Hazardous and Noxious Substances Damage
On 3 May 1996 the IMO adopted the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention 1996) which has not yet entered into force. It will enter into force 18 months after at least 12 States, including 4 with a minimum gross tonnage of 2 milion tons, have expressed their consent and if the persons in these states contributing to the future HNS Fund had received at least 40 milion tons of relevant substances in the preceding year. The Council, by Decision of 18 November 2002, decided to authorise the Member States to ratify or accede to the HNS Convention in the interest of the Community.
The Convention creates a system of strict liability of the shipowner for damages caused by the carriage of hazardous and noxious substances by sea up to certain limits depending on the tonnage of the ship and covered by compulsory insurance. The maximum amount available under this first tier is 100 million SDR. In addition to that a compensation fund (HNS Fund) will provide compensation in cases where full compensation is not available under the first tier. This may be the case if no liability of the shipowner arises (e.g. act of war), if the shipowner is financially incapable to meet all obligations or if his liability limits are exceeded. The total maximum compensation is of 250 million SDR per incident. The fund will be financed by receivers of HNS substances transported by sea in the Member States in excess of certain thresholds.
Hazardous and noxious substances are defined, for the purpose of the convention, by reference to the lists of substances in Annex II to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78), Chapter 17 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (IBC Code), the International Maritime Dangerous Goods Code (IMDG Code), the International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk (IGC Code), the Code of Safe Practice for Solid Bulk Cargoes (BC Code) and include any liquid substance with a flashpoint not exceeding 60°C as well as any residues from the listed substances.
The Secretariat of the IOPCF prepared a Guide to the Implementation of the HNS Convention and a system to monitor contributing cargo under the HNS Convention, which includes a database of all substances qualifying as hazardous or noxious substances (HNS): HNS Finder and Calculator.
Due to the problems with the ratifications of the HNS Convention 1996 and reports on the contributing cargo, a Protocol amending the Convention was adopted by the IMO Diplomatic Conference in April 2012. The Protocol introduced certain changes to the following issues:
- Liability for carriage of HNS in a package form
- contributions to the LNG Account;
- the concept of "receiver"
- the non-submission of contributing cargo reports on ratification of the Convention and annually thereafter.
The 2010 HNS Convention has not yet entered into force.
- EMSA Report to the European Commission on monitoring of the HNS reporting – the use of the data already available on the basis of the EU legislation.