E

LEGAL COMMITTEE LEG 108/5/1

108th session 19 May 2021
Agenda item 5 Original: ENGLISH
Pre-session public release: ☒

ADVICE AND GUIDANCE IN CONNECTION WITH THE IMPLEMENTATION

OF IMO INSTRUMENTS

Harmonized interpretation of the International Convention on Civil Liability for Bunker

Oil Pollution Damage, 2001 (2001 Bunkers Convention)

Submitted by the Islamic Republic of Iran

SUMMARY

Executive summary: This document draws the attention of the Committee to the need for
harmonized interpretation of the 2001 Bunkers Convention

Strategic direction, 1 and 6

if applicable:
Output: OW 20

Action to be taken: Paragraph 9

Related document: LEG 107/6/4

Introduction

1 In this document the concept of "State of the ship's registry" is discussed in relation
to an unregistered ship when calling at the ports of States Parties to the 2001 Bunkers
Convention and the need for clarification and harmonized interpretation is discussed.

Analysis

2 According to article 1(10) of the 2001 Bunkers Convention, "State of the ship's
registry" in relation to an unregistered ship means "the State whose flag the ship is entitled to
fly". The question is: what does "unregistered ship" mean and what is considered an
"unregistered ship" in the context of the 2001 Bunkers Convention?

3 The term "unregistered ship" used in article 1(10) is not used in any article of the 2001
Bunkers Convention. Instead, the term "a ship not registered in a State Party" is repeated in
paragraphs 2, 5 and 9 of article 7. Having said that, it is not clear whether "unregistered ship" in
article 1(10) means "a ship not registered in a State Party" or if it refers to other ships, including
non-Party ships. If we consider that an unregistered ship refers only to a ship not registered in a
State party, it could imply that the unregistered ship is not necessarily a ship which is not
registered in any other States. In this case according to article 7(2) of the 2001 Bunkers
Convention, the owner of above-mentioned ship (which may be registered in a State not Party)
could request the States Parties to the Convention to issue a certificate for such a ship.
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4 Should that be the case, it seems that the general definition of an "unregistered ship"
as drafted in article 1(10) is ambiguous and the criterion presented in this article to recognize
an unregistered ship, i.e. "… the State whose flag the ship is entitled to fly", in practice is not
useful and applicable because the port States are not expected to apply and control this
criterion in their ports in relation to unregistered ships in question.

5 In the opinion of this delegation, the above ambiguity could raise questions as to the
scope of rights and obligations of States Parties and needs clarification and harmonized
interpretation. The most important aspect of the 2001 Bunkers Convention is the obligation of
the registered owner of a ship having gross tonnage greater than 1,000 to provide and maintain
financial security to cover his/her liability for pollution damage to be controlled by related States
Parties (as flag or port State). Issuance of a certificate attesting that the above-mentioned
financial security is in force by the States Parties is another important aspect of
the 2001 Bunkers Convention. Any ambiguity with regard to the ships which are covered by
the 2001 Bunkers Convention would undermine the proper implementation of the Convention,
in particular as to article 7(2) which is related to the issuance and control of financial security
and certificate.

6 Tracing the background of this issue shows that the definition of "State of unregistered
ship" in article 1(10) of the 2001 Bunkers Convention is copied from article 1(4) of the
International Convention on Civil Liability for Oil Pollution Damage, 1969, although in the latter,
instead of "…is entitled to…" the phrase "… is flying…" is used which seems more logical.

7 It is worth mentioning that the term "unregistered ship" in the 2001 Bunkers
Convention is also used in article 1(13) of the International Convention on Liability and
Compensation for Damage in Connection with the Carriage of Hazardous and Noxious
Substances by Sea, 2010 (2010 HNS Convention), although the term "an unregistered ship"
is identically repeated in some other articles of that Convention, including articles 3(c)
and 38(2)(a). To explain further, in the 2010 HNS Convention "unregistered ship" apparently
does not mean a ship registered in a State not Party, but it considers a ship which is not
registered in a State Party. However, that ship is entitled to fly the flag of such a State.
Therefore, an unregistered ship in the 2010 HNS Convention means a ship which is entitled to
fly the flag of a State Party although it is not registered in that State Party.

8 The way the above-mentioned articles of the 2010 HNS Convention are drafted
confirms the sponsor's consideration that the term "unregistered ship" in the 2001 Bunkers
Convention is ambiguous and needs clarification and interpretation.

Action requested of the Committee

9 The Legal Committee is invited to further discuss the matter raised in this document,
comment on the necessity of a harmonized interpretation of the term "unregistered ship" across
the above-mentioned conventions and take appropriate decision.

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