The convention will enter into force
12 months after ratification by 10 states
Introduction
On May 18 2007 the International
Maritime Organisation (IMO) adopted the Nairobi International Convention on the Removal of Wrecks. The convention fills a gap in the
existing international legal framework by providing the first set of uniform
international rules aimed at ensuring the prompt and effective removal of
wrecked ships.
Owners will now be required to take out
compulsory liability insurance and strict liability will be imposed on an owner
for the costs of locating, marking and removing a wreck. Authorities will also
be permitted to commence direct action against an owner's liability insurer.
Several countries are currently considering ratification of the convention.
The convention is the latest in a
series of liability and compensation conventions emanating from the IMO and
modelled on the Convention on Civil Liability for Oil Pollution Damage 1992.
Scope of application
The geographical area of application of
the convention is the exclusive economic zone of any state where the state has
only limited legislative and enforcement jurisdiction.
States may order the removal of wrecks
from their exclusive economic zone only if there is specific legal basis under
applicable public international law, such as the United Nations Convention on
the Law of the Sea 1982 or the International Convention relating to
Intervention on the High Seas in Cases of Oil Pollution Casualties 1969, as
amended. Under these conventions, the authorities may, broadly speaking, order
wreck removal if there is an imminent and serious risk of pollution, but a
state has only limited powers to claim compensation for costs related to the
removal of the wreck.
The Wreck Removal Convention provides a
firmer legal basis for both ordering wreck removal and claiming compensation. A
state may opt to extend the application of the convention to its territorial
waters, where the state has full jurisdiction.
The convention adopts a wide definition
of 'ships', which includes seagoing vessels of any type, such as cargo ships,
tankers, drilling vessels, floating production, storage and offloading units,
floating storage and offloading vessels and floating platforms. However, the
convention does not apply to floating platforms on location and engaged in the
exploration, exploitation and production of seabed mineral resources, although
it will apply to such floating platforms being towed to and from the field.
Reporting, locating, marking and
removing wrecks
The convention imposes a duty on the
master and the operator of the ship to report without delay when a ship has
been involved in a maritime casualty resulting in a wreck. The state is obliged
to locate the wreck and determine whether the wreck poses a hazard to
navigation or the marine environment.
If the wreck is determined a hazard,
the state shall ensure that all reasonable steps are taken to mark the wreck by
using the international system of buoys and publish the location of the wreck
through notices to seafarers.
The registered owner will also be under
an obligation to remove the wreck. The state may impose conditions for such
removal or intervene during the removal to the extent necessary to ensure that
the removal proceeds in a manner that is consistent with considerations of
safety and protection of the marine environment.
If the owner does not remove the wreck
within a deadline set by the state, the owner cannot be contacted or the
circumstances require immediate action, the state may remove the wreck by the
most practical and expeditious means available.
Liability of the owner
The convention imposes strict liability
(without regard to fault) on the registered owner for the costs of locating,
marking and removing the wreck, provided that these costs are reasonable and in
proportion to the hazard.
Liability is subject to the ordinary
defences found in the IMO liability and compensation conventions, including
that the maritime casualty causing the wreck:
• resulted
from an act of war, hostilities, civil war etc;
• was
wholly caused by an act or omission done with the intent to cause damage by a
third party; or
• was
wholly caused by the negligence or other wrongful act of any government or
authority responsible for the maintenance of lights or other navigational aids
in the exercise of that function.
Limitation of liability
An owner will be entitled to limit its
liability pursuant to any applicable limitation of liability regime, including
the International Convention on Limitation of Liability for Maritime Claims
1976, as amended by the 1996 Protocol. Many countries have exercised the option
under the 1996 Protocol to implement higher limitation of liability limits for
wreck removal. These higher limits will apply to liability imposed on an owner
under the convention.
Compulsory insurance and direct action
The convention requires the owner of
ships of 300 gross register tonnage and above to maintain insurance to cover
its liability under the convention, provided that the ship is flying the flag
of a state party or is entering or leaving a port in its territory, or arriving
at or leaving from an offshore facility in its territorial waters. The
insurance shall at a minimum cover an amount equal to the limits of liability
under the national or international limitation regime, but not exceeding the
limits under the 1996 Protocol.
Each ship shall carry an insurance
certificate in an approved format.
Any claim arising under the convention
may be brought directly against the insurer. In practice, the claimant will
normally be the national or local pollution or coastal authorities. In many
countries, the claimant is entitled under local law to commence direct action
against the liability insurer in certain circumstances for claims related to
wreck removal. However, the convention will bring uniformity and clarity, and
will further expand the right to commence direct action.
Entry into force
The convention will enter into force 12
months after ratification by 10 states. So far, 3 states have ratified the
convention. Several countries are currently considering ratification. It is
expected that sufficient states will ratify the convention for it to enter into
force during the next two years.
Source: Safety4sea (Sourced from International Law Office). 25
August 2011
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