Key outcome of IMO’s Legal Committee 108: Abandonment of seafarers in the spotlight

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.

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 the consequences of the pandemic, which has complicated crew changes. 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.

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 involved 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 onboard 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.

As such, 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 MLC including the 2014 amendments.
• 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.

Guidelines for PSC 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 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).

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 analyzed 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.

Both the Maritime Safety and Legal Committees 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 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.

Finally, 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.