INTERNATIONA L OIL POLLUTIO N COMPENSATIO N FUN D ASSEMBLY 14th session Agenda item 25 FUND/A .14/23 11 October 199 1 Original : ENGLIS H
RECORD OF DECISIONS OF THE FOURTEENTH SESSION OF THE ASSEMBL Y
(held from 8 to 11 October 1991 )OpenIng of the Sessio n
The 14th session of the Assembly was opened by Mr J Bredholt (Denmark) . in his capacity as representative of the delegation from which the Chairman of the previous session was elected .
1
Adoption o the e d a
The Assembly adopted the Agenda as contained in document FUND/A .14/1 .
2
Election of the Chairman and Two Vice-Chairme n
The Assembly elected the following delegates to hold office until the next regular session o f the Assembly : Chairman : Mr J Bredholt (Denmark ) First Vice-Chairman :
Professor H Tanikawa (Japan) Second Vice-Chairman :
FUNDIA .14/23 2 -3 Examination of Credentlsl s
The following Contracting States were present :
Algeria Japan
Bahamas Kuwait
Cameroon Liberia
Canada Monac o
Cate d'Ivoire Netherlands
Cyprus Norway
Denmark Polan d
Fiji Portuga l
Finland Spai n
France Sri Lanka
Germany Swede n
Ghana Syrian Arab Republic
Greece Union of Soviet Socialist Republics
India United Arab Emirates
Indonesia United Kingdom
Italy
The Assembly took note of the information given by the Director that all Contracting State s participating had submitted credentials which were in order .
The Assembly noted that Malta had deposited its instrument of accession to the Fun d Convention on 27 September 1991 and that the Convention will enter into force in respect of Malta o n 26 December 1991 . The Director informed the Assembly that, after consultation with the Chairman, h e had invited Matta to send observers to the present session of the Assembly, pursuant to Rule 4 of th e Rules of Procedure of the Assembly .
The Assembly decided to grant observer status to the Republic of Korea and Jamaica, pursuan t to requests set out in documents FUND/A.14/20 and FUND/A.14/20/Add .1, and to the Democrati c People's Republic of Korea, pursuant to a request presented during the present session of the Assembly.
The following non-Contracting States were represented as observers : Matt a
Belgiu m Brazi l Chil e China
Democratic People's Republi c of Kore a
The following inter-governmental and international non-governmental organisations participated as observers :
International Maritime Organization (IMO )
United Nations Environment Programme (UNEP ) Baltic and International Maritime Council (BIMCO ) Cristal Ltd
International Chamber of Shipping (ICS) International Group of P & I Clubs
International Tanker Owners Pollution Federation Ltd (ITOPF ) Oil Companies International Marine Forum (OCIMF )
Jamaica Mexic o Morocco
Republic of Korea Saudi Arabi a
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Report _ot tho _Director 4.1
The Director introduced the report of the activities of the IOPC Fund since the 13th session o f the Assembly, contained in document FUND/A .14/2 .
4.2
The Assembly expressed its gratitude to the Director and the other members of the Secretariat for the efficient way in which they had administered the IOPC Fund .
4 .3
The Assembly noted with satisfaction the continued growth of the membership of the IOP C Fund and instructed the Director to continue his efforts to increase the number of Member States . 4 .4
The Assembly congratulated the Director on the IOPC Fund's 1990 Annual Report whic h contained an instructive presentation of the activities of the Organisation.
4.5
The Assembly noted that a revised version of the IOPC Fund's General Information Booklet had been published in June 1991 .
4.6 In view of the fact that some Member States had not submitted their reports on oil receipts a s provided in the Internal Regulations . the Assembly emphasised the importance which these reports ha d for the functioning of the IOPC Fund and invited those States which had not yet done so to submi t their reports as soon as possible .
4 .7 The Assembly took note of the eight incidents involving the IOPC Fund which had occurre d since its 13th session, in particular the RIO ORINOCO incident in Canada and the AGIP ABRUZZO an d HAVEN incidents in Italy.
4 .8 The Assembly noted the changes in personnel which had taken place within the Secretaria t of the IOPC Fund and welcomed Mrs Sally Broadley, who would be joining the IOPC Fund very shortly as Claims Officer, and Miss Diane Grace, who had taken up the post of Secretary to the Claims Officer .
5
gep ort on Investment s 5.1
The Assembly took note of the Director's report on investments contained in documen t FUND/A .14/3 .
5.2 In view of recent events in the London banking market, the Assembly discussed whether th e principles laid down in Internal Regulation 10.2 and Financial Regulation 7 .1 which govern the IOPC Fund's investments contained adequate safeguards. It was noted that the IOPC Fund would in th e future be holding significant sums of money .
5 .3 The Assembly instructed the Director to examine the IOPC Fund's investment policy, i n consultation with the External Auditor, and to submit a report on this issue to the Assembly at its 15t h session.
6
external Auditor's Re p ort on Financial_%stements for the Flnancial Period 1 January to 31 December 199 0
6.1 The Director introduced document FUND/A .14/4 containing the External Auditor's Report an d the Financial Statements of the IOPC Fund for the period ended 31 December 1994 . A representative of the External Auditor introduced the Auditor's report on the Financial Statements.
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-6.3
The Assembly approved the accounts of the IOPC Fund for the financial period 1 January to 31 December 1990 .
7
Begorl
on Contribution sThe Assembly took note of the Director's report on contributions contained in documents FUND/A .14/5 and FUND/A.14/5/Add .1 . It noted that only very small amounts of contributions were outstanding and expressed satisfaction with the situation regarding the payment of contributions.
8
Re p orts of the Executive Committee on its 25th, 26th .27th and 28th Sessl o
8 .1 The Chairman of the Executive Committee. Mr W W Sturms (Netherlands), informed th e Assembly of the work of the Committee during its 25th, 26th, 27th and 28th sessions and reported t o the Assembly the decisions taken by the Committee at these sessions (documents FUND/EXC .25/2, FUND/EXC .26/5, FUND/EXC .27/6 and FUND/EXC .28/9) . The Assembly approved the reports of th e Executive Committee.
8 .2
The Chairman expressed the gratitude of the Assembly to the Chairman of the Executive Committee for the work of the Committee achieved under his Chairmanship .
8 .3 The Assembly expressed its satisfaction with the restructuring of the documentation presente d to the Executive Committee, in accordance with the wish expressed by the Assembly at its 13t h session .
8 .4 In the light of the experience gained from certain recent incidents of major importance, th e Assembly discussed whether it would be useful for the IOPC Fund to carry out its own independen t investigations into the cause of incidents so as to enable the Fund to form an opinion at an earl y stage as to whether an incident was due to the fault or privity of the shipowner or whether there were any grounds for taking recourse action against third parties . The Assembly instructed the Director to make a study of this matter for consideration by the Assembly at its 15th session .
8 .5 The Assembly emphasised that any investigation carried out by the IOPC Fund into the caus e of an incident should not be allowed to detract from the main purpose for which the IOPC Fund wa s established, le the rapid settlement of claims.
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9
Elect on of Members of the Executh►e Eo
e e
The Assembly elected the following Contracting States as members of the Executive Committee : Elected unde r
Article 22 .2(a) of the Fund Convention Algeria Ghana Indi a Indonesi a Kuwait Liberia Sri Lanka
Union of Soviet Socialist Republics
10
Appointment -- of a ber
the Appeals Board
The Assembly appointed the following members and substitute members of the Appeals Boar d for a term of two years :
Members Substitute Members Mr N R Meemaduma (Sri Lanka) Mr N Schuldt (Germany) Mr H Bergaoui (Tunisia) Dr S Mittiga (Italy ) Mr F D Berman (United Kingdom) Mr S Kanazawa (Japan ) 11
Director's Authorlt to Settle Clai s 11 .1
The Director introduced document FUND/A.14/8 concerning the Director's authority to make fina l settlements of claims for compensation and indemnification .
11 .2 The Assembly decided to increase from 25 million (gold) francs to 37 .5 million (gold) francs th e general limit of the Director's authority to make final settlements of claims for compensation laid dow n in Internal Regulation 8 .4 .1 . The Assembly also decided that the Director should be authorised to settl e claims from individuals and small businesses up to an amount of 10 million (gold) francs in respect o f any one incident .
11 .3
In order to reflect these decisions, the Assembly decided to amend Internal Regulation 8 .4. 1 to read as follows :
8.4.1 Where the Director is satisfied that the Fund is liable under the Fun d Convention to pay compensation for pollution damage, he may, without the prior approval of the Assembly, make final settlement of any claim, if he estimates that th e total cost to the Fund of satisfying all claims arising out of the relevant incident is no t likely to exceed 37.5 million francs . The Director may in any case make final settlemen t of claims from individuals and small businesses up to an aggregate amount o f 10 million francs in respect of any one incident . The relevant date for conversion shall be the date of the incident in question .
11 .4
The Assembly also decided that the limits laid down in internal Regulation 8 .4 .1 should be reviewed every four years .
Elected unde r Article 22 .2(b) of the Fund Conventio n
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-11 .5 The Assembly stressed that, to the extent possible, the Director should, as had been done i n the past, submit to the Executive Committee for consideration claims involving questions of principle . for example as regards the interpretation of provisions in the Conventions, even in cases where h e would be entitled to make final settlements under internal Regulation 8.4.1 .
11 .6 The Assembly expressed the opinion that the Executive Committee should hold meetings a t such intervals as would be necessary to ensure the rapid settlement of claims .
12
Structure--of the_ Secretarlail 12 .1
The Assembly took note of the information contained in document FUND/A .14/9 concerning th e structure of the IOPC Fund Secretariat.
12 .2 The Assembly noted that the Executive Committee had approved the establishment of the post of Claims Officer from 1 September 1991, the post being classified at grade P3/P4 .
12 .3 The Assembly approved the Director's proposal for the following promotions with effect fro m 1 January 1992 :
(a) promotion of the Finance/Personnel Officer. Mr S 0 Nte, from grade P3 to grade P4 , reclassifying the post at grade P3/P4 ;
(b) promotion of the Director's Secretary . Mrs H Rubin, from grade G8 to grade Pi , reclassifying the post as Director's Secretary/Administrative Officer at grade G8/P1 ; an d (c) promotion of the Clerk-Secretary . Miss D Grace, to Principal Clerk-Secretary . at grade G6, reclassifying the post as Senior/Principal Clerk-Secretary at grade G5/G6 . 12 .4
It was noted that the actual grade of any future holder of these posts should be determine d on the basis of qualifications and experience .
13
Lease of the IOPC Funds Offices 13.1
The Director introduced document FUND/A .14/10 dealing with the lease of the IOPC Fund' s offices in the IMO headquarters building .
13.2 The Assembly noted with satisfaction the agreement reached between the Secretary-Genera l of IMO and the Director in respect of additional office space which had been made available to the IOPC Fund from 1 October 1991 .
13.3 With regard to the extension of the IOPC Fund's lease after the expiry of the present lease o n 31 October 1992, the Assembly expressed its satisfaction that an agreement in principle on such an extension had been reached between the Secretary-General of IMO and the Director . The Assembly instructed the Director to continue the discussions with the Secretary-General so that a forma l agreement in respect of the extended lease could be signed well in advance of that date . In the view of the Assembly, the new lease should be for a period of ten years . The Assembly emphasised that the new lease should give the IOPC Fund the option to obtain at least two additional office room s adjacent to the present offices, so as to give the Fund an adequate guarantee that sufficient additiona l space would be made available, should the need arise .
14
Budget 199 2 14 .1
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FUND/A.14/2 3
14 .2 While appreciating the Director's efforts to ensure the efficient administration of the IOPC Fund , the Assembly nevertheless stressed the importance of keeping the administrative costs at the lowes t
possible level .
1s
Increase of the Workin g Caaita l
15 .1 The Assembly considered document FUND/A .14/12 in which the Director had proposed an increase of the working capital of the IOPC Fund from £4 million to £B million . The Assembly agreed with the Director that the IOPC Fund should have a working capital at a sufficient level so as to enabl e it to make rapid payments of compensation to victims of oil pollution . It also agreed with the Directo r that It would not be appropriate for the IOPC Fund to rely on the possibility of raising money by wa y of bank loans, at least not in normal circumstances . The Assembly considered it necessary, however . to take into account the financial burden on contributors resulting from an increase of the working capital .
15.2 The Assembly decided to increase the working capital of the IOPC Fund from £4 million t o £6 million . In addition, the Assembly decided to review, at its 15th session, the question of whethe r a further increase of the working capital would be required .
IsAssessment of Annual Contributlon s 16 .1
The Director introduced documents FUND/A .14/13, FUND/A.14/13/Add.1 and FUND/A .14/WP .2 , which contained proposals for the levy of 1991 annual contributions .
16 .2 The Assembly decided to raise £5 million for 1991 annual contributions to the General Fund . £6 .7 million to the RIO ORINOCO Major Claims Fund and £15 million to the HAVEN Major Claims Fund . payable by 1 February 1992 .
16 .3 It was noted that, based on the relevant year's reports on contributing oil receipts, the levies decided by the Assembly would correspond to a contribution per tonne of contributing oil o f approximately £0 .0053305 for the General Fund, £0 .0074033 in respect of the RIO ORINOCO Major Claims Fund and £0 .0159915 in respect of the HAVEN Major Claims Fund .
16 .4 The Assembly decided to postpone any decision in respect of the surplus on the BRAD Y MARIA Major Claims Fund until it can be established whether there will be any surplus on th e THUNTANK 5 Major Claims Fund, and, if so, the amount of that surplus, for the reasons set out i n paragraph 5.5 of document FUND/A .14/13.
16 .5 The Assembly endorsed the Director's opinion that, in view of the fact that the IOPC Fun d would in the future be holding significant sums of money, he would be entitled to make investment s in excess of £2 million, which under Financial Regulation 7 .1 {c} should normally be the maximu m investment in any one bank, building society or discount house .
17
Future Develo p ment of the Intergovernmental Oil Pollution Llabliity and Com p ensation System based on the 1969 Civil Liability Convention and the 197 Fund Conventlort Intersesslonal Working Group
17 .1
The Assembly recalled that, at its 13th session, it had decided to set up an Intersessiona l Working Group with the following mandate :
FUND/A.14/23
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-(a) examining the prospects for the entry into force of the 1984 Protocols to the Civil Liability Convention and the Fund Convention ;
(b) considering whether it would be possible to facilitate the entry into force of th e content of the 1984 Protocols possibly by amending their entry into force provisions ;
(c) considering which substantive provisions in the existing Conventions and the 1984 Protocols appear to form the main obstacles to their continued relevance , including an examination of the present contribution scheme . "
17.2 The Assembly noted that the Intersessional Working Group held two meetings, the first on 1 3 and 14 March 1991, and the second on 17 June 1991, under the chairmanship of Mr A H E Pop p (Canada) . It also took note of the fact that the Working Group's considerations were based o n extensive documentation prepared by the Director (documents FUND/WGR .6/1-6/11) .
17 .3 The Chairman of the Working Group introduced the report of the Working Group containe d in document FUND/WGR .6/12, which was attached to document FUND/A .14/14 .
Amendment of the Entry Into Force Provisions and Adoption of New Protocols
17 .4 Many delegations expressed their strong support of the system of compensation established by the 1969 Civil Liability Convention and the 1971 Fund Convention, which they considered to be working remarkably well . For this reason, a number of delegations stressed the importance that th e 1984 Protocols to these Conventions should enter into force as soon as possible, so as to ensure th e viability of this system in the future . In the view of these delegations the best way of facilitating the entry into force of the 1984 Protocols to these Conventions would be to amend their entry into forc e provisions .
17 .5 One delegation expressed the view that the fact that the 1984 Protocol to the Civil Liabilit y Convention had not come into force was not due to the requirements for its entry into force, but was the result of the non entry into force of the 1984 Protocol to the Fund Convention . This delegation considered that once it could be anticipated that the 1984 Protocol to the Fund Convention woul d enter into force, the 1984 Protocol to the Civil Liability Convention would also come into force withou t difficulty . It was stressed that it would be undesirable for the Protocol to the Civil Liability Conventio n to enter into force before the Protocol to the Fund Convention . This delegation also expressed its concern as to the difficulties that would arise if two sets of instruments . viz the 1984 Protocols and any new instruments, were to be in force simultaneously . For this reason this delegation reserved it s position as to the need to amend the entry into force conditions of the 1984 Protocols.
17 .6
On the basis of the Working Group's report and the discussion during the present session, th e Assembly drew the following conclusions :
(a) The entry into force conditions of the 1984 Protocol to the Civil Liability Convention should b e amended so as to reduce the requirement as to the number of States each with not less tha n one million units of gross tanker tonnage from six to five or four.
(b) The entry into force provisions in the 1984 Protocol to the Fund Convention should b e amended so as to reduce the quantity of contributing oil required for the entry into force from 600 million tonnes : most delegations expressed preference for 400 million tonnes .
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FUND/A .14/23
(d) It would not be appropriate to amend Article 31 of the 1984 Protocol to the Fund Conventio n governing the denunciation of the 1989 Civil Liability Convention and the 1971 Fund Convention by reducing the quantity of contributing oil prescribed therein, even if the quantity of contributing oil required for the entry into force of that Protocol were to be reduced .
(e) There is no legal impediment to the adoption of new protocols to modify the 1959 Civil Liability Convention and the 1971 Fund Convention which would in practice replace the 1984 Protocols. 17 .7 The Assembly agreed in general with draft texts for new protocols containing entry into force provisions differing from those of the 1984 Protocols elaborated by the Director . These texts are set out in Annexes I and II to this report.
Treat Law Issues
17 .8 The Assembly took note of two studies carried out by the Director, at the request of th e Working Group, one concerning the need to avoid a situation in which two conflicting treaty regime s would be operational (document FUND/A.14/14/Add .1) and the other concerning treaty law issue s relating to States which have already expressed their consent to be bound by the 1984 Protocols (document FUND/A .14/14/Add .2) .
17.9
Some delegations stated that certain constitutional problems might arise if a State which has ratified the 1984 Protocols wanted to withdraw these ratifications .
17.10 After considering the issues dealt with in these documents, the Assembly expressed its genera l agreement with the conclusions drawn by the Director and with the texts of the draft resolution s contained therein, which are reproduced in Annexes III and IV to the present report .
Contribution Syste m
17 .11 On the basis of a proposal by the delegation of Japan, the Assembly discussed whether ther e should be introduced in the Fund Convention a "cap" on contributions payable by oil receivers in any given State .
17 .12 The Japanese delegation emphasised that the Japanese contributors paid a large part of the total contributions to the IOPC Fund . This delegation drew the Assembly's attention to the fact that the Japanese contributors' share of the annual contributions for 1980 (the IOPC Fund's second year of operation) was 44% and that their share represented 27% of the 1990 annual contributions . It was pointed out that the high percentage was partly due to the fact that large quantities of imported oil were received in one port and then transported to another port in Japan, resulting in these quantitie s being reported twice for contribution purposes. In the view of the Japanese delegation, it would be difficult for the Japanese Government to ratify the 1984 Protocol to the Fund Convention unles s guarantees could be given that the Japanese oil industry would not be excessively burdened by a large share of the total contributions levied under the Protocol. A solution could be to revise th e contribution system so as to include a cap on the contributions payable in respect of a single Membe r State . In principle, the Japanese delegation would favour a capping system on a permanent basis . However, in view of the difficulties that such a solution would probably cause to other Member States , the Japanese delegation would be prepared to accept such a cap being introduced as a transitional measure until the aggregate quantity of contributing oil received in all Member States reached a certai n level . Without such a capping system, the Japanese Government might lose the possibility of ratifyin g the 1984 Protocols at an early stage. The Japanese delegation pointed out that a capping system would only cover the contributions payable under the 1984 Protocol and would not affect the obligatio n to pay contributions under the 1971 Fund Convention .
FUND/A .14/23
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-contributor should pay the same amount per tonne of contributing oil received . They expressed th e view that a capping system would introduce an element of discrimination . since contributors in Membe r States benefiting from the capping provisions would pay a lower amount per tonne of contributing oi l than oil receivers in other Member States ; such a system would therefore distort competition betwee n the industries in various Member States . However, it was generally accepted that the question of suc h a system was mainly a political one and that the final decision on this issue would have to be take n by the International Conference convened for the purpose of adopting any new instruments .
17 .14 The Assembly took note of a text containing provisions introducing a capping system in th e f= und Convention . This text, which had been prepared by the Director in consultation with th e Japanese delegation, is reproduced in Annex V to the present report .
17 .15 Some delegations stated that the introduction of a capping system was not an alternative t o a reduction of the quantity of contributing oil required for the entry into force of the 1984 Protocol t o the Fund Convention, but a separate issue .
Adoption of Resolutio n
17 .16 The Assembly decided to make a request to the Secretary-General of IMO that an Internationa l Conference be convened as soon as possible to consider :
(a) the draft protocols modifying the 1969 Civil Liability Convention and the 1971 Fund Convention set out in Annexes I and II to this report ;
(b) the draft resolutions set out in Annexes III and IV : an d
(c) whether there should be introduced in the Fund Convention a system setting a cap o n contributions payable by oil receivers in any given State, along the lines set out in Annex V. 17 .17 The Assembly stressed the necessity of limiting any revision of the Civil Liability Convention an d the Fund Convention to the issues set out above, in order to ensure the early entry into force of an y
new instruments .
17 .18 The Assembly adopted a Resolution, the text of which is set out in Annex VI, containing a request addressed to the Secretary-General of IMO .
17 .19 The delegations of Greece and Italy reserved their position with respect to this Resolution .
18
Replacement of I s! uments Enumerated In Article 5 .3 o the and Co entlo
18 .1 The Assembly decided, in accordance with Article 5 .4 of the Fund Convention, to include the April 1989 Amendments to SOLAS 74 in the list of instruments contained in Article 5 .3(a) of the Fund Convention, with effect from 15 April 1992 . The reference to the instrument listed in Article 5.3(a)(ii ) was amended to read :
'(ii) the International Convention for the Safety of Life at Sea, 1974, as modified b y the Protocol of 1978 relating thereto, and as amended by Resolution s MSC .1(XLV), MSC.6(48) and MSC .13(57) adopted by the Maritime Safet y Committee of the International Maritime Organization on 20 November 1981 , 17 June 1983 and 11 April 1989, respectively, and as amended by Resolution 1 adopted on 9 November 1988 by the Conference of Contracting Government s to the International Convention for the Safety of Life at Sea, 1974 on the Global Maritime Distress and Safety System ; "
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these amendments were of an important character for the purpose of the prevention of oil pollution. However, the Assembly decided that it was premature to take a decision at the present session o n whether to include these amendments in the list of instruments contained in Article 5 .3(a) of the Fund Convention . In view of the importance of these Amendments, the Assembly expressed the hope tha t they would enter into force on 4 April 1993, pursuant to the tacit amendment procedure.
18 .3 The Assembly decided not to include the May 1991 Amendments to SOLAS 74 (Resolution MSC .22(59)), the November 1990 Amendments to MARPOL 73/78 (Resolution MEPC .42(30)) and the July 1991 Amendments to MARPOL 73/78 (Resolution MEPC .48(31)) in the list of instruments contained in Article 5.3(c) of the Fund Convention, because they were not considered relevant for th e purpose of Article 5 of the Convention .
19
Amendments to the Financial Re gulation s
The Assembly decided to increase the limit of authority of IOPC Fund officers other than th e Director for making payments of salaries, as proposed by the Director in document FUND/A .14/16. Accordingly . Financial Regulation 6 .2 was amended to read as follows :
"The Fund's bankers shall only be empowered to accept instructions on behalf of th e Fund if such instructions are signed by the Director and, in respect of payment instructions for any sum in excess of £14 000, countersigned by one other properl y authorized officer . The Director may empower another officer or other officers to sig n instructions to the Fund's bankers on his behalf only in respect of payment instruction s for any sum of less than £5 000 . For payment of salaries the Director may exceptionally, in circumstances where he is unable to sign, empower two other officer s to sign jointly instructions for any sum up to £25 000 . "
20
Amendments to the Staff_Rule s
The Assembly took note of the amendments to the Staff Rules which had been issued by the Director, as set out in document FUND/A .14/17 .
21
Conference on International Co-operation on Oil Pollution Pre p aredness and es ons e
21 .1 The Assembly took note of the information contained in document FUND/A .14/18 concerning the Conference on International Co-operation on Oil Pollution Preparedness and Response held i n
November 1990 .
21 .2 The Assembly noted with appreciation the contribution made by the Secretariat of the IOP C Fund in connection with the above-mentioned Conference .
21 .3 The Assembly expressed the view that an efficient international system of compensation was of great importance for ensuring rapid response and assistance between States, since such a syste m would make it easier to recover costs incurred for the assistance given .
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Draft International Convention on Liability and Com p ensation for Dama g e I Connection with the Carria g e of Dan g erous Goods by Se a
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-22 .2 The Assembly was of the opinion that it was important that the IOPC Fund should participat e in the on--going work of preparing the above-mentioned Convention so that the experience gained by the Fund in operating the system of liability and compensation for oil pollution damage would b e brought to the attention of the IMO Legal Committee and the Diplomatic Conference.
23
Date of Next Sessio n
The Assembly decided to hold is next ordinary session during the week 5 to 9 October 199 2 in London.
24
Any Other Business
Transfers within the 1991 Budget 24 .1
The Director introduced document FUND/A .14/21 . which dealt with transfers within the 199 1 Budget.
24 .2 The Assembly authorised the Director to transfer ;
(a) to Chapter II (General Services) up to £30 000 from other chapters to cover expenses connected with the expansion of the IOPC Fund's offices and the creation of two new posts ; and
(b) to Chapter V (Miscellaneous Expenses) from other chapters such amount as may be necessar y to cover the increase in the audit fee .
Supplementary Budget for 199 1
24 .3 The Assembly approved a supplementary budget appropriation of £10 000 for 1991 in respect of a session to be held by the Executive Committee in December 1991, as proposed by the Directo r in document FUND/A.14/22 .
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Adoption of the Re port of the 14th Sessio n
FUND/A.14/23
ANNEX I
DRAFT
PROTOCOL TO THE INTERNATIONAL CONVENTION ON CIVIL_ LIABILIT Y FOR OIL POLLUTION DAMAGE, 1969
THE PARTIES TO THE PRESENT PROTOCOL
HAVING CONSIDERED the International Convention on Civil Liability for Oil Pollution Damage, 1969 . and the 1984 Protocol thereto .
HAVING NOTED that the 1984 Protocol to that Convention, which provides for improved scope an d enhanced compensation, has not entered into force ,
AFFIRMING the importance of maintaining the viability of the international oil pollution liability and compensation system ,
AWARE OF the need to ensure the entry into force of the content of the 1984 Protocol as soon a s possible,
RECOGNISING that special provisions are necessary in connection with the introduction o f corresponding amendments to the International Convention on the Establishment of an Internationa l Fund for Compensation for Oil Pollution Damage, 1971 ,
HAVE AGREED as follows :
Article 1 - Article 1 1
Identical to the text of Article 1 to Article 11 of the 1984 Protocol to the Civil Liability Convention ." '
Article 1 2
Signature, ratification,
etc 1
This Protocol shall be open for signature at London from to by all States . 2-6
Identical to the text of Article 12.2 - 12 .6 of the 1984 Protocol to the Civil Liability Convention . 4 "
FUND/A.14/2 3 ANNEX I Page 2
Article 1 3 Entry into Force
1 This Protocol shall enter into force twelve months following the date on which ten State s including [four] [five] States each with not less than one million units of gross tanker tonnage hav e deposited instruments of ratification, acceptance, approval or accession with the Secretary-General of the Organization.
2-4
Identical to the text of Article 13 .2 - 13.4 of the 1984 Protocol to the Civil Liabilit y Convention .`*'
Article 14 to Article 1 8
Identical to the text of Article 14 to Article 18 of the 1984 Protocol to the Civil Liability Convention .`*'
DONE AT LONDON . this day of
IN WITNESS WHEREOF the undersigned . being duly authorized by their respective Governments fo r that purpose, have signed this Protocol .
<2>
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FUND/A .14/23
ANNEX I I
DRAFT
PROTOCOL TO THE INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF AN INTERNATIONAL FUND FOR COMPENSATION FOR OIL POLLUTION DAMAGE, 197 1
THE PARTIES TO THE PRESENT PROTOCOL ,
HAVING CONSIDERED the International Convention on the Establishment of an Intemational Fund fo r Compensation for Oil Pollution Damage, 1971 and the 1984 Protocol thereto ,
HAVING NOTED that the 1984 Protocol to that Convention, which provides for improved scope and enhanced compensation, has not entered into force ,
AFFIRMING the importance of maintaining the viability of the international oil pollution liability and compensation system ,
AWARE OF the need to ensure the entry into force of the content of the 1984 Protocol as soon a s possible .
RECOGNISING the advantage for the States Parties of arranging for the amended Convention t o coexist with and be supplementary to the original Convention for a transitional period ,
CONVINCED that the economic consequences of pollution damage resulting from the carriage of oi l in bulk at sea by ships should continue to be shared by the shipping industry and by the oil carg o interests ,
BEARING IN MIND the adoption of the Protocol of 19XX to amend the International Convention on Civi l Liability for Oil Pollution Damage . 1969 ,
HAVE AGREED as follows :
Article 1 to Article 2 7
Identical to the text of Article 1 to Article 27 of the 1984 Protocol to the Fund Convention ." '
Article 2 8
Signature, ratification,
etc 1
This Protocol shall be open for signature at London from to by an y State which has signed the 19XX Liability Convention .
FUND/A.14/2 3 ANNEX I I Page 2
2-7
Identical to the text of Article 28.2 - 28 .7 of the 1984 Protocol to the Fund Convention .
Article 29
Identical to the text of Article 29 of the 1984 Protocol to the Fund Convention .
Article 30
Entry into force
1
This Protocol shall enter into force twelve months following the date on which the followin g requirements are fulfilled :
(a) At least eight States have deposited instruments of ratification . acceptance. approval o r accession with the Secretary-General of the Organization : an d
(b) The Secretary-General of the Organization has received information in accordance wit h Article 29 that those persons who would be liable to contribute pursuant to Article 10 of th e 1971 Fund Convention as amended by this Protocol have received during the precedin g calendar year a total quantity of at least [500] [4501 [4001 million tons of contributing oil . 2-6
identical to the text of Article 30.2 - 30.6 of the 1984 Protocol to the Fund Convention . `21
Article 31 to Article 3 9
Identical to the text of Article 31 to Article 39 of the 1984 Protocol to the Fund Convention . *'
DONE AT LONDON, this day of
IN WITNESS WHEREOF the undersigned being duly authorized for that purpose have signed thi s Protocol .
<2>
FUND/A.14/23
ANNEX 11 1
DRAFT RESOLUTION I
relating to the need to avoid a situation in whic h two conflicting treaty regimes are operationa l
THE CONFERENCE ,
HAVING ADOPTED the Protocol of 19 . . . to amend the International Convention on Civil Liability for Oi l Pollution Damage, 1969 (the 1969 Civil Liability Convention) and the Protocol of 19 . . . to amend the International Convention on the Establishment of an International Fund for Compensation for Oi l Pollution Damage, 1971 (the 1971 Fund Convention) (hereinafter referred to as the "19 . . . Protocols") .
RECALLING the Protocols which were adopted in 1984 to amend the 1969 Civil Liability Convention an d 1971 Fund Convention (hereinafter referred to as the "1984 Protocols") .
NOTING that the 19. . . Protocols incorporate all the provisions of the 1984 Protocols with the exceptio n of the provisions on entry into force ,
HAVING AGREED that the 19. . . Protocols should constitute the amending instruments to the 1969 Civi l Liability Convention and the 1971 Fund Convention, in place of the 1984 Protocols which should n o longer be viable .
CONSIDERING that the entry into force of the 19. . . Protocols as well as the 1984 Protocols would creat e an undesirable situation in which two conflicting regimes would become operational .
CONVINCED that the 1969 Civil Liability Convention and the 1971 f =und Convention, as modified by th e
19 . .. Protocols, constitute an adequate international treaty regime on liability and compensation for oi l pollution damage,
SATISFIED that States which decide to participate in a modernised regime on compensation for oi l pollution damage need only to express their consent to be bound by the 19 .. . Protocols without also taking any action in respect of the 1984 Protocols.
DESIROUS of bringing the 19 . . . Protocols into force with minimum delay in order to bring the modernise d regime of compensation into operation as soon as possible ,
INVITES all States to give early and urgent consideration to the 19 . . . Protocols with a view to their acceptance thereof at an early date :
FUND/A.14/2 3 ANNEX III
Page 2
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APPEALS to all States which decide to participate in the modernised regime to ensure that they deposit instruments only in respect of the 19 . . . Protocols and without any references to the 1984 Protocols;
4
REQUESTS the Secretary-General of IMO to bring the terms of this resolution, and in particular the appeal in operative paragraph 3 above, to the attention of all States entitled to become Parties to the 19 . . . Protocols ;
S FURTHER REQUESTS the Secretary-General of IMO, in co-operation as necessary with the Director of the International Oil Pollution Compensation Fund (IOPC Fund), to provide al l possible advice and assistance to States considering becoming Party to the 19 . . . Protocols, in order to ensure that the action taken by the States shall be in accordance with the terms of this resolution ;
B AUTHORISES AND REQUESTS the Secretary-General, in his capacity as depositary of th e Protocols, to take all appropriate steps, in conformity with the law of treaties and the depositar y practice of IMO and the United Nations, to ensure that all instruments deposited by States afte r the adoption of the 19 . . . Protocols will facilitate the entry into force of only the 19 . . . Protocols , and will not also contribute to fulfil the conditions for the entry into force of the 1984 Protocols ;
7
INVITEStheSecretary-General of IMO to seek the views and guidance of the Legal Committee or the Council of IMO, as may be appropriate, in dealing with problems which may arise i n connection with the implementation of this resolution ; an d
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FUND/A.14/23
ANNEX I V
DRAFT RESOLUTION I I
in respect of certain treaty law issues relating to States which hav e already expressed their consent to be bound by the 1984 Protocols
THE CONFERENCE ,
HAVING ADOPTED the Protocol of 19 . . . to amend the International Convention on Civil Liability for Oi l Pollution
Damage,
1969 (the 1969 Civil Liability Convention), and the Protocol of 19 . . . to amend the International Convention on the Establishment of an International Fund for Compensation for Oi l Pollution Damage, 1971 (the 1971 Fund Convention) (hereinafter referred to as the "19 . . . Protocols") ,RECALLING the Protocols which were adopted in 1984 to amend the 1969 Civil Liability Convention and
the 1971 Fund Convention (hereinafter referred to as the "1984 Protocols") ,
NOTINGthat a number of States have already deposited instruments of ratification, acceptance, approval or accession in respect of the 1984 Protocols prior to the adoption of the 19 .. . Protocols ,
NOTING ALSO that the 1984 Protocols have not entered into force, and that it is unlikely that thei r
conditions for entry into force will be satisfied following the adoption of the 19 . . . Protocols to replace them ,
RECOGNISING, however, that there is the possibility in theory that the 1984 Protocols might enter int o force even after the entry into force of the 19 . . . Protocols ,
APPRECIATING that the States which have consented to be bound by the 1984 Protocols might fac e difficulties if they were to become Parties to the 19 . . . Protocols without being allowed to withdraw thei r consent to be bound by the 1984 Protocols,
CONSIDERING that it is advisable for the States which have consented to be bound by the 198 4
Protocols and which also wish to become Parties to the 19 . . . Protocols to take measures to avoid th e situation in which they might be obliged to apply two conflicting regimes on compensation ,
CONSIDERING ALSO that the most effective way for the States concerned to avoid bringing tw o conflicting treaty regimes into force is for such States to withdraw their consent to be bound by th e 1984 Protocols before or when expressing their consent to be bound by the 19 . . . Protocols ,
BEING OF THE VIEW that withdrawal of a consent to be bound by a treaty in such a situation would no t
contravene any rule of international treaty law ,
CONVINCED that action by the States to bring the 19 . . . Protocols into force will help to promote "th e
FUND/A.14/23 ANNEX IV Page 2
INVITES the States which have already expressed their consent to be bound by the 1984 Protocols and which wish to become Parties to the 19 . . . Protocols to consider formally withdrawing their consent in respect of the 1984 Protocols prior to or at the time of expressin g their consent to be bound by the 19. . . Protocols ;
2 REQUESTS the Secretary-General of the International Maritime Organization (IMO), as th e depositary of the 1984 Protocols and the 19 . .. Protocols, to bring the contents of this resolutio n to the attention of all States entitled to become Parties to the 1984 Protocols and the 19 . .. Protocols ;
3 FURTHER REQUESTS the Secretary-General of IMO to take all necessary and appropriate step s to advise and assist the States concerned which wish to take action in accordance with th e terms of this resolution ;
4 ALSO REQUESTS the Director of the International Oil Pollution Compensation Fund to exten d appropriate co-operation and assistance to the Secretary-General of IMO in the implementatio n of this resolution ;
FUND/A.14/2 3
ANNEX V
DRAFT PROVISION S
for insertion in Article 12 of the Fund Convention introducing a system setting a cap on contribution s
payable by oil receivers in any given Stat e
7 In the event that the total quantity of contributing oil received in all Contractin g States during a given calendar year is less than [750 million) tonnes, the aggregat e amount of the annual contributions payable by persons in respect of contributing oil received in a single Contracting State shall not exceed X% of the total amount o f annual contributions to the IOPC Fund pursuant to this Protocol in respect of that calendar year.
8 If in respect of a given calendar year during which the quantity of contributin g oil received in all Contracting States is less than [750 million) tonnes the applicatio n of the provisions in paragraphs 2 and 3 of this Article would result in the aggregate amount of the contributions payable by contributors in a single Contracting Stat e exceeding X% of the total annual contributions . the contributions payable by all contributors in that State shall be reduced pro rata so that their aggregate contribution s equal X% of the total annual contributions to the IOPC Fund in respect of that year . 9 If the contributions payable by persons in a given Contracting State shall b e reduced pursuant to paragraph 8 of this Article . the contributions payable by person s in all other Contracting States shall be increased pro rata so as to ensure that the tota l amount of contributions payable by all persons liable to contribute to the IOPC Fun d in respect of the calendar year in question will reach the total amount of contribution s decided by the Assembly .
FUND/A .14/23
ANNEX V I
IOPC FUND RESOLUTION N 0 8
Future Development of the Intergovernmental Oil Pollution Liability and Compensation .System based on the International Convention on Civil Liability for Oil Pollution Damage 1969 .
and the International Convention on the Establishment of a n International Fund for Compensation for Oil Pollution Damage 197 1
THE ASSEMBLY OF THE INTERNATIONAL OIL POLLUTION COMPENSATION FUN D
HAVING EXAMINED the functioning of the system of compensation established by the Internationa l Convention on Civil Liability for Oil Pollution Damage, done at Brussels on 29 November 196 9 (hereinafter referred to as the 1969 Civil Liability Convention), and the International Convention on th e Establishment of an International Fund for Compensation for Oil Pollution Damage, done at Brussel s on 19 December 1971 (hereinafter referred to as the 1971 Fund Convention), a system which ha s proved to be a viable regime for the rapid compensation of victims of oil pollution ,
RECALLINGthe Protocols which were adopted in 1984 to amend the 1969 Civil Liability Convention and the 1971 Fund Convention (hereinafter referred to as the 1984 Protocols) which provide for improve d scope and enhanced compensation ,
RECOGNISING that it is unlikely that the 1984 Protocols will enter into force in their present form ,
BEARING IN MIND that in adopting the International Convention on Oil Pollution Preparedness, Respons e and Cooperation 1990, the Conference on International Cooperation on Oil Pollution Preparedness an d Response recognised the importance of the international instruments on liability and compensation fo r oil pollution damage and the compelling need for the early entry into force of the 1984 Protocols thereto ,
BEING OF THE OPINION that it is necessary that the content of the 1984 Protocols enters into force a s soon as possible, so as to ensure the viability of this system in the future ,
CONSIDERING that the most practical way of achieving that result would be by adopting new protocol s to the 1969 Civil Liability Convention and the 1971 Fund Convention, containing the same substantive and administrative provisions, including those relating to limits of liability, as the 1984 Protocols bu t differing conditions for their entry into force ,
APPRECIATING that it might be appropriate also to examine in this connection whether a cap o n contributions payable by oil receivers in any given State should be introduced in the Fund Conventio n for a transitional period ,
CONVINCED of the necessity of limiting any revision of the Conventions to the issues set out above, i n order to ensure the early entry into force of any new instruments ,
REQUESTS the Secretary-General of the International Maritime Organization to convene an internationa l
conference, to be held if possible before the end of 1992, to consider :
(a) the draft protocols modifying the 1969 Civil Liability Convention and the 1971 Fund Conventio n which are attached to this resolution :
(b) the draft conference resolutions which are also attached to this resolution ; an d
