Subject: Re: IOPC Correspondence Group: Collection of LNG levies

From: Erik Røsæg

Date: Thu, 21 Jun 2007 13:18:32 +0200

To: Gheorghe Naumof

Dear Mr Naumof,

Thank you very much for your letter. I would be happy to distribute it to the Correspondence Group if you so wish. I do not agree entirely with all your points of view, but that does not, of course, prevent that the letter would be a valuable contribution to an open exchange of views.

I take it that you in any event would like to stay on the list of correspondents. The Correspondence Group has an open membership.

I like very much that you propose that the contributor to the HNS Fund shall put up security for his contribution. As you may know, the Norwegian draft implementation legislation include a similar rule.

I also agree with you that the physical receivers of cargo always will be subject to the (territorial) jurisdiction of the Port State by virtue of their activity (receipt) there.

What I struggle to understand, is the following statement of yours:

"In my opinion, it 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 on his/her/its behalf."

As far as I can see, as the Port State has jurisdiction over the physical receiver (above), that State also has the jurisdiction to make the receiver a surety for the title holder , that is, IN ADDITION TO the liability of the title holder. This is simple exercise of territorial sovereignty, and I cannot see anything in international law that limits the sovereignty in this respect. Why do you say that there is "no way" the post State can exercise its territorial jurisdiction to make the physical receiver the surety of the title holder?

Alternatively, the arrangements you outline in I could be utilized. The problem seen from a Port State perspective would perhaps be that one may occasionally fail to require the undertaking from a title holder, or that the title holder occasionally may refuse to give the undertaking to pay, and the political and/or commercial pressure to allow the ship to discharge despite the lack of undertaking would be too great to resist. In any event, 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.

I look forward to hearing from you, in particular in respect of whether or not your letter shall be distributed to the Correspondence Group.

Best wishes,
Erik Røsæg

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    Professor Erik Røsæg (Rosaeg)
    Scandinavian Institute of Maritime Law
    University of Oslo
POB 6706 St. Olavs plass
    N-0130 Oslo, Norway

    Tel: (+47) 2285 9752 - (+47) 4800 2979
    Fax: (+47) 9476 0573
erik.rosag@jus.uio.no
https://rosaeg.no/erikro/index.html

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