The October 2011 sessions of the governing bodies – In brief
The IOPC Funds held meetings of its governing bodies during the week 24 to 28 October 2011. Seventy-one Member States attended concurrent sessions of the 1992 Fund Assembly, the Supplementary Fund Assembly, the 1992 Fund Executive Committee and the 1971 Fund Administrative Council.
Tribute to victims of Turkish earthquake
Prior to the opening of all of the sessions of the IOPC Funds’ governing bodies, the 1992 Fund Assembly Chairman referred to the distressing news of the earthquake which had occurred in Turkey on 23 October 2011. On behalf of all of the IOPC Funds’ governing bodies, the Chairman expressed deepest sympathy to the people of Turkey and its Government for the lives lost and devastation caused.
Chairmen of the October 2011 sessions
The governing bodies elected the following Chairmen:
|The 1992 Fund Assembly:||Mr Jerry Rysanek (Canada)|
|The Supplementary Fund Assembly:||Vice-Admiral Giancarlo Olimbo (Italy)|
|The 1971 Fund Administrative Council:||Captain David J F Bruce (Marshall Islands)|
In the absence of the Chairman, the Vice-Chairman, Mr Alan Lim (Singapore) chaired the 53rd session of the 1992 Fund Executive Committee.
Farewell to the out-going Director, Mr Willem Oosterveen
Since the last sessions of the governing bodies in July 2011, the Director, Mr Willem Oosterveen, had announced that, due to ill-health, at the expiry of his current contract on 31 October 2011, he would not be seeking a second term of office and that, as a result, the current meetings would be his last as Director. Mr Oosterveen gave a moving farewell speech and delegations, Chairmen and the Secretariat paid tribute to him for his outstanding contribution to the work of the international oil pollution compensation regime for nearly 20 years, both as a delegate and as Director.
Incidents involving the IOPC Funds
JS Amazing (Nigeria, June 2009)
The 1992 Fund Executive Committee noted that the 1992 Fund had recently been informed of an oil spill which had occurred in June 2009 in the Warri River, Delta State, Nigeria. In view of the fact that the incident had not been widely reported outside of Nigeria and very little information was available, the 1992 Fund had instructed lawyers in Nigeria to gather background information concerning the incident, the impact of the spill and any clean-up operations undertaken. The lawyers had met with the shipowner but no information had been provided as to whether the vessel was insured for pollution liabilities as required under Article VII.1 of the 1992 CLC and no details were given of any claims received or compensation paid. The Executive Committee also noted the difficulties faced in obtaining information regarding this incident which took place over two years ago, and looked forward to receiving further information from the Secretariat who would continue investigating the incident with the Nigerian authorities before reporting back to the 1992 Fund Executive Committee at its next session.
Hebei Spirit (Republic of Korea, December 2007)
The 1992 Fund Executive Committee noted that the Hebei Spirit incident continued to provide one of the biggest challenges yet faced by the 1992 Fund, with more than 127 000 individual claims submitted so far, mainly from the Korean fishing sector. The governing bodies noted that compensation of some KRW 135 billion (£79 million) had been paid by the P&I Club Assuranceföreningen Skuld (Gjensidig) (Skuld Club), and that the 1992 Fund would soon start to make compensation payments to victims of this spill. Based on the information available at the time of the sessions, the 1992 Fund Executive Committee decided to maintain the level of payments at 35% of the amount of the losses established by the Club and Fund and that this percentage should be reviewed at the 1992 Fund Executive Committee’s next session.
Erika (France, December 1999)
The Executive Committee noted that on 14 October 2011 the Acting Director had signed on behalf of the 1992 Fund a global settlement with Steamship Mutual (acting on its own behalf and also on behalf of the shipowner’s interests), Registro Italiano Navale (RINA) and Total, in respect of the Erika incident.
The main objective of the global settlement is to ensure that civil parties who, by the judgement of the Criminal Court of Appeal in Paris in March 2010, had been awarded compensation for damage caused as a result of the incident, received such compensation as soon as possible.
Under the general four party agreement, the 1992 Fund, Steamship Mutual, RINA and Total have undertaken to withdraw all proceedings against the other parties to the agreement and, in addition, have waived any rights to bring any claim or action which they might have in relation to the Erika incident against any of the other parties to the agreement. Under the agreement the 1992 Fund will continue to handle the 13 pending legal actions brought against it, totalling some €19.9 million, and will pay in accordance with judgements.
Election of members of the 1992 Fund Executive Committee
In accordance with 1992 Fund Resolution N°5, the 1992 Fund Assembly elected the following States as members of the 1992 Fund Executive Committee to hold office until the end of the next regular session of the 1992 Fund Assembly:
|France||Mexico||Republic of Korea|
Reports of the second and third meetings of the 6th intersessional Working Group on ‘the assessment of large numbers of claims for small amounts’
The Working Group held its second and third meetings on 31 March and 7 July 2011 respectively. The Chairman of the Working Group, Mr Volker Schöfisch (Germany), presented the Reports of those meetings, set out in documents IOPC/OCT11/4/2 and IOPC/OCT11/4/3, to the 1992 Fund Assembly. He pointed out that on the question of interim payments the Working Group had established a Consultation Group to focus on that matter. Two main questions had arisen: firstly, whether the insurer when making payments is doing so on behalf of both parties, itself and the IOPC Funds; secondly, whether Member States should be asked to ensure that their national law gives full effect to subrogation rights acquired by the insurer when it makes interim payments in order to avoid double payment. Following further discussions, the Consultation Group is expected to return to the Working Group with a proposal for a Resolution at its next meeting. As regards the topic of handling a large number of small claims, the Secretariat has been requested to prepare drafts of new text for the Claims Manual for the Working Group’s consideration at its next meeting. Finally, several proposals in relation to the role of Member States have been discussed and the Secretariat has been asked to prepare a more detailed list of recommendations that could be derived from the proposals, to ensure that those Member States wishing to follow one or other recommendation, have a clear understanding. The Chairman suggested that the Working Group should be in a position to agree on that list at its next meeting, which will take place during the spring 2012 sessions of the governing bodies.
Establishment of the 7th intersessional Working Group to consider the definition of ‘ship’
In October 2010 the 1992 Fund Administrative Council, acting on behalf of the 1992 Fund Assembly, instructed the Acting Director to provide a legal analysis of the extent to which the interpretation of the definition of ‘ship’ within Article I.1 of the 1992 CLC might include floating storage units, and to consider whether to levy contributions for oil carried by ‘mother’ vessels. The Acting Director engaged Professor Vaughan Lowe QC, a practising lawyer and leading academic at the University of Oxford, to carry out the study, which was presented to the 1992 Fund Assembly at its 16th session. Professor Lowe’s legal opinion is at Annex I to document IOPC/OCT11/4/4. Following discussions on the issue, the 1992 Fund Assembly decided to establish a Working Group to consider the implications of the proposals contained in the Acting Director’s document, and to report back to the 1992 Fund Assembly at its next session. The Chairman of the Working Group will be Mrs Birgit Sølling Olsen (Denmark) and its terms of reference are at Annex III to document IOPC/OCT11/11/1.
Secretariat and administrative matters
A number of items were considered under this agenda item, including discussions relating to contingency planning for the position of Director and other senior personnel, where it was decided that the position of Deputy Director should be a permanent post and that the role could be combined with another role in the Secretariat. The 1992 Fund Assembly also debated and adopted a revised 1992 Fund Resolution N°9 regarding the appointment of the IOPC Funds’ Director and the term of service.
Election of a new Director
The 1992 Fund Assembly elected Mr José Maura Barandiarán of Spain as the next Director of the IOPC Funds. Having worked for the IOPC Funds for 15 years, initially as a Claims Manager, then as Head of the Claims Department and, since October 2010, as Acting Director, Mr Maura officially takes his duties as Director on 1 November 2011 for a term of five years.
The governing bodies expressed their appreciation to the Secretariat on the successful launch in August 2011 of the Document Services website (www.iopcfunds.org/documentservices) which forms part of the IOPC Funds’ website, and instructed the Secretariat to cease posting printed meeting documents to delegates, provided that, in addition to having access to meeting documents online, they would receive notification of new documents as registered users and would also have access to printed copies of documents at the time of the meetings.
Financial reporting and financial policies and procedures
The 1992 Fund Assembly, the Supplementary Fund Assembly and the 1971 Fund Administrative Council approved the Financial Statements of the respective Funds for the financial year 2010.
Submission of oil reports
The governing bodies noted the Director’s concern that oil reports were outstanding in respect of a number of 1992 Fund Member States for more than one year, and in respect of former 1971 Fund Member States. The governing bodies were particularly concerned that six States had not submitted any reports since becoming Members of the 1992 Fund and no reports had been submitted by two States since they became Members of the 1971 Fund. The governing bodies noted the Secretariat’s continued efforts to obtain the outstanding reports, and requested the support of all 1992 Fund Member States and former 1971 Fund Member States to support the Secretariat in its endeavours.
Measures encouraging the submission of oil reports
The 1992 Fund Assembly instructed the Secretariat to continue with the trial of an online reporting system and to report the outcome of the trial to the 1992 Fund Assembly at its next session. With the intention of improving the accuracy and timeliness of the submission of oil reports, following a proposal by the joint Audit Body, supported by the Acting Director, the 1992 Fund Assembly decided to subscribe to the Lloyds List Intelligence data, which would provide independent data to help States validate oil information, on a trial basis.
Election of Members of the joint Audit Body
The 1992 Fund Assembly elected the following members of the joint Audit Body:
Mr Emile Di Sanza (Canada) (also elected Chairman of the Audit Body)
Mr Thomas Kaevergaard (formerly Johansson) (Sweden)
Professor Seiichi Ochiai (Japan)
Mr John Gillies (Australia)
Vice-Admiral Giancarlo Olimbo (Italy)
Mr Michael Knight (United Kingdom) (to fill the role of the ‘external expert’)
In the absence of further nominations for members, the Assembly decided to allow the Audit Body to function with five members nominated by 1992 Fund Member States and the external expert for the next three-year term and to review the composition of the Audit Body at its October 2014 session.
The Assembly expressed its gratitude to the out-going members: Mr Nigel MacDonald (former external expert) (United Kingdom), Mr Mendim Me Nko’o (Cameroon) and Mr Wayne Stuart (Australia), who had chaired the Audit Body during the past three years; for their valuable contribution to the work of the Audit Body.
Appointment of members of the joint Investment Advisory Body
The 1992 Fund Assembly expressed its sincere gratitude and appreciation to Mr David Jude, who was not seeking reappointment, for his valuable work as a member of the joint Investment Advisory Body (IAB) since 1994. The Assembly reappointed Mr Brian Turner and Mr Simon Whitney-Long as members of the joint IAB for a term of three years. The Assembly appointed Mr Alan Moore to replace Mr David Jude as a member of the joint IAB for a term of three years.
Canada, France, Germany, Netherlands, Norway and Turkey signed the Protocol of 2010 to the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 (2010 HNS Protocol), subject to ratification, on 25 October 2011 at IMO. The signature ceremony took place in the presence of the Secretary General of IMO as the depository of the HNS Convention, and the Acting Director of the IOPC Funds and brought the number of signatories to the 2010 HNS Protocol to seven. It was noted that Denmark had been the first State to sign the Protocol in April 2011 and that Greece would sign the Protocol on 31 October 2011.
The 1992 Fund Assembly noted the progress made in respect of the setting up of the HNS Fund by the Secretariats of the 1992 Fund and the IMO since its last session in July 2011, including the production of a consolidated list of substances in the form of a database accessible via the internet, complete with a search function allowing for specific interrogation, indicating whether or not a substance would be considered contributing cargo under the 2010 HNS Protocol for the purpose of reporting. It was noted that the Secretariat would continue the development of the HNS Finder to include the possibility for registered users to create an HNS contributing cargo report online.
The budget for 2012
A joint administrative budget for the 1992 Fund, the Supplementary Fund and the 1971 Fund of £4 670 510 was adopted for 2012, as set out in document IOPC/OCT11/11/1, Annex VI.
The 1992 Fund Assembly, the Supplementary Fund Assembly and the 1971 Fund Administrative Council approved the Director’s proposal that, to cover the cost of administering the Supplementary Fund and the 1971 Fund for the financial year 2012, the Supplementary Fund and the 1971 Fund should pay flat management fees of £59 500 and £255 000, respectively, to the 1992 Fund.
Assessment of contributions
As a result of the global settlement reached in respect of the Erika incident there will be a significant surplus on the Erika Major Claims Fund after providing for claims still in court. The 1992 Fund Assembly therefore decided to reimburse £25 million of the surplus to the contributors to that Major Claims Fund, repayable on 1 March 2012.
The Assembly decided to levy £8.5 million in respect of the Prestige Major Claims Fund and £31.5 million in respect of the Hebei Spirit Major Claims Fund, both payable by 1 March 2012.
It also decided to levy £5.5 million in respect of the Volgoneft 139 Major Claims Fund, the entire levy to be deferred, but subject to a decision by the 1992 Fund Executive Committee authorising the Director to make payments in respect of that incident. The Director was authorised to invoice all or part of the deferred levy for payment during the second half of 2012, if and to the extent required.
It decided to levy 2011 contributions to the General Fund of £3.5 million, payable by 1 March 2012.
Supplementary Fund Assembly and 1971 Fund Administrative Council
The governing bodies decided not to levy contributions to the 1971 Fund or the Supplementary Fund.
The governing bodies decided to hold the next regular sessions of the 1992 Fund Assembly and the Supplementary Fund Assembly and the autumn session of the 1971 Fund Administrative Council during the week of 15 October 2012. Dates were also agreed for possible sessions of the governing bodies, or meetings of their subsidiary bodies during the weeks of 23 April and 9 July 2012.
Farewell to Chairmen of the 1992 Fund Assembly and Supplementary Fund Assembly
The 1992 Fund Assembly expressed its appreciation for its outgoing Chairman, Mr Rysanek (Canada) who stepped down at the end of the Assembly’s 16th session after five years in the role and 26 years attending meetings at the International Maritime Organization. The Director-Elect paid tribute to Mr Rysanek and the remarkable work he had undertaken for the IOPC Funds. He stated that Mr Rysanek had been an excellent Chairman and that both the Secretariat and delegations alike were all very sad to see him go.
The Supplementary Fund Assembly expressed its appreciation for the work of Vice-Admiral Olimbo as its Chairman, who was also stepping down at the end of the 7th session of the Supplementary Fund Assembly after five years. The Director-Elect thanked Mr Olimbo for his work as Chairman, stating that whilst his time as a Chairman had come to an end, the Director-Elect was delighted that Mr Olimbo would continue to work with the Secretariat in his new role as a member of the joint Audit Body.
Election of Chairmen for future meetings
Chairmen of the October 2011 sessions
The governing bodies elected the following Chairmen to hold office until the next regular sessions of the governing bodies in October 2012:
|The 1992 Fund Assembly:||Mr Gaute Sivertsen (Norway)|
|The Supplementary Fund Assembly:||Mr Sung-Bum Kim (Republic of Korea)|
|The 1971 Fund Administrative Council:||Captain David J F Bruce (Marshall Islands)|
|1992 Fund Executive Committee:||Ms Ginette Testa (Panama)|
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