International Law News Archives

MMLA President at UNCITRAL Working Group VI first meeting held in New York on the International Recognition of Judicial Sales

May 31, 2019 Leave a Comment

Between the 13^th and 17^th of May 2019, President of the MMLA, Dr Ann Fenech was at the first meeting of UNCITRAL Working Group VI which has been tasked with considering the draft convention presented by CMI on the International Recognition of Judicial Sale of Ships.

Dr. Fenech participated in this meeting at UNCITRAL in her capacity of Vice President of CMI and as CMI co-ordinator for the project at UNICTRAL.

This was the first meeting of the Working Group VI attended by States members of UNICTRAL during which Dr. Beata Czerwenka was appointed Chairman of Working Group VI.

During this first meeting lasting an entire week, the Swiss Delegate Prof. Alex von Zeigler, a member of the Executive Council of CMI, presented the project since it was on the proposal of Switzerland last July 2018 that the 51 Assembly of UNICTRAL accepted to take on this work as part of its programme.

As CMI co-ordinator for the project Dr. Fenech was tasked with giving a preliminary explanation of each proposed article to the convention. There was agreement on the usefulness of the CMI draft to be used as the basis for any future work. The entire week was taken up with the explanations and answering of questions raised by all the delegations present. It was concluded at this first meeting that the UNCITRAL secretariat will now work on another draft taking into account the various ideas expressed and that the next draft will be the subject matter of the next Working Group VI meeting in Vienna in November of this year.

Dr Ann Fenech elected CMI Vice President

December 5, 2018 2 Comments

The Malta Maritime Law Association is delighted to announce that Dr Ann Fenech, President of the Malta Maritime Law Association and Managing Partner of Fenech & Fenech Advocates was last Friday (9 November 2018) elected Vice President of the Comité Maritime International (CMI) by the General Assembly of the CMI at the IMO in London.

The CMI is an international body established in Antwerp in 1891 with the aim of unifying International Maritime Law. It has been responsible of drafting some of the most important international maritime conventions including the Arrest Conventions of 1952 and 1999, the Collision Regulations and the Salvage Convention.

Dr Fenech was suggested for nomination for this position by Ireland and Sweden. She was voted in by the members of CMI who are the national maritime law associations of 51 different countries. She is the first Maltese to be elected to the position of Vice President within the CMI.

The CMI is currently working on a number of important projects including Automation and the International Recognition of Judicial Sales. Dr Fenech was heavily involved in recent efforts in persuading UNCITRAL (the United Nations Committee on International Trade Law) to accept the proposal of the Government of Switzerland to commence work on an International Convention on the International Recognition of Judicial Sales. UNICITRAL has in fact added this project to its working agenda.

Dr Fenech’s election as Vice President of the CMI is considered as a very valuable addition to the profile of Maritime Malta world wide. It will mean that Maritime Malta will also be represented at the highest levels of international maritime law. Ann Fenech has been practicing maritime law exclusively since 1986.

Future of ship recycling in the European Union

December 4, 2018 Leave a Comment

The EU Regulation on Ship Recycling (1257/2013) – which, with respect to new vessels, will enter into full effect on 31 December 2018 – obliges EU-flagged vessels to conduct dismantling operations in European Commission-approved ship-recycling facilities in accordance with:

the Ship-Specific Ship-Recycling Plan (SSSRP); and
the Inventory of Hazardous Materials.

Before any recycling of the ship, the SSSRP is set to be developed by the operator of the ship-recycling facility in accordance with the provisions of the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009.

Ship owners must furnish all ship-relevant information necessary for the development of the SSSRP, including the Inventory of Hazardous Materials which identifies harmful materials contained in the structure or equipment of the ship, their location and approximate quantities. Each new ship must have such inventory onboard to comply with all relevant International Maritime Organisation Guidelines and provide evidence that the ship complies with the restrictions or prohibitions of hazardous materials.

Surveys
Pursuant to the EU Regulation on Ship Recycling, ships will be subject to several surveys undertaken by a recognised organisation and conducted as follows:

initial survey;
renewal survey;
additional survey; and
final survey.

An inventory certificate (supplemented by the Inventory of Hazardous Materials) will be issued following the successful completion of either the initial or renewal survey. The initial survey of a new ship will be conducted before the ship is put into service, while for existing ships the initial survey will be conducted by 31 December 2020. The surveys will verify that the ship-recycling plan and Inventory of Hazardous Materials complies with the regulation.

When a ship is to be taken out of service or recycled, a final survey will be conducted. Following the successful completion of the final survey, a ready-forrecycling certificate will be issued by the appointed recognised organisation. The certificate will be supplemented by the Inventory of Hazardous Materials and the SSSRP.

If the particulars and condition of the ship are not adequately reflected in the inventory certificate, the operator of the ship-recycling facility may decline to accept the ship for recycling. Further, owners of end-of-life ships destined for recycling are required to minimise the amount of cargo and shipg-enerated waste remaining onboard.

Ships flying third-country flags
The regulation also provides for ships flying the flag of a third country calling at a port or anchorage of a member state. It requires such ships to have onboard an Inventory of Hazardous Materials in compliance with the regulation in the same manner as a member state-flagged ship. Following arrival in a member state, a statement of compliance together with the inventory is to be submitted to the authorities on request and may be detained, dismissed or excluded from ports in the event that it fails to submit the same on request by port authorities.

Comment
Pursuant to the above measures, the regulation aims to mitigate and eventually eliminate the adverse effects of operating, maintaining and recycling EU-flagged ships on human health and the environment.

by Lara Saguna Axiaq and Peter Grima, members of the MMLA and maritime lawyers within the Ship Registration & Finance Department of Fenech & Fenech Advocates

Source: ILO

MMLA President Ann Fenech appointed Honorary Member of the Croatian Maritime Law Association

November 2, 2018 Leave a Comment

Dr. Ann Fenech, President of our association was appointed Honorary Member of the Croatian Maritime Law Association, during the 2^nd International Scientific Conference on Maritime Law held in Split on the 28^th of September.

Dr. Fenech had been invited to the Conference to deliver a Key Note address on “The International Recognition of Judicial Sales – the way forward.”

She was awarded the Honorary Membership by the President of the Croatian Maritime Law Association, Gordon Stankovic who stated that this honour was being conferred on Dr. Fenech for the work that she has embarked on over the past few years as an Executive Council Member of the CMI. Other recipients of this award include Giorgio Berlingieri, Patrick Griggs and Prof. Rhidian Thomas.

Regulating autonomous ships

September 19, 2018 Leave a Comment

What are the challenges of autonomous navigation on board masterless vessels?

Challenges, whether legislative, sociological or technological, form part of our daily work routine. Contrary to previous decades, innovative models do not require years or even months to cross an ocean. Evolution tends to spread very fast, more so nowadays when millennials are rapidly engaging themselves in managerial roles largely concerned with quick and effective product placement.

The recent emergence of blockchain technologies, the steady infiltration of cryptocurrencies in our lives and the recently introduced GDPR rules have proved that shipping, like any other sector involved in the carriage of persons and goods, is also not immune to such novelties.

Unmanned technology is also gaining particular momentum within the shipping industry. The aim of such technology is clearly that of supporting the ship operator, cargo owner and ultimate consumer by reducing human-derived risks and operational costs connected with the carriage of goods by sea. However, when it comes to ships and navigation one must keep in mind that the lawmaker often ranks the protection of seafarers and of the sea environment at the top of its priorities, ahead of such strictly navigational or commercial aspects which also arise from the use of autonomous ships. It will be interesting to see how these two differing interests can and should coexist next to each other.

Use of driverless means of transport has become common across various sectors of public transportation. Many capital cities have adopted driverless metro systems for years now. The same is happening with respect to the private transportation by car, although the latter is still going through (an advanced) testing phase.

The difference between such means of transport lies mainly on the number of variables that these come across throughout their operation. As metros operate on a one-direction line, collisions can be easily reduced through a number of mechanical and electronic precautions. On the other hand, during their journey, cars come across other cars, buses, trucks, pedestrians, animals and different meteorological events, and so cannot make a linear journey.

What does autonomy mean with particular reference to ships? The International Maritime Organisation has identified four different types of vessel autonomy.

The first are ships with automated processes and decision support where seafarers operate and control systems and functions directly from the vessel and only some operations may be automated. The second are remotely controlled ships where seafarers are on board the vessel although the ship is controlled and operated from another location. The third are remotely controlled ships without seafarers on board where the vessel is controlled and operated from another location with no seafarers on board. Finally, the fourth are fully autonomous ships where the operation is performed automatically by the vessel’s operating system.

Trials on autonomous ships have already commenced in Norway and Finland. Denmark has also taken steps to regulate this particular aspect of navigation; with the first autonomous ship to be used for subsea positioning, surveying and environmental monitoring currently registered under the British flag. The European Union has also invested in research projects such as the EU’s FP7 project (Maritime Unmanned Navigation through Intelligence in Networks).

The introduction of automation, as happened in other industries, would produce an immediate and tangible effect on the workforce on board ships and port operators engaged in the loading and offloading of cargo. On the other hand this would be beneficial for IT developers involved in the creation of software meant to govern navigation and protecting same from the risk of cyber-attacks. Automation might be welcomed by insurers, and a bit less by ship litigators, since with respect to the cargo loading and unloading procedures it will reduce the amount of mistakes deriving from human error.

However, one of the main obstacles faced by autonomous ships lies in the current legal framework within which their manned counterparts operate. In fact most – if not all – maritime conventions (and charter parties) assume that vessels operate with crew on board – this is the case, for example, of the Maritime Labour Convention or the International Convention on Standards of Training, Certification and Watch keeping for Seafarers – a requirement an autonomous ship would unlikely be able to satisfy.

Another challenging aspect concerning autonomous ships revolves around the implementation of the International Regulations for Preventing Collisions at Sea (COLREGS) in particular when these will be navigating alongside manned ships. The COLREGS often contain provisions referring to the human element; referring for example to “the ordinary practice of seamen” test, that is, what a reasonably competent mariner should do in a given situation (similarly to the bonus paterfamilias test used in civil law).

Automation would require practitioners to start considering accidents which might arise, for example, when an operator makes a poor decision in reliance on wrong information provided by the vessels’ sensors due to a technical failure. Such instances are bound to raise further questions on the apportionment of liability between the operator, manufacturer or software developer and ship-owner.

Moreover, within a shipping ambit different types and degrees of liability already coexist next to each other: that of the ship-owner (or the bareboat charterer) for crew’s actions (i.e. COLREGS); or that of the registered owner (i.e. pollution at sea conventions) while other forms of liability make the ship liable in its own right (e.g. maritime liens).

Apportionment of liability between the ship-owner, software developer and manufacturer is an aspect not to be underestimated even in such a context. How would an autonomous ship be expected to intervene in case should it encounter, throughout her route, another ship in distress? Also, where would responsibility lie in the case of environmental damage? Will the ship-owner be held accountable or will responsibility for the ensuing damage lie on the software provider, for example, for not having developed a sound algorithm or on the vessel’s sensors’ manufacturer for their technical failure?

Legal clarity around cyber liability and collision regulations is fundamental if autonomous ships want to sail free on our seas and oceans, especially before the maritime industry starts investing in infrastructure and skills needed to for unmanned ships to reach a commercial level.

The answers to these questions are far from clear, and much work needs to be done before international solutions are in place. The Comité Maritime International (CMI), of which the Malta Maritime Association is a proud and active member, has recently established a working group on maritime law for unmanned craft, aimed at analysing how international conventions and regulations can adapt themselves to autonomous ships.

Many in the industry, in view of a lack of clear regulations in this respect, have welcomed this news in a conservative manner. Truth is that you cannot stop innovation from happening. Not, at least, in today’s world where ideas travel at the speed of sound from one corner of the world to another and with such a multitude of players wishing to gain new shares in an often saturated market. The interests in such area are many, from that of ship builders wishing to consolidate or grow their market share, to that of the ship owner wishing to cut costs or that of IT developers wishing to expand their reach in this industry, to that of crew members wishing to safeguard their jobs.

The importance of such a new means of navigation, although still far from becoming an everyday reality, has generated such an interest that even the IMO’s Maritime Safety Committee kicked off the procedure leading to the regulation of Maritime Autonomous Surface Ships (MASS). This exercise aims at regulating aspects concerning safety, security and environment. IMO’s focus is international trade facilitation, analysis of potential costs of the industry and the impact on individuals operating both off and onshore. The IMO will first look into the application of current legislation onto MASS and ascertain whether each specific provision can be applied to it and the regulations that need to be amended or introduced.

A possible key to facilitating navigation of autonomous ships on our seas and oceans could lie in the adoption of a uniform and linear set of rules modelled on the current IMO framework. It is submitted that a mere temporary or piecemeal update of regulation is not sufficient. Rules should, as much as possible, contain self-updating provisions able to cater for current as well as future technological advances. Shipping, more than any other sector in view of its global breadth, requires common and uniform standards and this can clearly only be achieved through the intervention of the International Maritime Organisation.

by Stephan Piazza, member of the MMLA Executive Committee and Manager Transport & Leisure – Shipping, Aviation & Infrastructure at KPMG in Malta

Source: Times of Malta, Maritime & Logistics Supplement

Picture: new atlas, Rolls-Royce

Member of the Comité Maritime International

MMLA President at UNCITRAL Working Group VI first meeting held in New York on the International Recognition of Judicial Sales

Dr Ann Fenech elected CMI Vice President

Future of ship recycling in the European Union

MMLA President Ann Fenech appointed Honorary Member of the Croatian Maritime Law Association

Regulating autonomous ships

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