Concepto y elementos esenciales de las grandes potencias.

The HNS Convention 1996 seeks to extend the benefits from the CLC and the Fund Convention to several thousand categories of hazardous and noxious substances carried by sea as cargo.44 _{The HNS Convention is}

structured in two tiers, of which the first is a provision requiring the ship owners to take insurance, like the CLC, and the second tier is a mutual indemnity provision whereby the cargo owners are required to contri- bute to payouts, like the Fund Convention. The HNS Convention applies to damage caused or clean-up costs incurred in the territory of a state party, in the territorial sea and out to the limits of the EEZ, provided it is damage suffered by a state party or for the costs of clean-up or pre- ventive measures by a state party wherever incurred.45 _{It does not apply}

to oil damage under the CLC or Fund Conventions, to damage by certain radioactive materials, or to war ships.46

43 For a clear descriptive summary of the agreements see May/July 2006 Gard News, No 182, ‘STOPIA and TOPIA 2006 – What, Why and When’.

44 The International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances done at London on 3 May 1996. A Protocol was agreed for this convention in March 2000; the OPRC-HNS Protocol 2000, which has been mentioned in the section on the OPRC Convention in Chapter 3 above.

45 Article 3. 46 Article 4.

The real difficulty about implementing the HNS Convention is the large number of types of materials that it purports to cover when carried as cargo by sea. Under tier one the owner is liable for damage caused by ‘hazardous and noxious substances’. These are widely defined and include ‘oils’ as defined in Annex I of MARPOL 73/78; noxious liquid substances as defined in Annex II of MARPOL 73/78; dangerous liquid substances; dangerous, hazardous and harmful substances, materials and articles in packaged form covered by the International Maritime Dangerous Goods Code (IMDG Code), liquified gases, liquid substances carried in bulk with a flashpoint not exceeding 60 degrees Celsius and solid bulk materials possessing hazardous chemicals.47 _{The list of}

materials that are covered is very long and probably exceeds 4000 items. Note that the HNS definition is drafted to exclude oil cargoes already covered by the CLC and certain radioactive material.48

The terms of tier one (Chapter II) of the convention are similar to the terms of the CLC but there are differences. One is that the definition of ‘damage’ which may give rise to a claim includes personal injury and death onboard or outside the ship provided it is ‘caused’ by one or more of the HNS substances.49 _{Claims for damage, contamination of the envi-}

ronment and preventive measures are similar to those under the CLC. The same exceptions, of war, etc also apply. The upper limit of liability under the tier one provisions is 10 million SDRs for ships not exceeding 2000 tons, plus 1500 SDRs per ton thereafter to 50,000 tons, plus 360 SDRs per ton above that up to a total maximum of 100 million SDRs. Claims for death or personal injury have priority over other claims up to two-thirds of the total amount established.50 _{Ships are required to carry their certi-}

ficate showing they have the compulsory insurance (or other certificate of financial security) and state parties are to require their flagged ships to have this insurance. Port state control provisions allow other state parties to demand the certificate if the ship wishes to enter its ports or offshore installations.

The second tier, set out in Chapter III, follows similar provisions to the Fund Convention 1992. An HNS Fund is established from which the claims are paid and administered by an assembly, a committee on claims for compensation, director and secretariat.51 _{The member states that meet}

the minimum of ‘contributing cargo’ are to require companies operating

47 The full details are set out in Art 1(5). 48 Article 4(3).

49 Article 6. 50 Article 11.

51 The Director and secretariat of the fund appointed under the Fund Convention have also been appointed to administer the HNS Fund, if the HNS Convention comes into force. The many cargos mentioned in the HNS Convention 1996 have been applied to the OPRC Convention 1990 in an OPRC Protocol 2000, as to which see Chapter 3 above.

in their jurisdiction that own relevant cargo to meet the levies made on them by the HNS Fund secretariat. The claims to be met out of the fund are where the tier one cover does not apply, because the owner of the cargo is financially incapable or the damage exceeds the liability under Chapter II.52 _{The usual exceptions apply and the upper limit, including}

any payments by the insurer under Chapter II, for any one incident is 250 million SDRs.

One feature of the HNS Fund, not found in the other similar conven- tions, is that there is power for the assembly to establish three accounts, separate from the general account. These three are the oil account, the LNG account and the LPG account.53 _{Minimum contributing thresholds}

apply before any of the three separate accounts are activated and, for the general account, the minimum amount is 20,000 tonnes of contributing cargo per year before a state is liable for the levies. The convention provides for a fund to be established from which the court may make payments and in which court actions are to be brought, that the HNS Fund has corporate identity to sue and be sued, that the time limits are three years from the damage and a maximum of 10 years from the incident and for direct suit against the fund rather than the owner. Entry into force is 18 months after 12 states have ratified, including four states each with not less than 2 million units of gross tonnage, and the ratifying states have a total of contributing cargo of at least 40 million tonnes of cargo.54 _{There are the usual provisions for amendment by the assembly}

and the ‘tacit acceptance’ special procedure amendment of the limits of liability (only) through an IMO Legal Committee resolution.55

The provisions of the OPRC-HNS Protocol 2000, which extends the preparedness, response and cooperation provisions of the OPRC Con-

vention to the HNS Convention, are mentioned in Section 3.6 in Chapter 3.

The administrative structure associated with the HNS Convention is concerning to many nations and so far the HNS Convention has attracted little international support.56 _{Its objects, however, are laudable and the}

IMO is pressing for states to ratify it. One has in mind, however, that attempting to draft clear laws and regulations for a two tiered system for thousands of cargos is daunting enough, but the task of then educating the shipping industry for such a complex system of liability and compen- sation, and then enforcing compliance, is even more so. If the number of

52 Article 14.

53 Article 19. ‘LNG’ means liquefied natural gas and ‘LPG’ means liquefied petro- leum gas.

54 Article 46. 55 Article 48.

56 The IMO Legal Committee meeting of May 2005 noted that, of the eight states that had ratified the HNS Convention, not one had made the mandatory report about the quantity of contributing cargo received during the previous period; see Report Legal Committee 90th session, LEG90/15, 9 May 2005, Item I.

cargos to which it applied was reduced to a small number it would be more manageable.