The Nairobi International Convention on the Removal Wrecks entered into force in 14 April 2015.
The Convention placed financial responsibility for the removal of certain hazardous wrecks on shipowners, making insurance, or some other form of financial security, compulsory.
It provides a strict liability regime for the removal of hazardous wrecks in Exclusive Economic Zones, with states able to pursue owners for compensation when forced to carry out remedial measures themselves.
It make shipowners financially liable and require them to take out insurance or provide other financial security to cover the costs of wreck removal. It will also provide States with a right of direct action against insurers.
Articles in the Convention cover:
- Reporting and locating ships and wrecks - covering the reporting of casualties to the nearest coastal State; warnings to mariners and coastal States about the wreck; and action by the coastal State to locate the ship or 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 ships and wrecks - which sets out when the shipowner is responsible for removing the wreck and when a State may intervene;
- Liability of the owner for the costs of locating, marking and removing ships and wrecks - the registered shipowner is required to maintain compulsory insurance or other financial security to cover liability under the convention.
How the Convention works
If a ship is involved in a maritime casualty and becomes a wreck within a state’s EEZ, the master or the ship’s operator must report it without delay to the affected state.
A “wreck” may include, amongst other things, drifting ships (if measures are not in hand to assist them) and floating debris. An assessment by an affected state that a wreck poses a navigational or major environmental hazard triggers the Convention’s provisions.
Once a hazard is declared, states have powers to locate and mark wrecks, warn mariners and “facilitate the removal of wrecks”.
Shipowners and their insurers can take some comfort from the fact that the Convention provides that owners may contract with whichever contractor they choose, and that if measures are in hand then states may do no more than set “a reasonable deadline in writing” for removal.
Other features
The Convention imposes a strict liability on shipowners for the costs of locating, marking and removing wrecks, with only the narrow exceptions of Although tonnage limitation regimes will still apply, this will often not help owners because most states do not include wreck removal within their limitation regime.
The Convention also provides that all ships over 300 GT must carry insurance up to the limits of the 1996 Protocol to the London Convention on tonnage limitation and provides for direct action against insurers up to this limit.
This will allow states to recover at least some costs even when vessels belonging to single ship companies with no other assets are wrecked. Ships must also obtain certificates to prove their insurance cover and the UK, Germany, Denmark, Liberia and the Marshall Islands are taking the lead in issuing certificates to ships flagged in countries that are not parties to the Convention.
The International Group of P&I clubs have all agreed to issue “Blue Cards”, which demonstrate that ships have the cover mandated by the Convention and thus allow them to apply for the required certificate.
To balance the heavy obligations placed on shipowners, the Convention also provides that measures taken by states shall be proportionate to the hazard, and “shall not unnecessarily interfere with the rights and interests of other States including the State of the ship’s registry, and of any person, physical or corporate, concerned”.
Significance of the Convention
Where it applies, the Convention may lead to owners being able to take a more assertive approach when faced with a wreck removal situation. Although questioning the decisions of state bodies through judicial review or the administrative courts is often an uphill struggle, the Convention gives clear grounds for resisting unreasonable actions taken by states. The strict liability regime may also help to reduce the number of wrecks that occur in the first place by encouraging states to provide ports of refuge rather than turn ships away, because they will be more likely to provide refuge when they are confident that someone will pay if they do become wrecks.
