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Cablegate: International Maritime Organization (Imo) Report of The

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UNCLAS SECTION 01 OF 04 LONDON 007916

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E.O. 12958: N/A
TAGS: IMO EWWT AORC ASEC UK PTER
SUBJECT: INTERNATIONAL MARITIME ORGANIZATION (IMO) REPORT OF THE
NINETY-SECOND SESSION OF THE LEGAL COMMITTEE, PARIS, OCTOBER 16-20
2006.

1. SUMMARY: The International Maritime Organization (IMO) Legal
Committee held its 92nd session in Paris, France at UNESCO, October
16-20 (LEG 92), under the chairmanship of Professor Lee-Sik Chai
(Republic Of Korea). The Legal Committee discussed, among other
issues, the Draft Wreck Removal Convention (DWRC), provisions of
financial security relating to the Athens Convention Protocol, and
voluntary guidelines for the fair treatment of seafarers. The
Committee re-elected Professor Lee-Sik Chai as Chairman for 2007 by
acclamation and also by acclamation elected Mr. Kofi Mbiah (Ghana)
and Mr. Walter de Sa Leitao (Brazil) as Vice-Chairmen. END
SUMMARY.

2. DELEGATION INFORMATION: Delegations from sixty-eight (68)
States, associate member Hong Kong, along with twenty (20) other
intergovernmental and nongovernmental bodies, including the
International Labour Organization, attended LEG 92. The United
States delegation for LEG 92 consisted of Captain Chuck Michel, U.S.
Coast Guard (Representative); Lieutenant Commander Laurina
Spolidoro, U.S. Coast Guard (Alternate); and the following advisers:
Lieutenant Commander Bud Darr, U.S. Coast Guard; Lieutenant Lonnie
Kishiyama, Department of Homeland Security Office of the General
Counsel; Mr. Robert Blumberg, Department of State, Bureau of Oceans
and International Environmental and Scientific Affairs; Mr. Gregory
Linsin, Department of Justice, Environment and Natural Resources
Division; Mr. Stephen Miller, Department of State, Office of
Transportation Policy; Mr. Walter Rabe, U.S. Coast Guard; Special
Agent John Cornett, U.S. Coast Guard Investigative Service; Ms.
Lizabeth Burrell, Maritime Law Association of the United States; Mr.
Douglas Stevenson, Center for Seafarers' Rights, Seamen's Church
Institute.

3. DRAFT WRECK REMOVAL CONVENTION (DWRC):
This Convention is being drafted in order to create a uniform scheme
for States Parties to take measures established under the Convention
to remove wrecks posing a hazard in the Exclusive Economic Zone of a
State Party. The Convention provides for compulsory insurance and
direct action against the insurer. The negotiations have been
ongoing for well over ten (10) years and continued at LEG 92.

A. The DWRC will be taken to a Diplomatic Conference in Nairobi,
Kenya from 14 to 18 May 2007. Two suggestions, discussed
informally, for Chairmanship of the Dip Con include Mr. Gaute
Sivertsen (Norway) and Mr. Mark Gauthier (Canada). The IMO
Secretariat welcomes other suggestions.

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B. The Committee conducted an article-by-article review of the
draft text considering and approving most of the editorial
amendments proposed by the Secretariat and the lead delegation of
the Netherlands in the annex to LEG 92/4. The text for the
diplomatic conference will be prepared and circulated by the
Secretariat as soon as possible. The Committee also considered the

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substantive issues raised in written submissions to the Committee.
As discussed below, two significant substantive changes will be
reflected in the text for the diplomatic conference. The text of
paragraph 2 of article 13 will be placed in square brackets,
following lengthy and controversial discussions of provisions to
allow States to opt to extend the scope of all or portions of the
DWRC to a coastal State's territory and territorial sea. Article 16
will incorporate by reference the compulsory dispute settlement
mechanisms in Part XV of the United Nations Convention on the Law of
the Sea, 1982 (UNCLOS).

C. Article 11(1) - terrorism exemption. The International Group of
P and I Associations (P and I Clubs) and the International Chamber
of Shipping (ICS) proposed to exempt shipowners from liability for
acts of terrorism by amending article 11(1)(a) to include the word
"terrorism" as a complete defense. LEG 92/4/4. The Netherlands and
the U.S. were in favor of retaining the current base text, but some

LONDON 00007916 002 OF 004

2006.

delegations supported the exemption. The issue remained unresolved
as the Chairman noted that without a Member Government proposal to
modify the text, it would remain unchanged, and the issue is likely
to be raised again at the diplomatic conference.

D. Article 16 - mandatory dispute settlement.

(1) Italy and Germany proposed two alternative amendments to
article 16 concerning the settlement of disputes. LEG 92/4/1. The
first would incorporate the mandatory dispute settlement mechanism
in Part XV of UNCLOS. The second would require submission of
disputes to the International Tribunal on the Law of the Sea
(ITLOS). Some delegations, including the U.S., preferred to leave
the draft text unchanged. The ITLOS option was rejected, and the
Chairman invited Italy and Germany to work with interested
delegations to revise their proposed text to take into account
concerns raised about the complexity of importing UNCLOS Part XV.

(2) The new proposal, in LEG 92/WP.6/Rev.1, was adopted over
explicit objections from the U.S. and several other delegations that
the Committee had not taken a decision to amend the current text of
article 16.

(3) Delegations that supported maintaining the current text, some
of whom could accept alternative text as a compromise, included:
Argentina, Turkey, Cyprus, U.S., Panama, Ecuador, Ukraine, the
Bahamas, the Netherlands, China, Liberia, Sweden, India, Republic of
Korea, Belize, Ghana, the Philippines, Nigeria, Denmark, U.K., and
Algeria. The Secretariat reported a tally of those who intervened:
twenty-one (21) spoke in favor of the current text; twenty-nine (29)
spoke in favor of the first option, five (5) or six (6) of whom
preferred the current text; eight (8) spoke in favor of the second
option. When the compromise text in LEG 92/WP.6/Rev.1 was accepted
by the Chairman, the U.S. and several other delegations (Turkey,
Panama, Cyprus, and Liberia) intervened to state their understanding
that a decision had not yet been taken to amend the current text.
Several other delegations sided with the Chair's recollection that a
decision had been taken, and the U.S., Panama, and Cyprus requested
to have their objections noted in the report.

E. Extension of the scope of the Convention.

(1) Norway, Italy, and Denmark proposed two alternatives to extend
the scope of the Convention beyond the Exclusive Economic Zone (EEZ)
into a coastal State's territory, including the territorial sea.
LEG 92/4/3. The first alternative was a mandatory extension of the
scope of the Convention through an amendment to the definition of
"Convention Area." The second alternative was in the form of an
opt-in provision that would allow States Parties to apply the
provisions of the DWRC to their territory, including the territorial
sea as against the world, including States Parties and potentially
non States Parties (see below discussion regarding Article 17) who
have not similarly opted-in. The second alternative included
consequential amendments to other provisions in the DWRC, including
the definitions of "Convention Area" and "ship."

(2) Debate on this issue was lengthy and contentious with Cyprus,
the Netherlands, and others calling for a vote on the issue of
whether to amend the current base text. As a compromise, the Chair
accepted a subsequent proposal from Denmark to place article 13(2)
in square brackets for the diplomatic conference and invite
interested delegations to meet in London 12-16 March 2007, and by
correspondence to further consider the issue and to develop text
that might be more acceptable.

(3) During the review of the draft report, there was significant
debate over whether a majority of the Committee had preferred to
keep the current base text rather than amend it. It was recalled

LONDON 00007916 003 OF 004

2006.

that out of twenty-eight (28) delegations who spoke, fifteen (15)
had preferred to keep the present text, but some of those
delegations could accept some kind of opt-in provision. In the end,
it was decided that the report would indicate that although a slight
majority favored retaining the current text, the Committee was
divided.

F. Article 17 - application to non States Parties. The U.S.
proposal to amend the text of article 17 to provide that the
Convention does not purport to alter rights of non Parties under
customary international law was supported by Japan, Turkey, Peru,
and Brazil. Cyprus and Argentina expressed concerns with the
Convention's application to non States Parties if the scope of the
Convention is extended to the territorial sea or internal waters.
Canada, Greece, and most of the other delegations stated that the
U.S. proposal was not necessary because it is self-evident, under
article 34 of Vienna Convention on the Law of Treaties 1969, that
States cannot be bound without their consent. Canada added that
including the U.S. proposed language would be harmful in that it
would call into question the customary international law codified in
article 34 of the Vienna Convention for treaties that did not
contain similar language. The U.S. then requested that it be
reflected in the report that the Committee had decided that the DWRC
does not bind and cannot be applied to non-Parties who have not
consented to be bound, in accordance with the Vienna Convention on
the Law of Treaties.

4. PROVISIONS OF FINANCIAL SECURITY/CREW CLAIMS: The Legal
Committee encouraged the Joint IMO/ILO ad hoc Expert Working Group
on Liability and Compensation regarding Claims for Death, Personal
Injury and Abandonment of Seafarers to continue its work on finding
a longer term sustainable solution to the problem. The Joint
Secretariat was invited to schedule a meeting for the sixth session

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of the Joint Working Group.

5. PROVISIONS OF FINANCIAL SECURITY/ATHENS CONVENTION: The Legal
Committee adopted Guidelines for implementation of the Athens
Convention as proposed by Norway in LEG 92/WP.5. The Guidelines
encourage States to ratify the Convention with a reservation
allowing States to issue and accept insurance certificates
certifying that cover for terrorism liability, in the war risks
market, is available and limited to SDR 250,000 per passenger up to
a total of SDR 340,000,000 per ship, per incident and further
limiting carrier liability for acts of terrorism to the same amount.
The U.S. intervened to reiterate our procedural treaty law concerns
with employing a standard reservation clause to amend important
terms of the 2002 Protocol and our position that carriers should not
be exempt from liability for acts of or related to terrorism without
regard to fault. Although several delegations, including Denmark,
acknowledged that the Diplomatic Conference had decided that
carriers should not be exempt from liability for terrorism, the
prevailing view was that the compromise Guidelines were necessary to
allow States to ratify the 2002 Protocol and presented the best
possible current solution to the problem of the market's inability
to meet the compulsory insurance requirements of the Protocol.

6. FAIR TREATMENT OF SEAFARERS: As decided at LEG 91, the Legal
Committee convened an ad hoc Working Group to review the Guidelines
on Fair Treatment of Seafarers in the Event of a Maritime Accident
that entered into effect on 1 July 2006. The Working Group was
tasked to consider concerns raised by Governments at LEG 91 and
during the intersessional period.

A. The Working Group considered the issues noted in the paper
submitted by the U.S., Canada, Spain, the Netherlands, and France.
LEG 92/6/2. Although some delegations, including the U.S., believed
there was agreement on the proposal of the International Chamber of
Shipping (ICS), the International Shipping Federation (ISF), and the

LONDON 00007916 004 OF 004

2006.

International Confederation of Free Trade Unions (ICFTU) in LEG
92/6/4 at paragraph 6, to amend a wage provision in the Guidelines,
the report concluded that the Working Group was unable to reach
consensus on any amendments to the Guidelines. The Chair of the
Working Group, when introducing the report, explained that there had
in fact been agreement in the group on the wage proposal. LEG
92/WP.7, para. 6.9.

B. Due to time constraints, the Committee did not approve the
revised terms of reference for the Joint IMO/ILO ad hoc Expert
Working Group on Fair Treatment of Seafarers in the Event of a
Maritime Accident and agreed to retain the item on the agenda for
the next Legal Committee meeting in the fall of 2007.

C. The U.S. intervened to state that we cannot fully implement the
Guidelines and supported continuing review of the Guidelines by the
Legal Committee. The Netherlands also intervened to state that
because the Guidelines were not amended, they would continue, until
a solution is found, to interpret the wages provisions in a way that
is consistent with their domestic law in order to implement the
Guidelines.

7. TECHNICAL COOPERATION ACTIVITIES RELATED TO MARITIME
LEGISLATION: The Director of the Technical Cooperation Division
proposed, in LEG 92/9/1, to report on the Technical Cooperation
sub-programme related to maritime legislation biennially rather than
on a semi-annual basis. The Committee decided that, for the time
being, it is preferable to receive the reports semi-annually.

8. BIENNIUM ACTIVITIES WITHIN THE CONTEXT OF THE ORGANIZATION
STRATEGIC PLAN: After some discussion noting the need for a clear
programme of work and benchmarks to measure progress, the Legal
Committee approved the Secretariat's proposed planned outputs for
the Committee in part 2 of the annex to LEG 92/10. The Committee
also approved amendments to the Guidelines on Work Methods and
Organization of the Work of the Legal Committee accounting for the
Strategic Plan of the Organization, annex 2 to LEG 92/10, and
requiring the establishment of intersessional Correspondence Groups
when Working Groups are formed, LEG 92/10/1. The revised Guidelines
will be issued as LEG.1/Circ.4.

TUTTLE

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