Legal Committee, 109th session, (LEG 109) 21-25 March 2022

Black Sea and the Sea of Azov - Guidance on insurance or other financial security certificates

 IMO’s Legal Committee (21-25 March) approved a circular on Guidance on the impact of the situation in the Black Sea and the Sea of Azov on insurance or other financial security certificates. (LEG.1/Circ.12).  This followed the decision of the IMO Council at its Extraordinary Session (C.ES/35) earlier in March to request IMO Committees to consider ways to enhance the efforts of Member States and observer organizations in supporting affected seafarers and commercial vessels and consider the implications of this situation for the implementation of the Organization's instruments, take appropriate action and report back to Council.

The circular notes that a number of relevant IMO liability and compensation treaties require that State Parties issue certificates attesting that insurance or other financial security which meets the requirements of the conventions is in force. The introduction of economic sanctions may in some cases restrict the insurers or other financial security providers from processing claims or prohibit the payment of claims arising under these conventions.  

The circular recommends, in particular, that flag or certifying States issuing certificates based on Russian insurers or Russian financial security providers should verify that the coverage meets the criteria outlined in Circular Letter No.3464 - which provides guidance for accepting “Blue Cards” or similar documentation from insurance companies for specified treaties.  

Port States encountering certificates involving Russian insurers or financial security providers should consult with the issuing or certifying State whose responsibility it is to ensure that the insurance or financial security remains adequate, as called for in the relevant IMO liability and compensation treaties. 

The circular also recommends that if a State Party to the following Conventions has issued certificates pursuant to Article VII of the 1969 Civil Liability Convention, Article 7 of the 1992 CLC Protocol, Article 7 of the 2001 Bunkers Convention, Article 12 of the 2007 Nairobi WRC and Article 4bis of the 2002 Athens Protocol, the issuing State or its designated authority should ensure that it cancels the certificate in accordance with the conventions if or when they receive notification of termination of the insurance or other financial security. 

New agenda sub-item  

The Committee agreed to include a new sub-item on the impact on shipping and seafarers of the situation in the Black Sea and Sea of Azov in the agenda of the Legal Committee under the existing agenda item  on Advice and guidance in connection with the implementation of IMO instruments. 

Seafarer abandonment 

The Committee noted information from the IMO/ILO joint database of abandonment of seafarers, revealing that 30 cases of abandonment had already been reported in the first three months of 2022. In calendar year 2021, a record 95 new cases had been reported. Of these cases, only 31 had been resolved. In calendar year 2020, the total number of reported cases was 85. Of these, 43 cases had so far been resolved. Of the cases reported since 2020, 21 were related to consequences of the COVID-19 pandemic, further exacerbating the crew change situation of seafarers.

The Committee expressed profound concern regarding the increase in abandonment cases as a result of the COVID-19 pandemic, while thanking the IMO Secretariat, the IMO Seafarer Crisis Action Team, ILO and ITF for their efforts in helping to resolve abandonment cases.

The Committee encouraged discussion relating to a solution to the problem of repatriation of abandoned seafarers and reminded Member States to ratify and effectively implement the relevant international instruments and amendments thereto; and to report incidents of abandonment to the database when they occurred in their ports or on vessels flying their flag.  

Flag States and port States were urged to take further action to ensure the presence of financial security, as required by the ILO Maritime Labour Convention (MLC, 2006), Standard A2.5.2, and to take appropriate action when financial security is not in place.

The Committee noted the outcome of the Sub-Committee on Implementation of IMO Instruments (III 7) in July 2021 concerning matters related to the financial security of seafarers in cases of abandonment, including that individual port State control (PSC) inspection reports should include information regarding the validity period and contact information of financial security providers of the insurance certificates required by the 2014 amendments to the MLC, 2006.  The Sub-Committee had also agreed to invite PSC regimes to consider a concentrated inspection campaign (CIC) on financial security related to the 2014 amendments to the Maritime Labour Convention (MLC), 2006.

Furthermore, the Committee endorsed, with respect to the handling of issues related to the abandonment and fair treatment of seafarers, the III Sub-Committeeʹs recommendation on alignment and integration of actions in favour of both seafarers and fishers, recognizing that both seafarers and fishers are often confronted with the same kinds of problems, which had  become even more serious in the context of the COVID-19 pandemic.

Guidelines for port State and flag State authorities on how to deal with seafarer abandonment cases

Draft guidelines for port State and flag State authorities on how to deal with seafarer abandonment cases, developed by an intersessional correspondence group, were endorsed by the Committee. 

The text will be forwarded, as a base document for consideration and further refinement, to the joint ILO-IMO Tripartite Working Group which has been established to identify and address seafarers' issues and the human element. (The joint group is expected to meet later in 2022).

Fair treatment of seafarers

The Committee invited concrete proposals to the next session on the agenda item "Fair treatment of seafarers detained on suspicion of committing maritime crimes".

Preventing unlawful practices associated with fraudulent registration and fraudulent registers of ships   

The Committee continued its work on measures to prevent unlawful practices associated with fraudulent registration and fraudulent registers of ships, noting the adoption by the IMO Assembly of a related resolution (A 32/Res.1162 ). Such illicit practices undermine the foundation of the overall IMO regulatory regime.  

The Committee noted communications received from a number of Governments on the operations of fraudulent registries, and on several instances of the use of fake identities by ships. The Committee noted concerns already raised by some delegations that AIS data were deliberately manipulated and that ships were able to operate transmitting fake data. The Committee agreed to inform the Maritime Safety Committee of this issue, as that Committee may wish to investigate how ships without proper registration were able to obtain MMSI numbers.

Following consideration of the report of the Correspondence Group, the Committee agreed the terms of reference for a study to address issues arising in connection with fraudulent registration and fraudulent registries of ships and possible measures to prevent them.

The study group will include the United Nations Conference on Trade and Development (UNCTAD), the World Maritime University (WMU), the IMO International Maritime Law Institute (IMLI) and other interested parties.

Meanwhile, the Committee agreed on a definition of "forged/false documents" based on text developed by the Correspondence Group. "Forged/false documents" means any document, whether in electronic or paper format, that is: .1 forged or falsified to obtain or issue a ship registration certificate; .2 a forged or falsified ship registration certificate; or .3 issued based knowingly on the forged or falsified ship registration certificate."

A presentation by IHS Markit/S&P Global (designated entity for IMO numbers and tonnage figures) on their work related to the fraudulent registration and fraudulent registries of ships took place on Thursday, 24 March, in the margins of the Legal Committee. the presentation can be viewed here. 

Maritime Autonomous Surface Ships (MASS)

Following the completion of the Committee's regulatory scoping exercise on Maritime Autonomous Surface Ships (MASS) (download here), the Committee agreed to include a new output under the work programme on "Measures to address Maritime Autonomous Surface Ships (MASS) in instruments under the purview of LEG" on the 2022‑2023 biennial agenda, and subsequently the 2024-2025 biennial agenda, with a target completion year of 2025.

The Committee invited concrete proposals to LEG 110 (to be held in 2023) on the scope of the work on the new output and a draft road map, in order to have a common understanding of the steps to be taken by the Committee.

The Committee noted that the human element should be an important aspect to consider in the completion of this output, and that MASS should operate within the legal framework of the United Nations Convention on the Law of the Sea (UNCLOS).

The Committee approved the establishment of a joint Maritime Safety, Legal and Facilitation Committees (MSC-LEG-FAL) Working Group on MASS, as a cross-cutting mechanism to address common high-priority issues identified by the regulatory scoping exercises for the use of MASS conducted by the three Committees. The Joint Working Group would be instructed to address the common issues identified by the three Committees; and provide advice to the Committees after every meeting. (The establishment of the Joint Group is subject to approval by FAL and MSC.)

Push for entry into force of 2010 HNS Convention

The Committee welcomed the recent accession of Estonia to the 2010 HNS Convention, the key IMO compensation treaty covering the maritime transport of hazardous and noxious substances (HNS) by ship. The Committee noted that the 2010 HNS Protocol needed only six more ratifications with the required contributing cargo, thus the Convention was significantly closer to its entry into force. 

The delegations of Belgium and the Netherlands provided information on the progress of adopting national legislation, which would allow them to ratify the 2010 HNS Protocol simultaneously with Germany. The delegation of France confirmed that its objective to ratify the 2010 HNS Protocol in 2023 should be achieved. Furthermore, the Committee was informed that the Philippines was in the final stages of ratifying the 2010 HNS Protocol.

When in force, the treaty will provide a regime of liability and compensation for damage caused by HNS cargoes transported by sea, including oil and chemicals, and covers not only pollution damage, but also the risks of fire and explosion, including loss of life or personal injury as well as loss of or damage to property. An HNS Fund will be established, to pay compensation once a shipowner's liability is exhausted. This Fund will be financed through contributions paid post incident by receivers of HNS cargoes.

To assist Member States in their work towards further ratifications, Canada, in cooperation with the IMO and IOPC Funds Secretariats, will host a workshop on the HNS treaty in late 2022.

Development of a Claims Manual for the 2001 Bunkers Convention

The Committee reviewed progress made by an informal group to develop a Claims Manual for the 2001 Bunkers Convention and established a remote intersessional group to finalize the text and consider how it should be adopted. 

The Committee encouraged wide participation in the intersessional work, especially of representatives from small island developing States and least developed countries to ensure that the outcome represented the broad membership of the Organization. This is particularly important to the victims of the bunker oil pollution damage who need guidance on the process for obtaining prompt compensation. The 2001 Bunker Convention was adopted to ensure that adequate, prompt, and effective compensation is available to persons who suffer damage caused by spills of oil, when carried as fuel in ships' bunkers.

Measures to assess the need to amend liability limits

The Committee discussed proposals to develop methodologies for assessing the need to amend liability limits in a number of liability and compensation treaties and established an intersessional correspondence group to develop a list of principles and policy considerations that will need to be decided by the Committee and begin developing elements that would need to be included in a draft methodology. The work will focus initially on the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the 1996 Protocol (LLMC).

Guidance for implementation and application of IMO liability and compensation conventions

The Committee approved a new output on the agenda related to the development of guidance for the proper implementation and application of IMO liability and compensation conventions.

Secretary-General's Prize for Best Dissertation

The Committee congratulated Mr. Si Thu Aung (Myanmar), a Masters student of the IMO International Maritime Law Institute, for his dissertation entitled "Overlapping Rights and Jurisdiction in the Grey Area: The Bay of Bengal Experience". The dissertation was awarded the IMO Secretary-General's Prize for Best Dissertation for the academic year 2020-2021.