George Naumof
Senior inspector
Romanian Naval Authority
Dear Professor Erik Rosaeg,
Many thanks for your very kind and quick response letter.
Please take my letters as an option to stay on the list of correspondents.
I wish to leave at your consideration if my letters are a valuable contribution to an open exchange of views of the Correspondence Group. If you consider that they are, then please distribute them, together with yours replies to facilitate the understanding of them.
Thank you that you agree part of my points of view.
Probably I was not enough clear in my explanation. For sure, the phrase you struggled to understand is understandable only by me.
Now is my turn to struggle to be clearer in the expression of my opinions.
About my understanding of this convention, in respect of LNG cargo there is a very big inconsistence with the principles of an international convention.
I understand that a state becomes party to this convention, but its obligation to contribute to the HNS Fund must be met by someone who has no any link/relationship with this state. What I affirmed above is a translation of article 19 “…annual contributions to separate accounts shall be made in respect of each State Party :…(b) in the case of the LNG account, by any person who in the preceding calendar year, …….., immediately prior to its discharge, held title to an LNG cargo discharged in a port or terminal of that state;” If we take in consideration that the amount of the annual contribution is established by the Assembly of the HNS Fund, which also establishes the moment when the levy has to be paid and the HNS Fund collects directly the contributions from the persons liable to pay contributions, the conclusion is that the State Party has no any lever in implementing the procedures and ensuring the payments of contributions. The only one task of the State Party is to communicate to the Director of HNS Fund the names, addresses of the title holders of LNG cargoes and the quantity of LNG cargoes discharged in its ports. Also, the State Party shall ensure that any obligation arising under this Convention is fulfilled and shall take appropriate measures under its law, with a view to the effective execution of any such obligation (article 6).
I understand that the State Party shall take appropriate measures so that the person liable to pay contribution (the person who, immediately prior to its discharge, held title to an LNG cargo discharged in a port or terminal of that state) to fulfill his/her/its obligation.
I consider that the measure to oblige, via implementation law, the physical receiver or other body to become the surety of that person is not an appropriate measure, because it is not achieved an effective execution of such obligation, but a transfer of the obligation is done.
I consider that appropriate measures could be:
· The conditioning of the discharge of the LNG cargo by a declaration and a commitment for paying the levy established by the HNS Fund, given by the person who, immediately prior to its discharge, held title to an LNG cargo;
· The interdiction of the discharge of the LNG cargo if the person who, immediately prior to its discharge, held title to an LNG cargo is on the “black list” of the refusals/arrears to pay levies, established by the HNS Fund or by the State Party.
These are the reasons that I said that is no way to oblige, via implementation law, other person, as the physical receiver of LNG cargo or the provider of security or additional debtors, to pay contributions in lieu of the person who, immediately prior to its discharge, held title to an LNG cargo.
I agree that the measure to introduce a surety of the person who, immediately prior to its discharge, held title to an LNG cargo and this surety to be under the jurisdiction of the State Party ensures the collection of the levies to HNS Fund, but this measure is an abatement from the HNS Convention principles, respectively the transfer of the obligation from the person liable to pay contributions to a person who is not mentioned in the HNS Convention. Under the provisions of the article 23 of the HNS Convention, only the State Party could be able to take over the obligations of the persons liable to pay contributions, but this action is optional and if it is not generally assumed by all States Parties could produce an important lack of balance in the implementation of this convention.
I agree that the measure to impose to the physical receiver to be the surety of the person who, immediately prior to its discharge, held title to an LNG cargo is an exercise of territorial sovereignty, but the result is the distortion of the international convention provision. Also, I agree that could appear political and/or commercial pressures to unload an LNG carrier, even are not met all the conditions to discharge the LNG cargo, but according to the HNS Convention provisions the State Party has not the obligation to be the surety of the person liable to pay contributions.
The case of the nonpayment of contributions is foreseen in article 22 of the HNS Convention. According to these provisions, the State Party has no action to undertake. Why and how to ask to the State Party to intervene and to execute a surety, if such an action is not foreseen in the HNS Convention?
Also, I agree that there is no certainty that even an explicit undertaking to pay by the title holder would be enforceable in the courts of a non State Party, but the title holder have to be called by the HNS Fund in front of the court of the State Party where the engagement was taken and this court has to take into consideration the implementation law, where the provision is very clear.
I hope that this time I was enough clear and you understood what I intended to express.
As a conclusion, I believe that the transfer of the burden to pay contribution for LNG cargo from the title holder to the receiver or other surety of the title holder is abatement from the principles and provisions of the HNS Convention.
Probably it is the time to recognize that this special rule, applicable only for LNG cargo is a mistake and that it is not properly for an international convention to bind a state for obligations which shall be fulfilled by persons which are not under its jurisdiction. May be it is the time for a protocol to amend this convention to do it more friendly in implementation.
Best wishes,
George Naumof