INTERNATIONA LOIL POLLUTIO NCOMPENSATIO NFUN D

ASSEMBLY14th sessionAgenda item 25

FUND/A.14/2311 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 Session

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 da

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 of

the Assembly:

Chairman:

Mr J Bredholt (Denmark )First Vice-Chairman :

Professor H Tanikawa (Japan)Second Vice-Chairman :

Mr A AI-Yagout (Kuwait)

FUNDIA.14/23

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3

Examination of Credentlsl s

The following Contracting States were present :

Algeria JapanBahamas KuwaitCameroon LiberiaCanada MonacoCate d'Ivoire NetherlandsCyprus NorwayDenmark PolandFiji Portuga lFinland SpainFrance Sri LankaGermany SwedenGhana Syrian Arab RepublicGreece Union of Soviet Socialist Republics

India United Arab EmiratesIndonesia United KingdomItaly

The Assembly took note of the information given by the Director that all Contracting Statesparticipating had submitted credentials which were in order .

The Assembly noted that Malta had deposited its instrument of accession to the Fun dConvention 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 cPeople's Republic of Korea, pursuant to a request presented during the present session of theAssembly.

The following non-Contracting States were represented as observers :

MattaBelgiumBrazi lChileChinaDemocratic People's Republic

of Korea

The following inter-governmental and international non-governmental organisations participatedas observers :

International Maritime Organization (IMO )United Nations Environment Programme (UNEP )Baltic and International Maritime Council (BIMCO )Cristal LtdInternational Chamber of Shipping (ICS)International Group of P & I ClubsInternational Tanker Owners Pollution Federation Ltd (ITOPF )Oil Companies International Marine Forum (OCIMF )

JamaicaMexicoMoroccoRepublic of KoreaSaudi ArabiaUnited States of Americ a

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4

Report _ot tho _Director

4.1

The Director introduced the report of the activities of the IOPC Fund since the 13th session of

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 sprovided 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

geport on Investments

5.1

The Assembly took note of the Director's report on investments contained in document

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 nconsultation with the External Auditor, and to submit a report on this issue to the Assembly at its 15t h

session.

6

external Auditor's Report on Financial_%stements for the Flnancial Period 1 Januaryto 31 December 1990

6.1 The Director introduced document FUND/A .14/4 containing the External Auditor's Report and

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.

6.2 The Assembly took note of the information given and noted with appreciation the External

Auditor's opinion contained in Annex III to document FUND/A.14/4. In addition, the Assembly note dwith satisfaction the amended format of the financial statements .

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6.3

The Assembly approved the accounts of the IOPC Fund for the financial period 1 January to31 December 1990 .

7

Begorl on Contribution s

The Assembly took note of the Director's report on contributions contained in documentsFUND/A.14/5 and FUND/A.14/5/Add .1 . It noted that only very small amounts of contributions wereoutstanding and expressed satisfaction with the situation regarding the payment of contributions.

8

Reports of the Executive Committee on its 25th, 26th .27th and 28th Sesslo

8.1 The Chairman of the Executive Committee. Mr W W Sturms (Netherlands), informed th eAssembly of the work of the Committee during its 25th, 26th, 27th and 28th sessions and reported t othe 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 theExecutive 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 dto the Executive Committee, in accordance with the wish expressed by the Assembly at its 13t hsession .

8.4 In the light of the experience gained from certain recent incidents of major importance, theAssembly discussed whether it would be useful for the IOPC Fund to carry out its own independentinvestigations into the cause of incidents so as to enable the Fund to form an opinion at an earlystage as to whether an incident was due to the fault or privity of the shipowner or whether there wereany grounds for taking recourse action against third parties . The Assembly instructed the Director tomake 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 eof an incident should not be allowed to detract from the main purpose for which the IOPC Fund was

established, le the rapid settlement of claims.

8.6 In the context of the consideration of the reports of the Executive Committee, the Indonesia n

delegation stated that it was not in favour of the IOPC Fund accepting claims relating to damage to

the marine environment arising out of the HAVEN incident (document FUND/EXC .28/9, paragraphs3.5.10 - 3.5.13) to the extent that such claims are at variance with the principles laid down i n

Resolution N03 adopted by the Assembly in 1980. This delegation pointed out that in the EL HAN I

incident which occurred in Indonesia in 1987, the Indonesian Government approached the Directo rconcerning the possibility of claiming compensation for damage to the marine environment . It was then

informed of the principles laid down in that Resolution and decided therefore not to submit any clai min this respect .

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9

Elect on of Members of the Executh►e Eo

ee

The Assembly elected the following Contracting States as members of the Executive Committee :

Elected underArticle 22.2(a) ofthe Fund Convention

AlgeriaGhanaIndiaIndonesiaKuwaitLiberiaSri LankaUnion 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 the

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 the

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 tof 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 underArticle 22 .2(b) ofthe Fund Convention

FranceGermanyGreeceItalyJapanNorwayUnited Kingdom

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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 ewould 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 postof 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 ; and

(c) promotion of the Clerk-Secretary . Miss D Grace, to Principal Clerk-Secretary . atgrade 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 don 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 lof IMO and the Director in respect of additional office space which had been made available to theIOPC 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 Assemblyinstructed 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 viewof the Assembly, the new lease should be for a period of ten years . The Assembly emphasised thatthe 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 1992

14 .1

The Assembly adopted the budget appropriations for 1992 as proposed by the Director in th e

Annex to document FUND/A .14/11, with a total expenditure of £648 100 .

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FUND/A.14/23

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 lowestpossible 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 anincrease of the working capital of the IOPC Fund from £4 million to £B million . The Assembly agreedwith the Director that the IOPC Fund should have a working capital at a sufficient level so as to enabl eit to make rapid payments of compensation to victims of oil pollution . It also agreed with the Directorthat It would not be appropriate for the IOPC Fund to rely on the possibility of raising money by wa yof 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 workingcapital .

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 ra further increase of the working capital would be required .

IsAssessment of Annual Contributlons

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 leviesdecided by the Assembly would correspond to a contribution per tonne of contributing oil o fapproximately £0 .0053305 for the General Fund, £0 .0074033 in respect of the RIO ORINOCO MajorClaims 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 YMARIA Major Claims Fund until it can be established whether there will be any surplus on th eTHUNTANK 5 Major Claims Fund, and, if so, the amount of that surplus, for the reasons set out i nparagraph 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 dwould in the future be holding significant sums of money, he would be entitled to make investment sin excess of £2 million, which under Financial Regulation 7 .1 {c} should normally be the maximuminvestment in any one bank, building society or discount house .

17

Future Development of the Intergovernmental Oil Pollution Llabliity and CompensationSystem 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 lWorking Group with the following mandate :

"To consider the future development of the intergovernmental oil pollution liability an dcompensation system by :

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(a) examining the prospects for the entry into force of the 1984 Protocols to theCivil Liability Convention and the Fund Convention ;

(b) considering whether it would be possible to facilitate the entry into force of th econtent of the 1984 Protocols possibly by amending their entry into forceprovisions ;

(c) considering which substantive provisions in the existing Conventions and the1984 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 3and 14 March 1991, and the second on 17 June 1991, under the chairmanship of Mr A H E Popp(Canada) . It also took note of the fact that the Working Group's considerations were based onextensive 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 containedin 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 establishedby the 1969 Civil Liability Convention and the 1971 Fund Convention, which they considered to beworking remarkably well . For this reason, a number of delegations stressed the importance that the1984 Protocols to these Conventions should enter into force as soon as possible, so as to ensure th eviability of this system in the future . In the view of these delegations the best way of facilitating theentry into force of the 1984 Protocols to these Conventions would be to amend their entry into forc eprovisions .

17.5 One delegation expressed the view that the fact that the 1984 Protocol to the Civil Liabilit yConvention had not come into force was not due to the requirements for its entry into force, but wasthe result of the non entry into force of the 1984 Protocol to the Fund Convention. This delegationconsidered that once it could be anticipated that the 1984 Protocol to the Fund Convention woul denter into force, the 1984 Protocol to the Civil Liability Convention would also come into force withoutdifficulty . It was stressed that it would be undesirable for the Protocol to the Civil Liability Conventio nto enter into force before the Protocol to the Fund Convention . This delegation also expressed itsconcern as to the difficulties that would arise if two sets of instruments . viz the 1984 Protocols and anynew instruments, were to be in force simultaneously . For this reason this delegation reserved it sposition 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 eAssembly drew the following conclusions :

(a) The entry into force conditions of the 1984 Protocol to the Civil Liability Convention should b eamended so as to reduce the requirement as to the number of States each with not less tha none 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 eamended so as to reduce the quantity of contributing oil required for the entry into force from600 million tonnes : most delegations expressed preference for 400 million tonnes .

(c) It would not be appropriate to amend the conditions laid down in Article 6.4 of the 1984Protocol to the Fund Convention for the increase from 135 million SDR to 200 million SDR ofthe total amount of compensation payable by the IOPC Fund in respect of any one incident ,even if the quantity of contributing oil required for the entry into force of the Protocol were t obe reduced .

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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 Convention

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 ofcontributing 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 LiabilityConvention 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 forceprovisions 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 theWorking Group, one concerning the need to avoid a situation in which two conflicting treaty regime swould be operational (document FUND/A.14/14/Add.1) and the other concerning treaty law issuesrelating 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 hasratified the 1984 Protocols wanted to withdraw these ratifications .

17.10 After considering the issues dealt with in these documents, the Assembly expressed its genera lagreement with the conclusions drawn by the Director and with the texts of the draft resolution scontained therein, which are reproduced in Annexes III and IV to the present report .

Contribution System

17.11 On the basis of a proposal by the delegation of Japan, the Assembly discussed whether thereshould be introduced in the Fund Convention a "cap" on contributions payable by oil receivers in anygiven State .

17.12 The Japanese delegation emphasised that the Japanese contributors paid a large part of thetotal contributions to the IOPC Fund . This delegation drew the Assembly's attention to the fact thatthe Japanese contributors' share of the annual contributions for 1980 (the IOPC Fund's second yearof operation) was 44% and that their share represented 27% of the 1990 annual contributions . It waspointed out that the high percentage was partly due to the fact that large quantities of imported oilwere 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 bedifficult for the Japanese Government to ratify the 1984 Protocol to the Fund Convention unles sguarantees could be given that the Japanese oil industry would not be excessively burdened by alarge share of the total contributions levied under the Protocol. A solution could be to revise th econtribution system so as to include a cap on the contributions payable in respect of a single Member

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 transitionalmeasure until the aggregate quantity of contributing oil received in all Member States reached a certainlevel . Without such a capping system, the Japanese Government might lose the possibility of ratifyin gthe 1984 Protocols at an early stage. The Japanese delegation pointed out that a capping systemwould only cover the contributions payable under the 1984 Protocol and would not affect the obligatio n

to pay contributions under the 1971 Fund Convention .

17.13 A number of delegations indicated that they were opposed, in principle, to any system settin g

a cap on contributions payable by oil receivers in a single Member State . The reason for this positio nwas that contributions were not levied on Member States but on individual contributors in these States .These delegations pointed out that the present contribution system was based on the idea that every

FUND/A.14/23

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contributor should pay the same amount per tonne of contributing oil received . They expressed the

view that a capping system would introduce an element of discrimination . since contributors in Member

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 taken

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 the

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 to

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 : and

(c) whether there should be introduced in the Fund Convention a system setting a cap on

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 dthe Fund Convention to the issues set out above, in order to ensure the early entry into force of an ynew 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 FundConvention, 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 ythe Protocol of 1978 relating thereto, and as amended by Resolution sMSC.1(XLV), MSC.6(48) and MSC .13(57) adopted by the Maritime SafetyCommittee of the International Maritime Organization on 20 November 1981 ,17 June 1983 and 11 April 1989, respectively, and as amended by Resolution 1adopted on 9 November 1988 by the Conference of Contracting Government sto the International Convention for the Safety of Life at Sea, 1974 on the Global

Maritime Distress and Safety System ; "

18.2 As regards the Amendments to MARPOL 73/78 adopted in July 1991 by the Marine

Environment Protection Committee of IMO by Resolution MEPC .47(31), the Assembly considered that

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FUND/A.14/23

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 Regulations

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 eFund 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 mayexceptionally, in circumstances where he is unable to sign, empower two other officer sto sign jointly instructions for any sum up to £25 000 . "

20

Amendments to the Staff_Rules

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 paredness andes onse

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 CFund 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 system

would make it easier to recover costs incurred for the assistance given .

22

Draft International Convention on Liability and Compensation for Damage IConnection with the Carriage of Dangerous Goods by Sea

22.1 The Assembly took note of the information contained in document FUND/A.14/19 concerning

the draft Convention on Liability and Compensation for Damage in Connection with the Carriage o f

Dangerous Goods by Sea .

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22.2 The Assembly was of the opinion that it was important that the IOPC Fund should participat ein the on--going work of preparing the above-mentioned Convention so that the experience gained bythe Fund in operating the system of liability and compensation for oil pollution damage would b ebrought to the attention of the IMO Legal Committee and the Diplomatic Conference.

23

Date of Next Session

The Assembly decided to hold is next ordinary session during the week 5 to 9 October 1992

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 necessary

to cover the increase in the audit fee .

Supplementary Budget for 1991

24.3 The Assembly approved a supplementary budget appropriation of £10 000 for 1991 in respectof a session to be held by the Executive Committee in December 1991, as proposed by the Directo rin document FUND/A.14/22 .

25

Adoption of the Report of the 14th Session

The draft report, as contained in document FUND/A.14/WP.3, was adopted, subject to someamendments.

FUND/A.14/23

ANNEX I

DRAFT

PROTOCOL TO THE INTERNATIONAL CONVENTION ON CIVIL_ LIABILIT YFOR 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 denhanced compensation, has not entered into force ,

AFFIRMING the importance of maintaining the viability of the international oil pollution liability andcompensation system ,

AWARE OF the need to ensure the entry into force of the content of the 1984 Protocol as soon aspossible,

RECOGNISING that special provisions are necessary in connection with the introduction o fcorresponding amendments to the International Convention on the Establishment of an Internationa lFund 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 LiabilityConvention . 4"

<1> The references to "1984" in the 1984 Protocol to the Civil Liability Convention should be replaced by references to"19X0(" in Article XII ter, Article 11 .2 . Article 12 .4. Article 13 .2 . Article 14.1 and 14 .2. Article 15.5. Article 16 .5 an dArticle 17 .2 (a)(ii) and in the certificate annexed to that Protocol .

FUND/A.14/23ANNEX IPage 2

Article 1 3

Entry into Force

1 This Protocol shall enter into force twelve months following the date on which ten State sincluding [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 rthat purpose, have signed this Protocol .

<2>

See note <1 > on previous page.

J

FUND/A .14/23

ANNEX I I

DRAFT

PROTOCOL TO THE INTERNATIONAL CONVENTION ON THE ESTABLISHMENT OF ANINTERNATIONAL 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 aspossible .

RECOGNISING the advantage for the States Parties of arranging for the amended Convention t ocoexist 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 27

Identical to the text of Article 1 to Article 27 of the 1984 Protocol to the Fund Convention."'

Article 28

Signature, ratification, etc

1

This Protocol shall be open for signature at London from to by any

State which has signed the 19XX Liability Convention .

<1> The references to "1984" in the 1984 Protocol to the Fund Convention should be replaced by references to "19X0( '

In Article 2.1 . 2.3 . 2.4 . 2 .5 and 2 .6. Article 3. Article 6.1 . 6.2 . 6 .3 and 6 .5. Article 9 .1, Article 10, Article 11 .1, Article

36 bis . Article 36 quater, Article 27, Article 28.4 . Article 30 .2 and 30 .6 . Article 33 .5 and Article 34.4.

FUND/A.14/23ANNEX I IPage 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 following

requirements are fulfilled :

(a) At least eight States have deposited instruments of ratification . acceptance. approval or

accession with the Secretary-General of the Organization : and

(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 the1971 Fund Convention as amended by this Protocol have received during the precedin gcalendar 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 39

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 sProtocol .

<2>

See note <1> on previous page .

FUND/A.14/23

ANNEX 11 1

DRAFT RESOLUTION I

relating to the need to avoid a situation in whichtwo 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 d1971 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 nof 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 create

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 the

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 :

2 URGES all States which decide to participate in the modernised regime of compensation t odeposit the appropriate instruments with the Secretary-General of the International Maritim e

Organization (IMO) as soon as possible :

FUND/A.14/23ANNEX IIIPage 2

3

APPEALS to all States which decide to participate in the modernised regime to ensure thatthey deposit instruments only in respect of the 19 . . . Protocols and without any references tothe 1984 Protocols;

4

REQUESTS the Secretary-General of IMO to bring the terms of this resolution, and in particularthe appeal in operative paragraph 3 above, to the attention of all States entitled to becomeParties to the 19. . . Protocols ;

S FURTHER REQUESTS the Secretary-General of IMO, in co-operation as necessary with theDirector of the International Oil Pollution Compensation Fund (IOPC Fund), to provide al lpossible advice and assistance to States considering becoming Party to the 19 . . . Protocols, inorder to ensure that the action taken by the States shall be in accordance with the terms ofthis resolution ;

B AUTHORISES AND REQUESTS the Secretary-General, in his capacity as depositary of th eProtocols, to take all appropriate steps, in conformity with the law of treaties and the depositar ypractice of IMO and the United Nations, to ensure that all instruments deposited by States afte rthe 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

INVITES the Secretary-General of IMO to seek the views and guidance of the Legal Committeeor the Council of IMO, as may be appropriate, in dealing with problems which may arise i nconnection with the implementation of this resolution ; and

8

REQUESTS the Secretary-General of IMO to seek the views and co-operation of the Directo rof the IOPC Fund in connection with the implementation of this resolution .

FUND/A.14/23

ANNEX I V

DRAFT RESOLUTION I I

in respect of certain treaty law issues relating to States which havealready 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 lPollution Damage, 1969 (the 1969 Civil Liability Convention), and the Protocol of 19 . . . to amend theInternational 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 andthe 1971 Fund Convention (hereinafter referred to as the "1984 Protocols") ,

NOTING that 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 into

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 face

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 1984

Protocols and which also wish to become Parties to the 19 . . . Protocols to take measures to avoid the

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 oconflicting 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 eobject and purpose" for which the 1984 Protocols were originally adopted .

FUND/A.14/23ANNEX IVPage 2

INVITES the States which have already expressed their consent to be bound by the 1984Protocols and which wish to become Parties to the 19 . . . Protocols to consider formallywithdrawing their consent in respect of the 1984 Protocols prior to or at the time of expressin gtheir consent to be bound by the 19. . . Protocols ;

2 REQUESTS the Secretary-General of the International Maritime Organization (IMO), as th edepositary of the 1984 Protocols and the 19 . .. Protocols, to bring the contents of this resolutio nto 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 sto advise and assist the States concerned which wish to take action in accordance with th eterms of this resolution ;

4 ALSO REQUESTS the Director of the International Oil Pollution Compensation Fund to exten dappropriate co-operation and assistance to the Secretary-General of IMO in the implementatio nof this resolution ;

5 INVITES the Secretary-General of IMO to consult with and seek the views and guidance of theLegal Committee or the Council of IMO in dealing with problems which may arise in connectio nwith the implementation of this resolution .

FUND/A.14/23

ANNEX V

DRAFT PROVISION S

for insertion in Article 12 of the Fund Conventionintroducing a system setting a cap on contribution s

payable by oil receivers in any given State

7 In the event that the total quantity of contributing oil received in all Contractin gStates during a given calendar year is less than [750 million) tonnes, the aggregat eamount of the annual contributions payable by persons in respect of contributing oilreceived in a single Contracting State shall not exceed X% of the total amount o fannual contributions to the IOPC Fund pursuant to this Protocol in respect of thatcalendar year.

8 If in respect of a given calendar year during which the quantity of contributin goil received in all Contracting States is less than [750 million) tonnes the applicatio nof the provisions in paragraphs 2 and 3 of this Article would result in the aggregateamount of the contributions payable by contributors in a single Contracting Stat eexceeding X% of the total annual contributions . the contributions payable by allcontributors in that State shall be reduced pro rata so that their aggregate contribution sequal 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 ereduced pursuant to paragraph 8 of this Article . the contributions payable by personsin all other Contracting States shall be increased pro rata so as to ensure that the tota lamount of contributions payable by all persons liable to contribute to the IOPC Fun din respect of the calendar year in question will reach the total amount of contributionsdecided by the Assembly .

f * «

FUND/A .14/23

ANNEX V I

IOPC FUND RESOLUTION N 0 8

Future Development of the Intergovernmental Oil Pollution Liability and Compensation .Systembased on the International Convention on Civil Liability for Oil Pollution Damage 1969 .

and the International Convention on the Establishment of a nInternational 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 lConvention on Civil Liability for Oil Pollution Damage, done at Brussels on 29 November 1969(hereinafter referred to as the 1969 Civil Liability Convention), and the International Convention on th eEstablishment of an International Fund for Compensation for Oil Pollution Damage, done at Brussel son 19 December 1971 (hereinafter referred to as the 1971 Fund Convention), a system which ha sproved to be a viable regime for the rapid compensation of victims of oil pollution ,

RECALLING the Protocols which were adopted in 1984 to amend the 1969 Civil Liability Convention andthe 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 eand Cooperation 1990, the Conference on International Cooperation on Oil Pollution Preparedness an dResponse recognised the importance of the international instruments on liability and compensation fo roil pollution damage and the compelling need for the early entry into force of the 1984 Protocolsthereto ,

BEING OF THE OPINION that it is necessary that the content of the 1984 Protocols enters into force a ssoon 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 sto the 1969 Civil Liability Convention and the 1971 Fund Convention, containing the same substantiveand administrative provisions, including those relating to limits of liability, as the 1984 Protocols bu tdiffering conditions for their entry into force ,

APPRECIATING that it might be appropriate also to examine in this connection whether a cap oncontributions payable by oil receivers in any given State should be introduced in the Fund Conventionfor a transitional period ,

CONVINCED of the necessity of limiting any revision of the Conventions to the issues set out above, i norder to ensure the early entry into force of any new instruments ,

REQUESTS the Secretary-General of the International Maritime Organization to convene an internationa lconference, 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 nwhich are attached to this resolution :

(b) the draft conference resolutions which are also attached to this resolution; and

(c) whether there should be introduced in the Fund Convention a system of setting a cap o ncontributions payable by oil receivers in any given State for a transitional period.