Subject: Submission from Norway to the HNS-LNG Correspondence Group

From: Erik Røsæg

Date: Wed, 15 Aug 2007

To: David Bolomini

CC: nifs-hnslng@jus.uio.no

Dear David,

Thank you for your submissions to the correspondence group, which I find very helpful. However, I tend to agree with Mr Naumof's construction of Article 43 of the HNS Convention.

Article 43 reads:

"When depositing an instrument referred to in article 45, paragraph 3, and annually thereafter until this Convention enters into force for a State, that State shall submit to the Secretary-General data on the RELEVANT quantities of contributing cargo received or, in the case of LNG, discharged in that State during the preceding calendar year in respect of the general account and each separate account."

As far as I understand your point, LNG discharged in a state shall not be considered "relevant" and therefore not reported under this provision if the person liable to pay the levy is not resident in a State Party. On the other hand, I think we are in agreement that such cargoes must be the included in the reports pursuant to Article 21; that is the similar reports relating to the time after the Convention has entered into force.

As you point out, your reading of Article 43 would add to the complexity of the Convention. Therefore, this construction should be avoided if possible. And I think it is possible:

-There is no trace whatsoever in the TRAVAUX PRÉPARATOIRES that your reading was the intended reading

-The WORDING does not give any indication whatsoever in the direction of your proposed reading; on the contrary, the word "relevant" would be meaningful also if taken only to refer to the thresholds

-The sole PURPOSE of the reporting of LNG pursuant to Article 43 is, as you point out, that one shall have data to calculate levies as soon as the Convention enters into force. These calculations must take into account all LNG cargo, regardless of whether the contributor is subject to the jurisdiction of a State Party. Therefore, your reading of Article 43 makes it unapt to fulfill its purpose. In my view, one should not construe an Article so that it cannot fulfill its purpose unless one has to - and in this case there is certainly not a compelling need to do so.

In CONCLUSION, I firmly believe that the criteria for including an LNG cargo in the reports pursuant to Article 43 are the same as apply for inclusion in the reports pursuant to Article 21.

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For the sake of completeness, I would also like to add that if the contributors not subject to the jurisdiction of a State Party must put up security, their cargoes are certainly as relevant for revenue purposes as any other cargoes. And to suggest that any enforcement problems mean that there is no liability, as you do in the penultimate paragraph of your letter dated 13 August, is certainly to over-emphasize any problems there may be.

I hope that we shall be able to develop a common view on this matter in the correspondence group,

Best regards,
Erik

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    Professor Erik Røsæg (Rosaeg)
    Scandinavian Institute of Maritime Law
    University of Oslo
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    N-0130 Oslo, Norway

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

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