OVER the past 50 years or so, there has been a steady increase in the international regulation of the global merchant fleet, mainly thanks to the work of the International Maritime Organization (IMO), a specialised agency of the United Nations based in London.

IMO has a legal committee – comprising all the organisation’s members – which has a broad remit. According to IMO, the committee deals with “any legal matters within IMO’s scope”.

Such matters include liability and compensation issues related to the operation of ships, including damage, pollution, passenger claims, and wreck removal. The committee also tackles issues relating to the avoidance of IMO regulations, as well as any malpractice. Broadly, the committee is concerned with the legal implementation of IMO conventions, which constitute international law for IMO member states. In effect, IMO conventions are binding on almost all countries that have seagoing fleets.

The committee met for its 110th session late last month.

As usual, it dealt with a wide range of issues. These included seafarer abandonment; fair treatment of seafarers detained on suspicion of committing maritime crimes through bunker and marine liability issues; and an expression of “grave concern over the negative impact of the Russian Federation’s invasion of Ukraine on international shipping in the northern part of the Black Sea, the Sea of Azov and the Kerch Strait, the safety of commercial vessels and well-being of seafarers”. 

A significant amount of time was devoted to discussion of, as IMO noted, “the dangerous practice of ship-to-ship transfers in the open ocean, as well as the methods used to obscure ship identities and turning off AIS (automatic identification systems) transponders”.

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The regulation of tankers’ ship-to-ship operations is prescribed by IMO’s International Convention for the Prevention of Pollution from Ships. The committee noted that the rising number of ship-to-ship transfers on the high seas “undermined the spirit” of such regulation.

The committee received a document which raised awareness of the consequences – and concerns for the global liability and compensation regime – of such an increase.

It was reported that a fleet of between 300 and 600 tankers – with “substandard maintenance, unclear ownership and a severe lack of insurance” – was being operated as a “dark fleet” or “shadow fleet”, to circumvent sanctions and high insurance costs. These tankers largely comprised older ships, including some that had not been inspected recently.

The committee noted that the presence of such a fleet increases the risk of an oil spill or collision. A participating shipowner could “evade its liability under the relevant liability and compensation treaties, such as the International Convention on Civil Liability for Oil Pollution Damage, and the International Convention on Civil Liability for Bunker Oil Pollution Damage”. The committee also flagged a risk for coastal states and the International Funds for Compensation for Oil Pollution Damage.

The committee noted that ship-to-ship transfers on the high seas are high-risk activities that undermine the international regime with respect to maritime safety and environmental protection. It added that liability and compensation need to be urgently addressed.

Consequently, the committee has made a number of recommendations to IMO member states.

First, it called upon member states to ensure that tankers under their respective flags “adhere to measures which lawfully prohibit or regulate ship-to-ship transfers, and that such vessels further adhere to the spirit of the safety requirements in IMO conventions and practice safe shipping standards to minimise the risk of oil pollution”.

Second, the committee asked that member states “consider requiring that vessels update their ship-to-ship operations manuals to include notifying their flag state when they are engaged in a mid-ocean operation”.

Third, it asked member states to “ensure enforcement of the safety and liability conventions on these vessels and ensure that ship-to-ship transfer operations are conducted in accordance with the applicable safety requirements in IMO convention”.

Fourth, if a port state becomes aware of any ships “going dark”, it should “consider subjecting such vessels to enhanced inspections as authorised, and notifying the respective vessel’s flag administration, as appropriate”.

Is this a package of measures that will force the dark fleet back into the light?

Probably not, although a resolution to the IMO Assembly – the organisation’s highest governing body – in November and December this year could strengthen it.

The committee discussed another topic which is surely relevant to the dark fleet – how to prevent unlawful practices associated with fraudulent registration and fraudulent registers of ships.

It noted that “such illicit practices undermine the foundation of the overall IMO regulatory regime”. It added that there was “broad support in principle for the creation of a database for flag states and port states to share information on fraudulent registration and fraudulent registries of ships”, as well as “support for the development of methods for validating the authenticity of ships’ certificates”.

S&P Global, a commercial company, collates IMO numbers and tonnage figures. IMO has tasked it with presenting options for the creation of a database on fraudulent registration and registries.

The committee is also exploring a move that could make a big difference when it comes to enforcing international law at sea. It is reviewing the 1986 UN Convention on Conditions for Registration of Ships.

The treaty – which is yet to enter into force – “establishes international standards for the registration of vessels in a national registry, including references to the genuine link, ownership, management, registration, accountability and the role of the flag state”, as noted by IMO.

While it is not an IMO convention, the organisation could take it over, if the move is approved by a two-thirds majority vote of the IMO Assembly. No decision to proceed was taken by the committee, but if IMO does go down this route, it could greatly increase transparency and throw light on the often complex ownership structures of ships. Whether there is enough support for doing this remains to be seen.

Given the troubled global geopolitics that in reality impact much of global shipping, it is easy to be sceptical about the measures being taken or proposed at IMO.

However, it could be that technological advances mean that the days of being able to go dark are numbered. Recently, a press release from a company called Unseenlabs landed in my inbox. It claims to be “the first world radio frequency data and solutions provider for maritime domain awareness”. It announced the impending launch of BRO-9, the ninth satellite of its constellation “dedicated to the geolocation of all the vessels at sea”.

Clement Galic, the company’s chief executive officer and co-founder, said that BRO-9 “will strengthen our capabilities to detect and track vessels – including uncooperative ones”. He also said the satellite will boost capacity to fight crime at sea, such as illegal, unreported and unregulated fishing, smuggling, piracy, and marine pollution.

“Unlike conventional maritime surveillance systems, our technology is limitless: at any time of the day or night, anywhere on the globe, and in any weather conditions, we can detect all the vessels navigating at sea, even those willing to go uncovered,” Galic added.

Perhaps, together with IMO’s regulatory moves, advanced surveillance technologies could eventually spell the end of the dark fleet.