The Nairobi International Convention on the Removal of Wrecks enters into force today (April 14, 2015). The Convention places strict liability on owners for locating, marking and removing wrecks deemed to be a hazard and makes national certification of insurance, or other form of financial security for such liability, compulsory for ships of 300 gross tons and above. It also provides member nations with a right of direct action against insurers.
The Convention fills a gap in the existing international legal framework by providing a set of uniform international rules for the prompt and effective removal of wrecks located in a country’s exclusive economic zone or equivalent 200 nautical miles zone. The Convention also contains a clause that enables member nations to “opt in” to apply certain provisions to their territory, including the territorial sea.
The Convention provides a legal basis for member nations to remove, or have removed, wrecks that pose a danger or impediment to navigation or that may be expected to result in major harmful consequences to the marine environment, or damage to the coastline or related interests of one or more nations. The Convention also applies to a ship that is about, or may reasonably be expected, to sink or to strand, where effective measures to assist the ship or any property in danger are not already being taken.
Member nations (titled "State Parties") to the Convention as of April 14, 2015 include: Antigua and Barbuda, Bulgaria, Congo, Cook Islands, Denmark, Germany, India, Iran, Liberia, Malaysia, Marshall Islands, Morocco, Nigeria, Palau and the United Kingdom. The Convention will come into force for Malta on April 18, 2015 and for Tuvalu on May 17, 2015.
Provisions in the Convention include:
• a duty on the ship’s master or operator to report to the “Affected State” a maritime casualty resulting in a wreck and a duty on the Affected State to warn mariners and the nations concerned of the nature and location of the wreck, as well as a duty on the Affected State that all practicable steps are taken to locate the wreck;
• criteria for determining the hazard posed by wrecks, including depth of water above the wreck, proximity of shipping routes, traffic density and frequency, type of traffic and vulnerability of port facilities. Environmental criteria such as damage likely to result from the release into the marine environment of cargo or oil are also included;
• measures to facilitate the removal of wrecks, including rights and obligations to remove hazardous wrecks, which set out when the shipowner is responsible for removing the wreck and when the Affected State may intervene;
• liability of the owner for the costs of locating, marking and removing wrecks - the registered shipowner is required to maintain compulsory insurance or other financial security to cover liability under the convention; and
• the settlement of disputes.
I get routinely asked whether the U.S. will ratify this Convention or what are the differences between the Convention and U.S. law. While I cannot speculate as to whether the U.S. will ratify this Convention, most people are aware that the U.S. does not tend to ratify many international maritime conventions, as the process is lengthy and political. Nevertheless, coastal nations generally require a wrecked vessel to be removed. The U.S. is no different.
Under U.S. law, the owner, operator or demise charterer of a vessel (no limit as to size) which has sunk in navigable waters which constitutes a hazard to navigation is required to mark and remove it, is liable to the government for any costs incurred by the government in marking it and removing it, and may be liable to third parties whose property may be physically injured as a result of its failure to promptly remove the wreck or failure to properly mark it. The law imposes strict liability for sinking or permitting to be sunk a vessel or other craft, irrespective of fault, unless the sole cause of the injury was negligence of the United States. Under U.S. law, the liabilities of the vessel owner arising from its continuing duty to mark and remove a wreck are not subject to limitation of liability.
However, the U.S. normally will not remove wrecked, abandoned and derelict vessels that are not in navigable channels and are not hazards to navigation. Thousands of such vessels are abandoned on shorelines and public and private moorages every year, creating safety and pollution hazards. Most coastal states have responded with statutory abandoned vessel removal programs that may meet a practical need, but as they involve state agencies obtaining title and possession by administrative processes, absent federal legislation, state programs that do not involve admiralty in rem actions in federal court may be unconstitutional and/or preempted by federal law. I have blogged on this issue in this past.
If you are interested in receiving a copy of the Convention or want to reach me, please feel free to email me at mov@chaloslaw.com.
