The Legal Committee (LEG) held its 110th session from 27 to 31 March 2023 and was chaired by Gillian Grant from Canada. IUMI was in attendance, and key issues of interest included:
Ship-to-ship oil transfers and tankers in the “dark fleet”
The practice of ship-to-ship transfers in the open ocean, as well as the methods used to obscure ship identities and turn off AIS transponders, were discussed by the Committee. A document was submitted to the session, which raised awareness of the consequences and concerns for the global liability and compensation regime of the increase in ship-to-ship (STS) transfers. A fleet of between 300 and 600 tankers, primarily comprised of older ships including some not inspected recently, having substandard maintenance, unclear ownership and a severe lack of insurance, was currently operated as a 'dark fleet' or 'shadow fleet' to circumvent sanctions and high insurance costs. This increased the risk of oil spills or collisions.
This could also result in a participating shipowner evading its liability under the relevant liability and compensation treaties (e.g., International Convention on Civil Liability for Oil Pollution Damage (CLC) and the International Convention on Civil Liability for Bunker Oil Pollution Damage (Bunkers Convention)) in the case of other ships, also placing an increased risk on coastal States and the International Funds for Compensation for Oil Pollution Damage.
The Committee considered that STS transfers on the high seas were high-risk activities that undermined the international regime concerning maritime safety, environmental protection and liability and compensation needed to be urgently addressed.
The Committee supported the recommended measures outlined in the original submission, including:
- Flag States are called upon to ensure that tankers under their jurisdiction adhere to measures which lawfully prohibit or regulate ship-to-ship transfers and that such vessels further adhere to the spirit of the safety requirements in IMO conventions and practice safe shipping standards to minimise the risk of oil pollution;
- Flag States should consider requiring that vessels update their ship-to-ship operations manuals to include notifying their flag State when they are engaged in a mid-ocean operation;
- Port States should ensure enforcement of the safety and liability conventions on these vessels and ensure that ship-to-ship transfer operations are conducted following the applicable safety requirements in IMO conventions; and
- Should the Port States become aware of any ships "going dark", they should consider subjecting such vessels to enhanced inspections as authorised and notifying the respective vessel's flag administration as appropriate.
Promoting liability and compensation treaties
The Legal Committee approved information pamphlets on the CLC, Bunkers and Nairobi Wreck Removal conventions, intended to provide information on the treaties and promote their implementation. IUMI was involved in the Correspondence Group, which developed the pamphlets.
Measures to assess the need to amend liability limits
The Committee continued its work to develop methodologies to help assess the need to amend liability limits in the various IMO liability and compensation treaties, approving a work plan and base document for future work. The last review of the liability limits was in 2012.
The Committee approved the work plan for finalising two methodologies with a view to completion in the 2024/2025 biennium. The work focuses initially on the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the 1996 Protocol (LLMC). A correspondence group was established in which IUMI participates.
Revised Guidelines on Places of Refuge
The Committee approved the draft Assembly resolution on Guidelines on Places of Refuge for Ships in need of aassistance, following the Maritime Safety Committee (MSC) approval. First adopted in 2003, they provide guidance for cases where a ship needs assistance, but they are not intended to address the issue of operations for the rescue of persons in distresss at sea (where search and rescue (SAR) provisions shall be followed).
The proposed revision recognises that various organisational, operational and technological developments have occurred in a rapidly changing global maritime domain.
The revised guidelines aim to provide the basis of an operational framework for coastal States, ships’ masters, operators and/or salvors, and other involved parties on how to handle and decide when a ship needs assistance and seeks a place of refuge.
Among other changes, a new section on media information and management is proposed, recommending that States include in their administrations the capacities (including training) for dealing with media and requests for information in connection with managing a ship in need of assistance seeking a place of refuge.
Maritime Autonomous Surface Ships (MASS)
The Committee noted the outcome of the first session of the joint Maritime Safety, Legal and Facilitation Committees (MSC-LEG-FAL) Working Group on MASS. The JWG has been established as a cross-cutting mechanism to address common high-priority issues identified by the regulatory scoping exercises for using MASS conducted by the three Committees. LEG 110 endorsed the work plan for the Working Group, including convening two sessions of the Working Group in 2023.
Convention on the International Effects of Judicial Sales of Ships
The Committee welcomed the adoption of the Convention on the International Effects of Judicial Sales of Ships, on 7 December 2022, by the United Nations General Assembly.
The Convention has 23 Articles. Its central provision is in Article 6: "A Judicial sale for which a certificate of judicial sale referred to in Article 5 has been issued shall have the effect in every other State Party of conferring clean title to the ship on the purchaser."
Various criteria must be satisfied for the Convention to apply and for a judicial sale to have international effects, notably compliance with the notification criteria contained in Article 4 and the issuance of a certificate of judicial sale by the court where the judicial sale takes place per Article 5. Per Article 11, the Organization will serve as the repository for notices of judicial sales using the GISIS system. The signing ceremony will take place in Beijing in September 2023. Brian Murphy, Vice Chair of IUMI’s Legal & Liability Committee, has been involved in the UN’s work on the Convention from the outset.
