Ratification of Hazardous and Noxious Substance by Sea Convention 2010

1. RATIFICATION TO THE HAZARDOUS AND NOXIOUS SUBSTANCE BY SEA CONVENTION 2010PRESENTATION TO NCOP:SELECT COMMITTEE ON ECONOMIC AND BUSINESS DEVELOPMENT AUGUST 2016

2. PRESENTATION OVERVIEW • PURPOSE • BACKGROUND TO THE CONVENTION • DEFINITION AND EXCLUSIONS • HOW IT WORKS • OPERATION OF HNS FUND • CONTRIBUTIONS TO THE FUND • SCOPE OF APPLICATION • SA LEGISLATIVE FRAMEWORK ON HNS • CONSULTATIONS • RECOMMENDATIONS

3. PURPOSE To request the NCOP:SELECT COMMITTEE ON ECONOMIC AND BUSINESS DEVELOPMENT • Take note of the presentation of the HNS( Hazardous and Noxious Substance by Sea Convention) 2010 • To approve the ratification of the Convention

4. BACKGROUND BACKGROUND • The HNS Convention was adopted in May 1996 under the auspices IMO and was amended by a Protocol in 2010 • It aims to ensure adequate, prompt and effective compensation for damage to persons and property, costs of clean-up and reinstatement measures and, economic losses caused by the maritime transport of hazardous and noxious substances (HNS). • HNS cargoes include bulk solids, liquids including persistent and non persistent oils, liquefied gases such as liquefied natural gases (LNG) and liquefied petroleum gases (LPG), and packaged substances.

5. Definition • The definition of HNS set out in the HNS Convention is based on lists of individual substances identified in a number of IMO Conventions and Codes, designed to ensure maritime safety and prevention of pollution. • There are a large number of substances covered by the Convention, such as those which appear under the International Maritime Dangerous Goods Code (IMDG Code), which lists hundreds of substances which can be dangerous when shipped in packaged form.

6. exclusions • Some bulk solids such as coal and iron ore ,Oil Pollution damage from tankers, damage from bunker fuel oil, damage caused by radioactive materials are excluded

7. HOW IT WORKS • Establishes a two-tier regime in a single treaty to provide compensation for loss or damage to persons, property and the environment arising from the carriage of HNS by sea. • The First tier of compensation is paid by the shipowner or his/ her insurer. • The Second tier of compensation is paid by the HNS Fund when the shipowners liability is insufficient to cover costs of damages, is exonerated from liability, or is financially unable to meet his/her obligations. • .

8. OPERATION OF THE HNS FUND • The HNS Fund is modelled against under similar fund regimes such as the IOPC Funds -The fund is governed by an Assembly composed of all Member States Assembly’s functions include reviewing: • the scope of definition of contributing cargo and • the implementation of the Convention, with particular reference to the calculation of levies and the contribution mechanism for domestic trade • HNS Fund is administered by a Secretariat, headed by a Director • Assessment and payment of claims for compensation • Receive reports of contributing cargo and Levy contributions from Cargo Owners

9. CONTRIBUTIONS TO HNS FUND HNS FUND • Compensation payments made by the HNS Fund will be financed by : -contributions levied on persons who have received, in a calendar year, - contributing cargoes after sea transport in a Member State, in quantities above the thresholds laid down in the 2010 HNS Convention. -For each contributor, the levies will be in proportion to the quantities of HNS received by that person each year. • However, cargo is not considered to be contributing cargo so long as it is in transit provided that the cargo is not imported, consumed or transformed, • HNS Fund's compensation payments will be made post-event, • Compensation may be spread over several years in the case of a major incident.

10. SCOPE OF APPLICATION • As per the Convention compensation shall apply to: • Loss of life or personal injury • Loss of or damage to property outside the ship carrying HNS and economic losses • Costs of preventive measures, clean-up and reasonable measures of reinstatement of the environment • Apply to damage caused by HNS in the territory, including the territorial sea, of a State Party • Apply to damage caused outside the territory and the territorial sea of any State

11. SA LEGAL FRAMEWORK • SA is a State Party to Conventions dealing with prevention of oil pollution from ships and not to pollution emanating from other sources such as HNS • SA is a State Party to MARPOL, CLC and IOPC Fund and those Conventions have been translated to national laws e.g. Marine Pollution (Control Civil Liability )Act, 1981, CLC Act, 2013 and IOPC Fund Act, 2013 • Under Marine Pollution (Control Civil Liability) Act, 1981 shipowners are only liable up to about R120m • Should there be any major HNS spillage, the clean up operation and the rehabilitation of marine environment will be funded by the Government.

12. CONSULTATIONS • The Convention was referred to the State Law Advisors of both the Department of International Relations and Cooperation and Department of Justice and both Departments found the Convention to be in Compliance with International and Domestic Law practice. • The Convention was also consulted with the following Departments and stakeholders which also supported the accession to the convention: -National Treasury ( Money Bill) -Department of Mineral Resources -South African Petroleum Industry Association (SAPIA), - Maritime Law Association (MLA), -SmitAmandla Marine, - Chemical and Allied Industry Association (CAIA) -SAMSA

13. CONSULTATIONS -CONT • Take note also that the Portfolio Committee on Transport has already been presented the proposed ratification of the NHS Convention

14. RECOMMENDATIONS It is recommended that the SELECT COMMITTEE ON ECONOMIC AND BUSINESS DEVELOPMENT • Approves the ratification of the HNS Convention 2010

15. THANK YOU