Arnold Van Steenderen, Van Steenderen Mainport Lawyers, Rotterdam
The Nairobi International Convention on the Removal of Wrecks (“the Convention”) was adopted in Nairobi, Kenya in 2007. The Convention enters into force twelve months after ratification by ten states and since Denmark became the tenth state to ratify on 14 April 2014, the Convention will enter info force on 14 April 2015. The states which have ratified the Convention are at present: Bulgaria, Congo, Denmark, Germany, India, Iran, Malaysia, Morocco, Nigeria, Palau and the United Kingdom. The Dutch minister of Infrastructure and Environment has indicated to the members of the Dutch Parliament that the Netherlands intend to ratify the Convention in 2014. The Convention will place financial responsibility for the removal of certain hazardous wrecks on ship-owners, making insurance, or some other form of financial security compulsory. The compulsory insurance regime of Article 12 of the Convention will be based upon the system which is already to be found in other IMO Liability Conventions, including a requirement for state-issued certificates for vessels of 300 GT or more. The P&I Clubs which form the International Group will be able to issue so called ‘blue cards’ which enable members to obtain the Wreck Removal Convention Certificates which must be carried on board in order to comply with compulsory insurance requirements of the Convention.
The Convention will apply to the exclusive economic zone of a State Party, established in accordance with international law or, if a State Party has not established such a zone, an area beyond and adjacent to the territorial sea of the state determined by that state in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured. At present states may have their own legislation to deal with wreck removal and the Convention makes an attempt to harmonize the criteria that may be taken into account when deciding whether a shipwreck should be removed, ranging from the type, size and construction of the wreck and the depth of the water to the proximity of shipping routes. Measures taken by the affected state in accordance with the Convention shall be proportioned to the hazard a wreck poses. The measure shall not go beyond what is reasonably necessary to remove a wreck which poses a hazard and shall cease as soon as the wreck has been removed. A State Party may extend the application of the Convention to wrecks located within its territorial waters as well. The registered owner of a vessel that has become a wreck shall be liable for the costs of locating, marking and removing the wreck under articles 7, 8, and 9, respectively, unless the registered owner proves that the maritime casualty that caused the wreck:
- resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character;
- was wholly caused by an act or omission done with intent to cause damage by a third party, or;
- 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.
Nothing in the 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. To the extent that measures under the Convention are considered to be salvage under applicable national law or an international convention, such law or convention shall apply the questions of the remuneration or compensation payable to salvors to the exclusion of the rules of the Convention.