The total 85 cases of abandonment reported in 2020 involving more than 1,300 seafarers.
Noting two specific cases, the Committee was informed that, as a result of combined efforts, the crew of the Ula, who were trapped for almost two years on board their ship under very difficult circumstances, were finally repatriated in June 2021 without their wages being paid. However, the Kuwaiti authorities had given an undertaking for their claims for outstanding wages on the ship, which was under arrest now.
The Committee was also informed that the master of the Kenan Mete had been repatriated in late June 2021 but that the outstanding wages for himself and other crew members had so far not been paid. Both these cases could be considered as being disputed.
The Committee encouraged Member States to report incidents of abandonment to the database when they occurred in their ports or on vessels flying their flag; and to further ratify and effectively implement the Maritime Labour Convention (MLC, 2006), including the 2014 amendments.
The Committee also reminded Member States of relevant resolutions on provision of financial security in cases of abandonment (A.930(22)) and international cooperation to address seafarer challenges (A/75/17); the recommended crew change protocols (MSC.1/Circ.1636/Rev.1) and the maritime human rights due diligence toolkit.
Member States were encouraged to assist with the ongoing crew change crisis. The Committee noted that the issue of abandonment , which was of great concern, needed to be dealt with because of the rising numbers of abandonment cases.
Guidelines for port State and flag State authorities on how to deal with seafarer abandonment cases
The Committee established a correspondence group to further develop draft practical guidelines, based on submissions made to the Committee, including a proposed outline to cover legal framework, principles and responsibilities and procedures for port and flag State authorities.
ILO-IMO tripartite Working Group to identify and address seafarers' issues and the human element
The Committee noted the endorsement by the IMO Council for the establishment of the ILO-IMO tripartite Working Group to identify and address seafarers' issues and the human element. The ILO advised that the recommendation to establish the group would need to be adopted by the the members of the Special Tripartite Committee (STC) of MLC, 2006 by correspondence, and preferably be submitted to the 343rd Session of the ILO Governing Body, which will take place from October to November 2021, for consideration and decision, (or alternatively to the 344th Session in March 2022).
Following establishment by ILO, the working group would be expected to meet during 2022.
Seafarers Emergency Mutual Fund discussed
The Committee discussed a proposal to establish a fund to support seafarers impacted by abandonment and invited interested Member States to submit proposals for a new output regarding the establishment of a Seafarers Emergency Mutual Fund to LEG 109 for consideration.
Addressing fraudulent ship registration – draft Assembly resolution agreed
The Committee discussed the matter of fraudulent registration and fraudulent registries of ships and agreed a draft Assembly resolution on "Encouragement of Member States and all relevant stakeholders to promote actions for the prevention and suppression of fraudulent registration and fraudulent registries and other fraudulent acts in the maritime sector" for submission to the IMO Assembly in December 2021.
The draft resolution:
urges all Governments and organizations concerned to cooperate fully in taking effective measures and exchanging information for the further prevention of maritime fraud, bearing in mind that measures relating to documentation must not prejudice the facilitation of legitimate international maritime traffic and trade;
encourages Governments to review provisions in their national law relating to the prevention and suppression of all forms of maritime fraud and to make additions or improvements, having particular regard to: (a) administration of national registries of ships, including requirements for provisional registration, transfer of ownership, nationality, or change of name of ships;(b) documentary requirements, bearing in mind that measures relating to documentation must not prejudice the facilitation of legitimate international traffic and trade; and(c) appropriate legal penalties for fraudulent acts and practices in the maritime sector;
encourages Governments to examine their national law enforcement procedures and resources, including the availability of appropriately trained personnel, and to take such action as may be necessary for the effective prevention, investigation and detection of all forms of maritime fraud and the prosecution of all those involved;
invites Governments and relevant international organizations to inform the IMO Secretary-General of legal, administrative and other actions taken or contemplated to implement the aims of the resolution;
urges Governments to take all possible measures of cooperation with each other and with relevant intergovernmental organizations and maritime stakeholders in order to maintain and develop coordinated actions in all relevant areas to combat maritime fraud, including the exchange of information and reporting the names of ships and registries involved in fraudulent acts;
urges Governments, the IMO Secretary-General, port State control authorities, vessel owners and operators, non-governmental organizations, the private sector including the maritime insurance industry, ship brokers and other relevant maritime stakeholders to develop workshops that will focus on enhancing capabilities and due diligence practices for the prevention, detection and reporting of fraudulent registration documentation.
Remote intersessional group established
The Committee established a remote intersessional group, to work intersessionally by correspondence, with the option of meeting virtually if the members of the Group wish to do so, to:
further consider and develop the definition of "false documents";
further consider the categories of fraudulent registration and identify action required to address this;
consider the name, aim, objectives, structure and scope of a proposed study to be able to answer questions such as the extent and nature of the practices and types of fraudulent registration and fraudulent registries of ships; where they occur; and so on. Draft terms of reference for such a study to be developed;
consider proposals regarding provision of information in the IMO GISIS module and the development of training for port State control officers (PSCOs) to identify fraudulently registered vessels and identify required action to address them;
consider the issues raised and a proposal in document LEG 108/6/5 regarding confiscation of fraudulently registered vessels and identify action required to address this proposal;
identify items, as necessary, for further consideration by the Legal Committee at its next session and develop a comprehensive work plan; and
submit a report to LEG 109.
GISIS module - ship status
Following a recommendation from the Legal Committee at its last session, the IMO GISIS module on ship particulars (https://gisis.imo.org/Public/SHIPS/Default.aspx) now includes an option to check ship status by: False Flag; Ship under UN sanction; Owning/operating entity under UN Sanction.
Unified Interpretation on test for breaking the owner's right to limit liability under IMO conventions
The Committee approved the text of three draft resolutions on the Unified Interpretation on the test for breaking the owner's right to limit liability under IMO conventions:
draft resolution on Interpretation of article 4 of the Convention on Limitation of Liability for Maritime Claims, 1976, for submission to C/ES.34 and adoption by the States Parties to the Convention on Limitation of Liability for Maritime Claims, 1976, present at A 32;
draft resolution on Interpretation of article 4 of the Convention on Limitation of Liability for Maritime Claims, 1976, for submission to C/ES.34 and adoption by the States Parties to the Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims, 1976, present at A 32;
draft resolution on Interpretation of article 6 of the Protocol of 1992 to Amend the International Convention on Civil Liability for Oil Pollution Damage, 1969, amending article V(2) of the International Convention on Civil Liability for Oil Pollution Damage, 1969, for submission to C/ES.34 and adoption by the States Parties to the Protocol of 1992 to Amend the International Convention on Civil Liability for Oil Pollution Damage, 1969, present at A 32.
Autonomous ships - regulatory scoping exercise completed
The Committee completed its work on the regulatory scoping exercise (RSE) of conventions emanating from the Legal Committee for the use of Maritime Autonomous Surface Ships (MASS). The aim was to assess the degree to which the existing regulatory framework may be affected in order to address MASS operations, following a similar process for conventions under the purview of the Maritime Safety Committee (MSC) (see MSC MASS RSE outcome here.).
For each instrument, and for each degree of autonomy, provisions were identified which:
apply to MASS and prevent MASS operations; or
apply to MASS and do not prevent MASS operations and require no actions; or
apply to MASS and do not prevent MASS operations but may need to be amended or clarified, and/or may contain gaps; or
have no application to MASS operations.
The process then analysed and considered the most appropriate way of addressing MASS operations, taking into account the human element, by:
developing interpretations; and/or
amending existing instruments; and/or
developing new instruments; or
none of the above as a result of the analysis.
The work was completed by volunteer Member States, along with interested NGOs and IGOS and the RSE was finalized by a working group which met during the session.
In general, the RSE concluded that MASS could be accommodated within the existing regulatory framework of LEG conventions without the need for major adjustments or a new instrument. While some conventions can accommodate MASS as drafted, others may require additional interpretations or amendments to address potential gaps and themes that were revealed through the RSE.
The most important of these were:
the role and responsibility of the master;
the role and responsibility of the remote operator;
questions of liability;
consistent definitions/terminology of MASS; and
carriage of certificates.
It was noted that both the Maritime Safety and Legal Committees had concluded that the role and responsibilities of the master and the remote operator are high‑priority issues that must be addressed as a foundation for any further work. Some specific legal terms required consideration in the context of harm caused by autonomous technology, like the concepts of "fault", "negligence" and "intention". The LEG RSE concluded that consideration of these issues would best be addressed jointly between the committees, so that both technical and legal aspects and questions of liability are taken into account, while keeping in mind the different purposes and functions of conventions under the purview of LEG and those under MSC.
The working group also noted that while the United Nations Convention on the Law of the Sea (UNCLOS), was not considered as part of the LEG RSE, as it is not an IMO Convention, MASS would need to operate within the legal framework of UNCLOS and, thus, UNCLOS will need to be considered in IMO's future work on MASS, particularly if IMO developed an instrument regulating MASS operations.
The Committee:
approved the outcome of the RSE and gap analysis of conventions emanating from the Legal Committee with respect to MASS;
noted that, in general, MASS can be accommodated within the existing regulatory framework of LEG conventions without the need for major adjustments;
noted that coordination among the committees will be necessary moving forward, in particular regarding terminology and definitions;
invited Member States to submit proposals for a new output on MASS for those issues identified to be specific to the Legal Committee;
noted that conventions not under the auspices of IMO, such as UNCLOS and MLC, 2006, may need to be considered in IMO's future work on MASS, particularly if IMO developed an instrument regulating MASS operations; and
endorsed the recommendation that the outcome of the LEG RSE should be circulated through a LEG Circular. (Download RSE outcome here: (coming soon)
The treaties reviewed included:
Conventions under the purview of the Legal Committee:
BUNKERS 2001 – International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001.
CLC 1969 – International Convention on Civil Liability for Oil Pollution Damage, 1969.
CLC PROT 1976 – Protocol of 1976 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969.
CLC PROT 1992 – Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969.
FUND PROT 1992 – Protocol of 1992 to amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971.
FUND PROT 2003 – Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992.
NUCLEAR 1971 – Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, 1971.
PAL 1974 – Athens Convention relating to the Carriage of Passengers and Their Luggage by Sea, 1974.
PAL PROT 1976 – Protocol of 1976 to the Athens Convention relating to the Carriage of Passengers and Their Luggage by Sea, 1974.
PAL PROT 2002 – Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and Their Luggage by Sea, 1974.
LLMC 1976 – Convention on Limitation of Liability for Maritime Claims, 1976.
LLMC PROT 1996 – Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976.
SUA 1988 – Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988.
SUA PROT 1988 – Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 1988.
SUA 2005 – Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation.
SUA PROT 2005 – Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf.
SALVAGE 1989 – International Convention on Salvage, 1989.
NAIROBI WRC 2007 – Nairobi International Convention on the Removal of Wrecks, 2007.
HNS PROT 2010 – Protocol of 2010 to the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996.
Conventions emanating from the Legal Committee, with shared cognizance with other IMO committees
INTERVENTION 1969 – International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969.
INTERVENTION PROT 1973 – Protocol relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, 1973.
Joint treaties with IMO and other UN bodies, emanating from the Legal Committee
International Convention on Maritime Liens and Mortgages, 1993 (joint with UNCTAD).
International Convention on Arrest of Ships, 1999 (joint with UNCTAD).
Two new outputs
The Committee agreed to add two new outputs to its agenda.
Measures to assess the need to amend liability limits
The Committee, following an in-depth discussion, agreed to address the development of measures to transparently assess whether there is a need to amend liability limits. The Committee noted, with appreciation, that Australia would conduct informal intersessional work, taking into account some concerns that were raised on the new output. The Committee also noted that no amendment to the liability limits was requested in the proposal.
Claims Manual for the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001
The Committee expressed its broad support for the development of dedicated and authoritative guidance which would provide potential claimants with important information on the processes to follow before they submit claims considered as falling within the scope of the Convention. The Committee noted that delegations interested in taking this work forward on an intersessional basis could contact P & I Clubs.
2010 HNS Protocol
The Committee welcomed the information provided by the delegations of Belgium and Germany (made by the Chair), regarding coordinated efforts with neighbouring states, including the Netherlands, towards the ratification and implementation of the 2010 HNS Protocol. The Chair informed the Committee that Germany intended to ratify the Protocol in the summer of 2022.
IMO Secretary-General's Prize for Best Dissertation
The Committee congratulated Mr. Jose Manuel Pacheco Castillo from Peru, for his dissertation submitted while studying at the IMO International Maritime Law Institute. The dissertation was awarded the IMO Secretary-General's Prize for Best Dissertation for the academic year 2019-2020.
The dissertation is entitled "A Legal Assessment of the Genuine Link and its Contribution to the Combat of IUU Fishing on the High Seas". (Available on IMODOCS LEG 108/INF.3)
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