「 Wreck Removal 的相關法律及 保險問題 」

1. 「Wreck Removal的相關法律及保險問題」 2009年中華海事檢定社(股)公司內部研習會議 Prepared by Kenneth Chi

2. Preface The key components of this draft text were: 1. the grant of rights to the coastal state to remove a wreck from its EEZ if it was a danger to safe navigation or to the marine environment; 2. strict liability on the shipowner for the costs of reporting, marking and removing a wreck if required to do so by the coastal state; 3. compulsory insurance and direct action against insurers, up to the LLMC Limit, modelled on the equivalent provisions of article VII of the 1969 CLC Convention.

3. I. 2007 Nairobi Convention on ROW/DA. Introduction • for the removal of a wreck, or any wreckage from a ship, to the EEZ • enter into force 12 months after the ratification of 10 States

4. B. An overview of the Nairobi WRC Art.1 Definitions – note • (1) “Convention area” = EEZ – not more than 200 miles from baselines. Art 2. Objectives and General principles • - extends rights of the affected coastal state into the EEZ • - measures must be proportionate to hazard (similar to Art V of 1969 Intervention Convention)

5. Art.4. Exclusions • (1) “…. shall not apply to measures taken under the International Convention ….” Art.10. Liability of the Owner • (2) “….. shall not affect the right of the registered owner to limit liability under nay applicable national or international regime, such as LLMC 1976…” Art. 16 Relationship to other conventions and international agreements • Nothing in this Convention shall prejudice the rights and obligations of any State under UNCLOS, and under the customary international law of the sea.

6. Art.9 Measures to facilitate removal of wrecks • (6a) “set a reasonable deadline within which the registered owner must remove the wreck…” • (10) – the flag state consents to the actions of the affected state in accordance with this Article. Art. 12 Compulsory insurance or other financial security • (1) “….300 gross tonnage and above and flying the flag of a State Party shall be required to maintain insurance or other financial security, such as a guarantee of a bank or ……” Art.13 Time limits • 3 years from determination of hazard or 6 years from date of maritime casualty that resulted in the wreck. • 6-year time limits if maritime casualty consists of a series of occurrences.

7. C. Afterthoughts • The final text does not contain any provision allowing the shipowner or government undertaking removal of a wreck to dispose of the wreckage (e.g. for sale for scrap) to recoup expenses incurred, nor does it allow the shipowner or his club to take credit against such a claim for the net proceeds of such a sale. • Places of Refuge The topic of Places of Refuge is still under discussion in the CMI in the European Union.

8. II. Vessel Owner’s Liability for ROW/DA. Liability under the Wreck Act • Territorial waters • Contiguous zone • The Outer Continental Shelf Lands Act • mobile offshore drilling units (“MODUs”)(appliciable); service vessels (inapplicable)

9. B. Potential liability under tort theories • The owner of a sunken vessel may also face potential liability under tort theories. For example, if the owner of a vessel is negligent and the ship sinks in such a way as to cause damage to a third party, such as by blocking access to an offshore platform, the owner could be liable for the costs of removal. • It is less clear whether a non-negligent vessel owner whose vessel sinks can be held liable to third parties. (1983 “the AQUA SAFARI”), the court held that a non-negligent time charterer did not face liability for the cost of wreck removal.

10. III. Coverage for ROW/DA. Coverage under traditional marine P&I policies • “compulsory by law” • Removal is not compulsory when there is an invalid order, the statute does not apply, or the concerns about civil liability are not reasonable.

11. B. Coverage under “broad form” ROW/D clauses • A typical Energy Package ROW/D clause for an offshore drilling contractor might provide that ROW/D is covered “when removal is compulsory by law, statute or regulation, when required by contract, or when necessary for the Assured’s/Operator’s operations.” • Most drilling contracts at least to some extent require the contractor to remove the debris of the rig. Thus, if the rig sinks on location and the contractor is required to remove it under the drilling contract, the contractor would have coverage for removal as “required by contract.” The broad form coverage would also provide coverage when removal was necessary to continue operations at the site. • It is typical in the offshore industry for ROW/D coverage to be carried under the Physical Damage section of the policy, and coverage is usually limited to 25% of the insured value (which may or may not include Increased Value values).

12. C. Coverage for ROW/D under excess liability policies: square pegs in round holes 1. “liability” • Outside of territorial waters • On the Outer Continental Shelf • Fault – in doubtful 2. “imposed by law” Insurers argue considerable logic that the liability of a mineral lessee is a contractual liability arising under or derived from the mineral lease, not a liability “imposed by law”.

13. 3. “assumed under contract” “liability assumed under contract” (ex. Mineral lessee) ≠ (would not appear to be ) “the tort liability of a third person” ≠ (would not appear to be a liability to indemnify the lessee for ) “the lessee’s tore liability” In sum, mineral lessees may be liable under their leases to remove debris, but this obligation is not an obligation to indemnify the government for the government’s tort liability.

14. 4. “for damage” ROW/D expenses are typically paid by the insured to contractors to remove the wreck or debris, not paid to the inured third person. There are precedents in some areas of law, however, where the courts have given a liberal reading to this term. For example, the courts have held that expenses incurred to mitigate a pollution incident are “damage” within the meaning of liability policies, and the argument could logically be made with respect to ROW/D claim.

15. 5. “an account of property damage” • Question – whose property has been damaged. • Most excess liability policies contain an exclusion for damage to property at the insured. Most liability policies define “property damage” to include “loss of use of tangible property caused by an occurrence”. Accordingly, if the wreck impedes access to a platform, it would appear to fall within this definition. • But what if the wreck is in the open ocean away from any platform?

16. IV. Photo

17. “An Tai”– Port Klang, Malaysia in 1997

19. What is puller ?

20. Two hydraulic rams move a 4” thick steel door that is mounted on a sliding frame. The door pulls 3” (76mm) anchor chain that is attached to the object that is being pulled. Another 4” thick steel door fixed to the frame of the machine holds the chain while the hydraulic rams retract for the next +/-6.5 feet (2 metre) stroke. The rams are powered by hydraulic power packs run through a control valve. Pullers have been used to: • Pull stranded vessels off the beach. • Roll capsized vessels into the upright position in preparation for refloating. • Chain cut a shipwreck into sections for extraction. • Roll 2500+ ton sections of a shipwreck out of the water and up onto the breakwater for scrapping. • Drag sections of a shipwreck up onto the beach for scrapping. • Slide 4000+ ton sections of a submerged wreck onto a submerged barge which was then deballasted to lift the section out of the water. • Vertically lift 3500+ ton sections of a submerged wreck off the seafloor in water depths exceeding 100 feet. • Extract 300 foot sections of a jack up leg penetrated 70 feet into the bottom in 250 feet of water. • Used as a “mooring winch” for a barge in open ocean.

24. Bowstring – Jacksonville, Florida 22/May/2003

25. Coral Bulker – Viana do Castelo, Portugal 26/Dec/2000

27. Galapagos Discovery – Panama Channel 19/Oct/1999

30. M.T. “Kashmir”– Port of Jebel Ali, UAE 10/Feb/2009

31. New Carissa – Coor Bay 4/Feb/1999

34. V. Video As attached

35. VI. Conclusion Bearing in mind the importance of ROW/D, kindly be reminded of “magic numbers” as follows: • 1906 English Marine Insurance Act • 1976 LLMC • 1982 UNCLOS • 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage

36. Issue & Discussion: (1.) Pollutant Maritime Law, article 33-1 & 34: claim against the insurer >>> (ISSUE on wreck in the high seas) <<< the insurer would not appear to be the tort liability : International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (2.) Wreck Maritime Law, article 21-1-3 (owner argue limitation on WRC, wreck =?? pollutant) Marine Pollution Control Act (affected state argue)

37. As long as there is maritime commerce, ship will on occasion go to the bottom in places where the wreck is of some concern to someone. Accordingly, ROW/D is destined to be an issue for shipowners and marine insurers as long as there is maritime commerce.

38. VII. FAQ 一、污染損害賠償責任是否為無過失責任？ • 原告主張海洋污染責任，證明過失不易，為保護海洋資源，應屬無過失責任。 被告則辯稱，無過失即無賠償為侵權行為法則的重要原則，應屬過失責任。 二、船東或責任保險人就污染損害賠償能否主張限制責任？ • 被告船東及責任保險人抗辯，即使渠等應負污染損害賠償責任，依我國海商法第21 條及相關國際公約，得主張限制責任。 原告則主張船東及責任保險人就污染損害賠償，不得主張限制責任。海洋污染造成之損害賠償，非海商法第21 條第1 項各款之損害或債務。 三、船舶殘骸是否屬於污染物，而有海洋污染防治法之適用？ • 原告求返還代墊之船體殘骸移置費用，主張船舶殘骸為污染物，如不移置將造成污染源，移置費用是減少損害之必要支出。 被告則抗辯船體殘骸非污染物，無移除必要。 四、船東就船舶殘骸移除費用，能否主張責任限制？ • 原告主張依我國海洋污染防治法，船東等就海污染本身造成之損害，並無責任限制之規定。 被告則抗辯，即使海污染在國際公約上亦均得主張責任限制。

39. VII. 2007 Nairobi WRC As attached

40. Question • 1.關於Wreck removal，我國相關法律如何規範？(主管官署？wreck如何認定？適用區域？細說相關的責任限制) • 2.試進一步解說BIMCO設計的三種salvage contract, i.e. “WRECK HIRE”, “WRECK FIXED”, & “WRECK STAGE”.