Klaus Ramming describes the scope of the WRC, which internationally unifies the owner’s liability for damages arising from the operation of a ship
The Nairobi International Convention on the Removal of Wrecks 2007 (WRC) will enter into force on 14 April 2015, after[ds_preview] Denmark, as the tenth contracting state, declared the ratification on 14 April 2014. The state parties are Bulgaria, Denmark, Germany, India, the Islamic Republic of Iran, Malaysia, Morocco, Nigeria, Palau, and the United Kingdom. Other states are expected to follow shortly. It is quite remarkable how quickly the convention has come alive within a relatively short period of time since it was agreed upon in Nairobi on 18 May 2007.
In many respects the WRC corresponds to other liability conventions such as the International Convention on Civil Liability for Oil Pollution Damage 1992 (CLC 1992), the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (Bunker Oil Convention), and the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996 (HNS Convention, not yet in force). However, the WRC goes beyond these conventions.
Although it is not expressly addressed in the WRC, one of the principal purposes of the convention is to establish and clarify the rights of the coastal states in relation to the removal of wrecks outside of their territory, i.e. outside of the territorial sea, within the coastal state’s exclusive economic zone and thus in an area where the coastal state has only limited powers (see Art. 55 et seq. of the United Nations Convention on the Law of the Sea / UNCLOS). In fact, the WRC rests and is built on UNCLOS, as the repeated references to UNCLOS in the WRC’s preamble and in a number of articles confirm. The WRC seeks to settle the potential conflict between the flag state’s protection of the ship (or wreck) and the coastal state’s interests to have the wreck removed.
Remarkably, however, is that there is no requirement in the WRC that the ship (or the wreck) flies the flag of a contracting state. And given the limited number of contracting states, any affected state would normally apply the WRC against ships sailing under the flag of non-contracting states.
Geographical scope of application
The WRC applies to wrecks located within the convention area (Article 3.1). The convention area is defined in Article 1.1 as the exclusive economic zone of a state party or, alternatively, if the state party has not established an exclusive economic zone, as a corresponding area beyond the territorial sea of that state. In principle, the WRC is not applicable in the territorial sea of a contracting state. Here, the coastal state has full sovereignty with regards to wrecks which are subject to the national law. Therefore, the coastal state’s rights regarding wrecks may deviate if the wreck is located in the territorial sea or inner waters as compared to the exclusive economic zone.
However, under Article 3.2 WRC, a state party may extend the application of the convention to wrecks located within its territory, including the territorial sea (»opt-in«). Declarations to this effect have been made by Bulgaria and the United Kingdom. The convention area, as per Article 1.1, therefore includes the Bulgarian and the United Kingdom’s territorial sea. However, the WRC provides for certain reservations if it is applied in the territorial sea of a contracting state (see Article 4.4).
Application to wrecks
The concept of a wreck under WRC is broader than one would normally expect. According to Article 1.4, wrecks include sunken or stranded ships or any part of such a ship, including any object that is or has been on board. This would include packed cargo such as containers but not liquids such as oil carried as cargo, for example, or the ship’s fuel oil.
The Wreck Removal Convention also applies to any objects that are sunken, stranded or adrift at sea or if they have been lost at sea from a ship. In practice, quite a number of containers have been lost in bad weather. If they remain afloat, perhaps barely visible, they can prove to be a serious hazard to other ships. If these lost units are adrift within the exclusive economic zone of a state party of the WRC, the convention provides that the affected coastal state may take the necessary steps, ultimately at the cost of the registered owner of the vessel from which the containers were lost. Finally, the convention also applies to ships which are reasonably expected to sink or strand.
The ship, the part of a ship or the respective object only constitutes a wreck if the relevant situation is the result of a maritime casualty (see Article 1.4). As per Article 1.3, this includes a collision of ships, stranding or other incident of navigation, or any other occurrence on board a ship or external to it, resulting in material damage or imminent threat of material damage to a ship or its cargo.
Affected state vs. registered owner
One of the aims of the WRC is to determine which state should take the lead as far as the removal of the wreck is concerned. That state is the »affected state« as defined in Article 1.10 WRC. The affected state is the state in whose convention area, i.e. exclusive economic zone, or, in case of an »opt-in«, territorial sea is located. Other states, whether contracting states or not, will only play a minor role. The identity of the affected state may change if the wreck moves from the convention area of one state to the convention area of another state. The opposite of the affected state is the »registered owner«, i.e. the person registered as the owner of the vessel or, in absence of registration, the person owning the ship at the relevant time (Article 1.8 WRC). It is the registered owner who is liable for the removal of the wreck and any costs which the affected state may incur in this respect. The WRC does not provide for the liability of other parties such as the charterers or the manager of the ship.
Hazard determination
The linchpin of the WRC is the formal declaration made by the affected state that the wreck constitutes a hazard. Article 6 lists a number of criteria which shall be considered by the affected state when making that determination. The most important consequence of such a determination is the fact that the registered owner will thereafter be obliged to remove the wreck (see Article 9.2 WRC). The determination made by the affected state may be subject to judicial review under national law. In Germany, a determination of this kind would be considered in an administrative act which may be challenged under the relevant principles of administrative law. However, it should be noted that it follows from the concept of the WRC that the affected state has a certain scope for evaluation. As a matter of German administrative law, the courts would have very limited rights to interfere in this respect and would only be allowed to verify whether the administration observed the limits of its discretional powers and executed its discretion in a reasonable manner.
Reporting, marking and locating of wrecks
As per Article 5, the state parties shall require the masters and the operators of ships flying their flag to report to the affected state without delay upon their ship being involved in a maritime casualty resulting in a wreck. Under Article 7.1, upon becoming aware of a wreck, the affected state shall use all practicable means to warn mariners and the states concerned of the wreck as a matter of urgency. If the wreck poses a hazard, the affected state shall seek to establish the precise location of the wreck. If the affected state determines that a wreck constitutes a hazard, that state shall ensure that all reasonable steps are taken to mark the wreck.
Removal of the wreck
If the affected state determines that the wreck constitutes a hazard, the registered owner will have a duty to remove the wreck (Article 9.2 WRC). The registered owner must take all necessary steps to achieve this. He may contract with a salvor or any other person of his choice to remove the wreck. The affected state’s rights to stipulate conditions for such removal are restricted. It may only do so 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 (Article 9.4 WRC). Also, once the removal of the wreck has commenced, the affected states’ rights to intervene are limited in the same manner (Article 9.5 WRC).
However, if the registered owner fails to remove the wreck before the deadline set by the affected state, or if the affected state is unable to contact the registered owner, the affected state may take the necessary steps to have the wreck removed by the most practical and expeditious means available, consistent with considerations of safety and protection of the marine environment (Article 9.7 WRC).
Independent of this, in circumstances where immediate action is required, the affected state may immediately take the necessary steps to remove the wreck, again by the most practical and expeditious means available, consistent with considerations of safety and protection of the marine environment (Article 9.8 WRC).
The registered owner’s liability
Under Article 10.1 WRC the registered owner is liable for the costs of locating and marking the wreck as well as for its removal (unless this was carried out by the registered owner himself as contemplated in Article 9.2). The registered owner’s liability is only excluded in limited circumstances, i.e. if they resulted from an act of war or a natural phenomenon, if it was caused by a terrorist attack or by negligence of any authority responsible for the maintenance of navigational lights. This catalogue of exceptions corresponds with other conventions such as CLC 1992, the Bunker Oil Convention or the HNS Convention. Article 10.2 WRC clarifies that the registered owner’s right to limit liability for the costs of locating, marking and removing the wreck, e.g. under the Convention on Limitation of Liability for Maritime Claims 1976 (LLC), as amended, shall remain unaffected.
Article 11 WRC clarifies that other liability régimes such as CLC 1992, the HNS Convention and the Bunker Oil Convention shall take precedence over the WRC. Likewise, if the measures taken to remove the wreck are considered to be salvage, questions of remuneration or compensation shall be subject to the applicable salvage law.
Compulsory insurance
In line with corresponding provisions in other conventions such as the CLC 1992, the Bunker Oil Convention and the HNS Convention, Article 12.1 WRC requires the registered owner of a ship of 300 gt and above flying the flag of the state party to maintain insurance cover (or an equivalent) in respect of his liability under WRC. The insurance should cover an amount equal to the limits of liability under the applicable law, but not exceed an amount calculated in accordance with LLC 1996, as amended. The fact that an insurance is in force must be confirmed in a formal insurance certificate (Article 12.2-4 WRC). This document is issued by the state of the ship’s registry, if the ship is registered in a state party.
In other cases, the certificate is issued by the respective authorities of any state party. Certificates issued by a state party are recognized by all other state parties (Article 12.9 WRC). Any claims for costs arising under WRC may be brought directly against the insurer (Article 12.10 WRC). The state parties shall require all ships of 300 gt or above, even if not registered in a state party, which enter or leave a port in its territory or arrive at or leave from an offshore facility in its territorial sea, to have an insurance in force in respect of wreck removal liability under WRC (Article 12.12).
Conclusion
The WRC is a further step to internationally unify the shipowner’s liability for damages arising from the operation of a ship. After CLC 1992 and the Bunker Oil Convention, the WRC now covers another type of risk related to ships. Once the HNS Convention is added to the catalogue, the system of shipowner’s liability will be complete.
Klaus Ramming
