CMI Conference Report October 2008

• Author: Stuart Hetherington
• Position: November 2008
• Pages: 111-115

(2009) 23 A&NZ Mar LJ

CMI CONFERENCE REPORT

Stuart Hetherington∗

The four yearly CMI Conference took place in Athens in October 2008. It was attended by Fraser Hunt, Andrew

Tulloch, Paul Myburgh and the writer. As is customary at CMI conferences, some of the sessions involved

drafting documentation. They were the Places of Refuge and Procedural Rules Relating to Limitation of Liability

sessions to which further reference will be made.

The Places of Refuge sessions considered a draft Instrument which has been in the course of preparation by the

International Working Group and two meetings of the International Sub-committee of CMI in recent years. CMI

first became involved in this project when, following the difficulties experienced by the "Castor" in 2001 the

IMO Legal Committee invited CMI to assist it. Questionnaires were sent to national Maritime Law Associations.

Although the IMO Legal Committee lost interest in taking the matter any further in 2005, CMI decided to

complete the task upon which it had embarked in seeking to produce a document which had some teeth and was

not merely representative of soft law, such as the Guidelines which the IMO had promulgated.

At the Athens Conference, panel presentations were made by the principal stakeholders including the

International Group of P&I Clubs (Andrew Bardot), the International Salvage Union (Archie Bishop), the

International Association of Ports and Harbours (Franz Van Zolan), and the International Union of Marine

Insurers (Fritz Stabinger). In addition, the former President of the USMLA, Liz Burrell, explained recent

documentation issued by the Coastguard in the United States and Eric Van Hooydonk explained the current

status of EU legislation in relation to the "Erika" package.

The Draft Instrument applies what has been described as a rebuttable presumption that Port Authorities and

States will allow vessels to enter a Place of Refuge unless the authorities having conducted a detailed assessment

can establish that more harm is likely to be done than good if the vessel is allowed in. A controversial issue

during the discussions at the conference related to the role that any security required from the ship owner by the

Port Authority or State was to apply in the decision making process. The question was whether a Port Authority

or State could be said to be acting reasonably in refusing access because no security is provided by a shipowner.

In the event the draft text which was approved at the Plenary session of the conference and at the Assembly has

introduced three optional provisions. One extreme position adopted by one of the options is to provide that

refusal of a Port of Refuge cannot be justified because no security is available from the shipowner. The other

extreme position contained in a further option is to provide that the absence of security can justify refusal to

grant a Place of Refuge; and the compromise option position is that although an assessment can have regard to

the existence or otherwise of security, it cannot relieve an authority from carrying out an assessment and the

absence of any security does not by itself justify a refusal to grant a Place of Refuge.

The other controversial provision, also related to questions of security, concerned the amount of any security that

can be requested. Again, the text which was approved at the conference adopted three options. One option is to

limit the amount of guarantee which can be requested to the ship's entitlement to limit liability under the 1976

Limitation Convention (as amended) from time to time. Another option is to permit the Port Authority or State to

seek security up to any reasonable amount which it considers appropriate in the light of the assessment which it

has carried out. The compromise option in relation to this issue is to permit the security to be requested up to the

1976 Limitation amount (as amended) and also any further reasonable amount which the Port Authority or State

considers appropriate to take into account the likelihood of wreck removal expenses being incurred in

circumstances in which States have removed such claims from the ambit of the 1976 Limitation Convention

when giving effect to that Convention under their National law.

Subject to those matters, the draft that was prepared in advance of the CMI Conference was largely left intact by

delegates at the conference. The content of the Draft Instrument will be available on the CMI website in the near

future. It contains recital provisions, definitions, immunity from liability for a Port Authority or State where

access is granted, the creation of liability in the Port Authority or State where access is unreasonably refused, the

meaning of reasonable conduct (in the context of considering whether a Port Authority or State has acted

∗ November 2008

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