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The Nairobi Wreck Removal Convention

Q. Is the Convention on the Removal of Wrecks in force?
The Nairobi International Convention on the Removal of Wrecks enters into force on 14 April 2015.

Q. What responsibility is placed on the ship owners?
The Convention places strict liability on owners for locating, marking and removing wrecks deemed to be a hazard and makes State certification of insurance, or other form of financial security for such liability, compulsory for ships of 300 gt and above.

Q. Is there a provision of direct action against insurers?
Yes, the Convention provides States Parties with a right of direct action against insurers.

Q. Which area of the Party State is covered?
The Convention provides for prompt and effective removal of wrecks located (beyond the territorial sea) in a country’s exclusive economic zone or equivalent 200 nautical miles zone. 

Q. What is the provision in respect of ‘opting in’?
The provision in respect of ‘Opting In’ means an optional clause enabling States Parties to apply certain provisions to their territory, including their territorial sea.

Q. What is the benefit caused to State Parties?
The Convention provides a legal basis for States Parties 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 States.

Q. What if a machinery part say an abandoned liner falls overboard in rolling?
Though, the Master or operator must inform the Coastal State, it may not be necessary to mark it if the liner does not pose any danger to surface navigation. The affected State is to determine if the wreck constitutes a hazard. The Hydro Graphic Department, however must be sent the note in appropriate format.

Q. Does the Convention apply to a prospective wreck?
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.

Q. What are the duties of Master and the affected State?
Convention places a duty on the ship’s Master or operator to report to the “Affected State” a maritime casualty resulting in a wreck. It also places a duty on the Affected State to warn mariners and the States 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.

Q. What are the factors which decide the severity of hazard caused by wreck?
The criteria for determining the hazard posed by wrecks, include:

  1. depth of water above the wreck;
  2. proximity of shipping routes;
  3. traffic density, frequency and type of traffic;
  4. vulnerability of port facilities; and
  5. environmental criteria such as damage likely to result from the release into the marine environment of cargo or oil.

Q. What is the requirement of insurance in this respect?
The registered shipowner is required to maintain compulsory insurance or other financial security to cover liability under the convention in respect of locating, marking and removing wrecks.

Q. What is wreck as defined in the Nairobi Convention?
“Wreck”, following upon a maritime casualty, means:

  1. a sunken or stranded ship; or
  2. any part of a sunken or stranded ship, including any object that is or has been on board such a ship; or
  3. any object that is lost at sea from a ship and that is stranded, sunken or adrift at sea; or
  4. 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.

Q. How is the wreck defined in Merchant Shipping Act?
“Wreck” as defined in MSA includes the following when found in the sea or in tidal water or on the shores thereof:-

  1. goods which have been cast into the sea and then sink and remain under water;
  2. goods which have been cast or fall into the sea and remain floating on the surface;
  3. goods which are sunk in the sea, but are attached to a floating object in order that they may be found again;
  4. goods which are thrown away or abandoned; and
  5. a vessel abandoned without hope or intention of recovery.

Q. What are the “Related interests” as mentioned in the Wreck Removal Convention?
Related Interests means the interests of a coastal State directly affected or threatened by a wreck, such as:

  1. maritime coastal, port and estuarine activities, including fisheries activities, constituting an essential means of livelihood of the persons concerned;
  2. tourist attractions and other economic interests of the area concerned;
  3. the health of the coastal population and the wellbeing of the area concerned, including conservation of marine living resources and of wildlife; and
  4. offshore and underwater infrastructure.

Q. Who is the registered owner?
“Registered owner” means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship at the time of the maritime casualty.

Q. Having said that the Wreck Removal Convention as well as the Intervention Convention has the environmental concerns, if a Coastal State takes action under Intervention Convention fearing the probable damage to own coastline, will the Wreck Removal Convention apply to it?
This Convention shall not apply to measures taken under the International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969, or the Protocol. Thus, if a coastal State may want tow a wreck (burnt ship) off the continental shelf and sink her, it would have notified and consulted the relevant entities. This means that the coastal State will take action to nullify the hazardous effect of wreck, hence the responsibilities of the Master / operator to locate, mark, remove, etc won’t be required.

Q. What must be reported by the Master or the operator of a ship flying its flag to report to the Affected State?
The report made to the Coastal State must provide the name and the principal place of business of the registered owner and all the relevant information necessary for the Affected State to determine whether the wreck poses a hazard, including:

  1. the precise location of the wreck;
  2. the type, size and construction of the wreck;
  3. the nature of the damage to, and the condition of, the wreck;
  4. the nature and quantity of the cargo, in particular any hazardous and noxious substances; and
  5. the amount and types of oil, including bunker oil and lubricating oil, on board.

Q. Once the Affected State determines that a wreck constitutes a hazard, what is done?
If the Affected State determines that a wreck constitutes a hazard, that State shall immediately:
(a) inform the State of the ship’s registry and the registered owner; and
(b) proceed to consult the State of the ship’s registry and other States affected by the wreck regarding measures to be taken in relation to the wreck.

The Affected State shall:
(a) set a reasonable deadline within which the registered owner must remove the wreck, taking into account the nature of the hazard.

Q. What if the registered owner does not remove the wreck within the deadline set, or the registered owner cannot be contacted?
If the registered owner does not remove the wreck within the deadline set, or the registered owner cannot be contacted, the Affected State may remove the wreck by the most practical and expeditious means available, consistent with considerations of safety and protection of the marine environment.

Q. In which situations, the Affected State may remove the wreck?
In circumstances where immediate action is required and the Affected State has informed the State of the ship’s registry and the registered owner accordingly, it may remove the wreck by the most practical and expeditious means available, consistent with considerations of safety and protection of the marine environment.

Q. In which situations, is the registered owner not liable under the Convention?
The registered owner shall be liable for the costs of locating, marking and removing the wreck respectively, unless the registered owner proves that the maritime casualty that caused the wreck:
(a) resulted from an act of war, hostilities, civil war, insurrection, or a natural phenomenon of an exceptional, inevitable and irresistible character;
(b) was wholly caused by an act or omission done with intent to cause damage by a third party; or
(c) was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function.

Q. Can a registered owner limit his liability under LLMC, 1976?
Nothing in this Convention shall affect the right of the registered owner to limit liability under any applicable national or international regime, such as the Convention on Limitation of Liability for Maritime Claims, 1976, as amended.

Q. Can the registered owner escape the liability when there is pollution caused by oil, bunker, etc.?
The registered owner shall not be liable under this Convention for the costs of locating, marking and removing the wreck if, and to the extent that, liability for such costs would be in conflict with:

  1. the International Convention on Civil Liability for Oil Pollution Damage, 1969, as amended;
  2. the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 as amended;
  3. the Convention on Third Party Liability in the Field of Nuclear Energy, 1960, as amended, or the Vienna Convention on Civil Liability for Nuclear Damage, 1963, as amended; or national law governing or prohibiting limitation of liability for nuclear damage; or
  4. the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, as amended; provided that the relevant convention is applicable and in force.

It appears that this rule is based on the principle that, the owner should not be liable to pay twice for the same cause and at the same time the required liability should apply one way or the other. Thus, the pollution related liability should be covered by CLC and the wreck removal related responsibility will be that of the owners.
Thus, if the ship owner is liable for the polluting by oil as well as the removal of wreck and the liability amounts are 100 units and 240 units respectively. This means the liability amounts are in conflict. The extent of conflict being 140 units. The shipowner is liable under CLC for 100 units and liable to the Wreck Removal Convention to the extent of 140 units only.

Q. How will a salvor be paid if the salvage is the measure under the Wreck Removal Convention?
Salvage means changing status from ‘in peril’ to safety. The wreck however, is in a way of no value to the owners. The owner may however, gain from the rescuing of wreck in terms of the oil and the other salved property, in which case salvor may be entitled the salvage dues in terms of reward or special compensation. If the measures under this Convention are considered to be salvage under applicable national law or an international convention, such law or convention shall apply to questions of the remuneration or compensation payable to salvors to the exclusion of the rules of this Convention.

Q. How much insurance cover is required?  
To cover liability under this Convention in an amount equal to the limits of liability under the applicable national or international limitation regime, but in all cases not exceeding an amount calculated in accordance the Convention on Limitation of Liability for Maritime Claims, 1976, as amended.

Q. What is the time period allowed to recover costs under this Convention?
Rights to recover costs under this Convention shall be extinguished unless an action is brought hereunder within three years from the date when the hazard has been determined in accordance with this Convention. However, in no case shall an action be brought after six years from the date of the maritime casualty that resulted in the wreck. Where the maritime casualty consists of a series of occurrences, the six-year period shall run from the date of the first occurrence.

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