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“SHIPS ON THE ROCKS” The Nairobi International Convention on the Removal of Wrecks, 2007

“SHIPS ON THE ROCKS” The Nairobi International Convention on the Removal of Wrecks, 2007. Mark A.M. Gauthier, General Counsel Maritime Law Secretariat Transport Canada Legal Services. Maritime Symposium 2008. FUNDAMENTAL PREMISE.

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“SHIPS ON THE ROCKS” The Nairobi International Convention on the Removal of Wrecks, 2007

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  1. “SHIPS ON THE ROCKS” The Nairobi International Convention on the Removal of Wrecks, 2007 Mark A.M. Gauthier, General Counsel Maritime Law Secretariat Transport Canada Legal Services Maritime Symposium 2008

  2. FUNDAMENTALPREMISE • States, especially those bordering on major navigational lanes, expressed serious concerns about a lack of clear authority in international law to intervene on wrecks in their EEZ, where the wreck is only an obstacle to navigation without also posing a threat to the environment or related interests of the States

  3. The adoption of a binding international instrument consistent with the principles of UNCLOS and with customary international law was perceived as the solution to the problem

  4. THE GENESIS OF THE CONVENTION • The subject of wreck removal first appeared on the agenda of the Legal Committee in 1972 at the instance of Liberia and the Comité Maritime International (CMI) • Following the completion of priority work mandated by the IMO Governing Bodies over the years culminating with SUA (2005) the Legal Committee reverted to work in earnest on wreck removal, building on the efforts of the UK, Netherlands and Germany that spearheaded continuing work on this project

  5. The work culminated in the adoption of the Nairobi International Convention on the Removal of Wrecks, 2007 (the Convention) by a diplomatic conference on 18 May 2007

  6. THE EVOLUTION OF THE CONVENTION: DYNAMICS OF COMPETING NATIONAL INTERESTS There were two main issues of principle debated at the Legal Committee and at the diplomatic conference: 1. What should be the geographic scope of application? Opinion was divided between States that favoured: • a Convention that applies only to the EEZ of a State Party

  7. a Convention that applies mandatorily to the EEZ of a State Party and “optionally” to a State Party’s territory including the territorial sea • mandatory application to both the EEZ and the territory including the territorial sea of a State Party

  8. 2. To which wrecks should the Convention apply? • some States considered that the Convention should apply only to wrecks that pose a danger or impediment to navigation • other States were of the view that the Convention should also apply to wrecks that pose a threat that could result in major harmful consequences to the marine environment or damage to the coastline and related interests

  9. THE BASIC SCHEME OF THE CONVENTION Fundamental proposition An Affected State may take measures to remove a wreck that constitutes a hazard in the Convention Area

  10. Meaning of a few key words • “Affected State”: means • a State Party in whose Convention Area the wreck is located • “Convention Area”: means • the EEZ of all States Parties and • in addition to the EEZ, the territory including the territorial sea of any State Party that has elected to extend the scope of application of the Convention to those areas

  11. “Wreck”: means • a sunk or stranded ship or part of it, an object that is or was on board and a derelict ship (provided that it is not under salvage assistance) • “Hazard”: means any condition or threat that • poses a danger or impediment to navigation; OR • may reasonably 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

  12. How does the scheme operate? • In particular the Affected State shall: • mark the location of the wreck • inform the State of the ship’s registry and owner of the wreck • require the owner to remove the wreck within a reasonable deadline, failing which the Affected State may remove it at the owner’s expense (expenses would include the cost of locating and marking the wreck)

  13. Insurance Requirements • Every ship of a State Party, 300 gross tonnage and over, must have insurance* to the limit of liability for wreck removal as set out in national law but not exceeding the upper limit set in the Convention on Limitation of Liability for Maritime Claims, 1976, as amended *Or other financial security

  14. Ships of non-States Parties are prohibited from calling at or leaving a port or offshore facility without such insurance • Insurance must be in a form that permits direct action against the provider thereof

  15. OTHER PROVISIONS OF INTEREST Liability of shipowner • The shipowner is liable for the costs of locating, marking and removing wrecks subject to the applicable national regime of liability for wreck removal

  16. Time Bar • Rights to recover are extinguished if action is not taken within three years after the hazard is determined but in no case beyond six years after the casualty that caused the wreck

  17. Entry into force • The Convention enters into force twelve months after ten States have agreed to be bound by it THE END

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