E

LEGAL COMMITTEE LEG 108/8/1

108th session 28 May 2021
Agenda item 8 Original: ENGLISH
Pre-session public release: ☒

UNIFIED INTERPRETATION ON THE TEST FOR BREAKING THE OWNER'S RIGHT

TO LIMIT LIABILITY UNDER THE IMO CONVENTIONS

Comments on document LEG 108/8

Note by the Secretariat

SUMMARY

Executive summary: This document provides comments on document LEG 108/8 and
additional information on the possible options for the adoption of a
Unified Interpretation on the test for breaking the owner's right to limit
liability under the IMO conventions

Strategic direction, 6
if applicable:

Output: 6.20

Action to be taken: Paragraph 26

Related documents: LEG 107/9/2, LEG 107/18/2 and LEG 108/8

Introduction

1 This document is submitted in accordance with the provisions of paragraph 6.6.5 of

the Organization and method of work of the Legal Committee (LEG.1/Circ.9) and provides
comments on document LEG 108/8.

2 The remote Intersessional Group on the Unified Interpretation on the Test for Breaking
the Owner's Right to Limit Liability under the IMO Conventions (the test), established at
LEG 107, was instructed, in addition to the development of the text of a draft Unified
Interpretation on the test, to "develop the text, and further consider the vehicle for the adoption,
of a draft resolution of either a Conference of States Parties, the Assembly, or the Legal
Committee for the Unified Interpretation." (LEG 107/18/12, paragraph 9.15).

3 The Group considered the three possible vehicles for the adoption of the Unified
Interpretation on the test. The majority of the Group opted for an Assembly resolution as the
vehicle for adoption, for consistency with past practice in the Legal Committee and Assembly.
This option was also deemed more expeditious and utilized existing fora and rules of
procedure.

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4 The Group noted that some uncertainty still surrounded the procedure that would be
involved for adoption by a conference of the States Parties to proceed, and requested the IMO
Secretariat to advise LEG 108 accordingly, further to the comments in paragraph 9.12 of
document LEG 107/9/2.

5 As requested, this document provides more information on the different fora and
vehicles for the adoption of the draft Unified Interpretation on the test.

Forum and vehicle: resolution of the Legal Committee, the Assembly and the
Conference of States Parties

Legal Committee

6 The conventions envisaged in the draft Unified Interpretation, namely the Convention
on Limitation of Liability for Maritime Claims, 1976 (LLMC 1976), the International Convention
on Civil Liability for Oil Pollution Damage, 1992 and the International Convention on Liability
and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious
Substances, 2010 do not confer specific functions on the Legal Committee for interpretation of
these instruments. The Legal Committee performs functions under these conventions in terms
of amendments to the limits of liability only.

7 However, the Legal Committee consists of all the Members of the Organization and
has the general competence or mandate to consider any legal matters within the scope of the
Organization pursuant to Article 33 of the IMO Convention.

8 Moreover, resolution A.1131(31) on List of outputs for the 2020-2021 biennium,

designates the Legal Committee as one of the parent organs for output 6.1 "Unified
interpretation of provisions of IMO safety, security, environment, facilitation, liability and
compensation-related conventions" under Strategic direction 6 – Ensure regulatory
effectiveness.

9 The Legal Committee is therefore an appropriate forum for the interpretation of the
conventions envisaged in the draft Unified Interpretation on the test, based on the general
competence of the Committee found in Article 33 of the IMO Convention. It is also on this basis
that the Committee adopted resolution LEG.4(91) on Implications for the reference in
article 1.5(a)(ii) of the HNS Convention to "noxious liquid substances carried in bulk" for
example.

10 States Parties to an instrument are the best interpreters of their own agreement and
interpretation of treaties should remain the sole prerogative of these Parties to the instruments
in question. Pursuant to this and following the conclusions of the International Law Commission
on Subsequent agreements and subsequent practice, as set out in document LEG 107/9/2,
the States Parties to the different conventions should be the ones interpreting the test and the
wording of the resolution should reflect this agreement among them. In this context, while the
forum for the adoption could be the Legal Committee, the resolution should be a resolution of
and by the States Parties to the relevant conventions.

11 Several IMO conventions would be subject to this Unified Interpretation, for which
there are different States Parties. The conventions are:

.1 LLMC 1976 and the Protocol of 1996 to amend the Convention on Limitation
of Liability for Maritime Claims, 1976 since the two treaties are in force and
some Governments have acceded to the 1996 LLMC Protocol only;

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.2 the Protocol of 1992 to amend the International Convention on Civil Liability

for Oil Pollution Damage, 1969; and

.3 the International Convention on Liability and Compensation for Damage in

Connection with the Carriage of Hazardous and Noxious Substances
by Sea, 1996 and the 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, although Governments
are reminded to ratify the 2010 HNS Protocol rather than the 1996 HNS
Convention.

12 As there are different States Parties to the different conventions, the States Parties
would need to agree on the Unified Interpretation of each instrument in separate resolutions.
As the 2010 HNS Convention has still not entered into force, it is recommended that it is not
included in a resolution at this stage.

13 If the Legal Committee is considered the appropriate forum for the adoption of the
resolution, the drafting of the resolution would need to be adjusted accordingly.

14 In the Preamble, instead of writing "The Legal Committee", it would be:

.1 "The States Parties to the [Convention], present at the [109th] session of the
Legal Committee ……"; or

.2 "The Legal Committee, including the States Parties to the [Convention],

present at its [109th] session…"

15 The last clause of the Preamble would read:

"HAVING CONSIDERED the recommendations made by the Legal Committee at

its 108th session, pursuant to Article 33 of the Convention on the International
Maritime Organization:".

16 The first operative paragraph would start with the verb "AGREE" if option .1 above is
chosen, or AGREE[S] if option .2 is selected. The remaining text of the operative paragraph
would be adjusted according to the convention concerned.

17 The document issuing the resolution would still use the symbol of the Legal
Committee (LEG).

Assembly

18 The conventions envisaged in the draft Unified Interpretation do not confer specific
functions on the Assembly for interpretation of these instruments. However, the Assembly is
the highest body of the Organization and consists of all the Members. Based on Article 15(j)
of the IMO Convention, the Assembly is also an appropriate forum for the interpretation of the
conventions envisaged in the draft Unified Interpretation on the test. It is on this basis that
resolutions A.1028(26) on Issue of Bunkers certificates to bareboat-registered vessels,
A.1055(27) on Issue of Bunkers certificates to ships that are also required to hold a CLC
certificate and A.1124(30) on Delegation of authority to issue certificates of insurance or other
financial security required under the 1992 Civil Liability Convention and the 2010 Hazardous
and Noxious Substances Convention have been adopted.

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19 However, while the forum for the adoption could be the Assembly, the reasoning in
paragraphs 11 and 12 above would also be relevant and the resolution should be a resolution
of the States Parties to the relevant conventions reflecting the agreement among them on the
interpretation of the test. In his case, the drafting of the resolution would also need to be
adjusted accordingly, as follows.

20 In the Preamble, instead of having "The Assembly", it could be:

.1 "The States Parties to the [cite convention], present at the […] session of the
Assembly…"; or

.2 "The Assembly, including the States Parties to the [cite convention], present
at its [...] session…"

21 The last clause of the Preamble would read:

"HAVING CONSIDERED, pursuant to Article 15(j) of the Convention on the

International Maritime Organization the recommendations made by the Legal
Committee at its [108th] session, pursuant to Article 33 of the Convention:".

22 The first operative paragraph would start with the verb "AGREE" if option .1 above is
chosen, or AGREE[S] if option .2 above is selected. The remaining text of the operative
paragraph would be adjusted according to the convention on which the Parties concerned
adopt the Unified Interpretation.

23 The document issuing the resolution would use the symbol of the Assembly (A).

Conference of States Parties

24 The third forum referred to in document LEG 107/9/2 was a Conference of States
Parties, envisaged to be organized as a separate meeting held in conjunction with a session
of the Legal Committee. However, in the past, such conferences have only been convened at
IMO to adopt a new treaty or a protocol (i.e. amendments) to an existing one. Since there is
no precedent of a conference being convened solely for the purpose of the adoption of a
Unified Interpretation, it is not clear whether such a conference would require the approval of
the Assembly as per Article 15(l) of the IMO Convention.

25 The conclusions of the ILC envisage resolutions of conferences of States Parties

notably when these conferences are established by treaties. They are unclear whether, in the
case of IMO, they would have more legal weight than resolutions of the Assembly. Thus, if the
Legal Committee can consider that the resolution can be of the States Parties in the Assembly
or the Legal Committee, it may not be necessary to convene a conference of States Parties
for the sole purpose of adopting a Unified Interpretation. Thus, the Committee could conclude
that a resolution on the Unified Interpretation, either in the Legal Committee or in the Assembly,
has the necessary legal weight, as long as the resolution reflects the agreement by the States
Parties to the relevant conventions regarding their interpretation.

Action requested of the Committee

26 The Legal Committee is invited to note the information contained in this document
and comment or decide, as it deems appropriate.

___________

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