a) What are the objectives of “London Dumping Convention”? How are these objectives achieved?
The objective of the London Convention and Protocol is to promote the effective control of all sources of marine pollution. Contracting Parties shall take effective measures to prevent
pollution of the marine environment caused by dumping at sea.
The purpose of the London Convention is to control all sources of marine pollution and prevent pollution of the sea through regulation of dumping into the sea of waste materials. A so-called “black- and grey-list” approach is applied for wastes, which can be considered for disposal at sea according to the hazard they present to the environment. For the blacklist items dumping is prohibited. Dumping of the grey-listed materials requires a special permit from a designated national authority under strict control and provided certain conditions are
met. All other materials or substances can be dumped after a general permit has been issued.
The purpose of the Protocol is similar to that of the Convention, but the Protocol is more restrictive: application of a “precautionary approach” is included as a general obligation; a “reverse list” approach is adopted, which implies that all dumping is prohibited unless explicitly permitted; incineration of wastes at sea is prohibited; export of wastes for the
purpose of dumping or incineration at sea is prohibited. Extended compliance procedures and technical assistance provisions have been included, while a so-called transitional period allows new Contracting Parties to phase in compliance with the Protocol over a period of five years, provided certain conditions are met.
Trace the historical importance of LLMC 1976 Convention. Explain briefly the contents of LLMC 1976 Convention.
The International Maritime Organization (IMO) first set limits on maritime accident liability in 1957 with the Convention Relating to the Limitation of the Liability of Owners of Seagoing Ships.
In 1976, the Convention on Limitation of Liability for Maritime Claims (LLMC) came into force with much higher liability limits. In some cases the amounts were two or three times the amounts specified in the earlier convention.
Environmental standards had improved or been implemented for the first time in some regions during these years. The growing public knowledge of pollution and its impact on the environment mirrored sentiments around the world. Also, medical treatments of potential victims were also becoming more elaborate and expensive at this time and contributed to the potential exposure of ship owners. The cost controls put in place try and balance personal protections with the responsibilities of a ship owner. With ongoing unlimited risk much of the
financing for new ships would be unavailable except as a high risk product. This gave birth to the LLMC, 1976.
Loss of Life or Injury
Loss of life and personal injury is one of two types of claims made under the LLMC. The 1976 Convention set the maximum liability for ships 500 gross tons and under at 333,000 SDR. Special Drawing Rights, or SDR, is a type of financial instrument used by the International Monetary Fund. In the 2004 version of the LLMC the maximum liability for loss of life or injury was raised to 2 million SDR. At the same time larger ships were also included when the maximum gross tonnage was raised to 2000 tons.
Larger ships were subject to the following amounts before June 8, 2015:
>>For each ton from 2,001 to 30,000 tons, 800 SDR
>>For each ton from 30,001 to 70,000 tons, 600 SDR
>>For each ton in excess of 70,000, 400 SDR
New limits after June 8, 2015:
>>Less than 2000 tons 3.02 million SDR
>>For each ton from 2,001 to 30,000 tons, 1,208 SDR
>>For each ton from 30,001 to 70,000 tons, 906 SDR
>>For each ton in excess of 70,000, 604 SDR
Property Claims
The 1976 version of the LLMC set the limit for property liability at 167,000 SDR for ships less than 500 gross tons. Additional amounts for larger vessels were calculated at the rates below until the new LLMC limits were put in place June 8, 2015. These amendments were known as the 1996 protocol.
>>For each ton from 2,001 to 30,000 tons, 400 SDR
>>For each ton from 30,001 to 70,000 tons, 300 SDR
>>For each ton in excess of 70,000, 200 SDR
New limits effective June 8, 2015 raise the total liability for property claims.
>>Less than 2000 gross tons 1.51 million SDR
>>For each ton from 2,001 to 30,000 tons, 604 SDR
>>For each ton from 30,001 to 70,000 tons, 453 SDR
>>For each ton in excess of 70,000 tons, 302 SDR
a) Floating policy b) Subrogation c) Sue and Labour clause
(a)
Floating policy
A floating policy is a policy which describes the insurance in general terms, and leaves the name or names of the ship or ships and other particulars to be defined by subsequent declaration.
The subsequent declaration or declarations may be made by endorsement on the policy, or in other customary manner.
Unless the policy otherwise provides, the declarations must be made in the order of dispatch or shipment.
They must, in the case of goods, comprise all consignments within the terms of the policy, and the value of the goods or other property must be honestly stated, but an
omission or erroneous declaration may be rectified even after loss or arrival, provided the omission or declaration was made in good faith.
Unless the policy otherwise provides, where a declaration of value is not made until after notice of loss or arrival, the policy must be treated as an unvalued policy as regards the subject-matter of that declaration.
Construction policy or builder’s policy: Insures vessel while in course of construction, usually from the time of keel laying until completion of trials and handing over to owner of the vessel.
(b)
Closely connected with the concept of insurable interest is the principle of indemnity, under which the assured is entitled to be compensated precisely to the extent of the loss he has suffered as a result of the occurrence of an event against which the insurer has agreed to protect him. In other words, the assured is not permitted to make a profit on
the insurance.’
Subrogation
From the doctrine of indemnity two rules are derived. The first is that where the insurer settles for a total loss the assured must abandon what is left of the thing insured to the underwriter. The other rule is expressed in the doctrine of subrogation. Under this doctrine, if the loss or damage is occasioned through the negligence or other unlawful act of a third party, so that the assured can claim damages, or if the assured has a contractual right to compensation, then the Insurer IS entitled to take over such rights on settling the loss.
(c)
Sue and Labour Clause (Duty of Assured)
By the terms of this clause, when the subject matter insured is likely to be lost or damaged, the assured is expected to act as if he was uninsured and take measures, and if necessary spend money, to try to avert or minimize any loss which might be recoverable under the policy.
In case of any loss or misfortune it is the duty of the assured to take such measures as may be reasonable for the purpose of averting or minimizing a loss which would be recoverable under this insurance.
With respect to Salvage convention:
a) Art 12: condition for reward b) Art 13: Criteria for reward c) Art 14: Special Compensation.
Article 12 – Conditions for reward
>> Salvage operations which have had a useful result give right to a reward.
>> Except as otherwise provided, no payment is due under this Convention if the salvage operations have had no useful result.
>> This provision shall apply, notwithstanding that the salved vessel and the vessel undertaking the salvage operations belong to the same owner.
Article 13 – Criteria for fixing the reward
The reward shall be fixed with a view to encouraging salvage operations, taking into account the following criteria without regard to the order in which they are presented below:
>> the salved value of the vessel and other property;
>> the skill and efforts of the salvers in preventing or minimizing damage to the environment;
>> the measure of success obtained by the salver;
>> the nature and degree of the danger;
>> the skill and efforts of the salvers in salving the vessel, other property and life;
>> the time used and expenses and losses incurred by the salvers;
>> the risk of liability and other risks run by the salvers or their equipment;
>> the promptness of the services rendered;
>> the availability and use of vessels or other equipment intended for salvage operations;
>> the state of readiness and efficiency of the salver’s equipment and the value thereof.
The rewards, exclusive of any interest and recoverable legal costs that may be payable thereon, shall not exceed the salved value of the vessel and other property.
Article 14 – Special compensation
>> If the salver has carried out salvage operations in respect of a vessel which by itself or its cargo threatened damage to the environment and has failed to earn a reward under article 13, he shall be entitled to special compensation from the owner of that vessel equivalent to his expenses.
>> If, the salver by his salvage operations has prevented or minimized damage to the environment, the special compensation payable by the owner to the salver may be increased up to a maximum of 30% of the expenses incurred by the salver. However,
the tribunal, if it deems it fair and bearing in mind the relevant criteria set out in article 13, may increase such special compensation further, but in no event shall the total increase be more than 100% of the expenses incurred by the salver.
>> The total special compensation shall be paid only if and to the extent that such compensation is greater than any reward recoverable by the salver under article 13.
>> If the salver has been negligent and has thereby failed to prevent or minimize damage to the environment, he may be deprived of the whole or part of any special compensation due under this article.
Explain the roles and responsibilities of flag state and port state as laid down in MLC 2006.
Title 5 of MLC addresses the following issues:
Flag State responsibilities – To define the national Flag State requirements – the inspection and certification of vessels against the new Convention and national requirements – for having procedures for handling seafarers’ complaints. Each Member State shall ensure that on ships that fly its flag there are on board procedures for the fair, effective and expeditious handling of seafarers’ complaints alleging breaches of the requirements of the Convention (including seafarers’ rights). Complaints policy / procedures (copy to seafarers) must contain the contact information for competent authority in flag state.
Port State responsibilities – The inspection of its own national flagged vessels in port – To enforce the new Convention standards on foreign flagged ships under the ‘no more favourable treatment’ requirement of the Convention – for having procedures for handling seafarers’ complaints made on shore.
Where there are grounds to believe that deficiencies constitute a serious breach of the requirements of the Convention (including seafarers’ rights), or represent a significant danger to seafarers’ safety, health or security, inspectors are empowered to prohibit the ship from leaving port until necessary actions are taken.
Onboard complaints procedures
Seafarers have the right to complain directly to the master and, where they consider it necessary, to appropriate external authorities. Any complaint procedure used has to ensure
confidentiality and safeguard against possible victimisation of the seafarer filing the complaint.
Describe the duties and responsibilities of coastal state when a foreign flag vessel breaches the laws related to territorial sea, contiguous zone and archipelagic waters as per UNCLOS.
The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the
territorial sea, in respect of all or any of the following:
>> the safety of navigation and the regulation of maritime traffic;
>> the protection of navigational aids and facilities and other facilities or installations;
>> the protection of cables and pipelines;
>> the conservation of the living resources of the sea;
>> the prevention of infringement of the fisheries laws and regulations of the coastal State;
>> the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;
>> marine scientific research and hydrographic surveys;
>> the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.
Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating
to the prevention of collisions at sea.
The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. In particular, in the application of this Convention or of any laws or regulations adopted in conformity with this Convention, the coastal State shall not:
impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State.
The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject.