Wrecks and the Law

Prof. Michael (Mikis) TsimplisInstitute of Maritime Law (Director)University of Southampton

Ships and Wrecks

� No generally accepted definition of ship in international law� UNCLOS uses vessel and ship interchangeably � It follows that there is no general definition of wreck in international law

� 2007 Nairobi Wreck Removal Convention� “The Wreck Hazard Removal Convention”

� National Law UK:� “wreck” includes jetsam, flotsam, lagan and derelict found in or on the shores of the sea or any tidal water.

Ships and Wrecks

� Law of Salvage

� When value of property higher than recovery costs

� The Salvage Convention 1989

� Wreck law

� When value of property lower than recovery costs OR

� When archaeological / cultural value

� War graves

Jurisdictional rights

R.R. Churchill and A.V. Lowe, 1999

- States do not have the power to interfere with a wreck outside its territorial waters in the general case

- The taxpayer is likely to pay the bill

Types of Wrecks and problems� Archaeological

� Preservation vs commercial exploitation

� 2001 Convention on the Protection of the Underwater Cultural Heritage (51 States, In force since 2009)

� More than 100 years underwater

� Pollution + Navigational Risks

� Territorial sea

� EEZ (UNCLOS + Wreck Removal Convention)

� High Seas (Flag state)

� War Graves

� Territorial Sea

Environmental HazardUNCLOS ART.221

� Measures to avoid pollution arising from maritime casualties� 1. Nothing in this Part shall prejudice the right of States, pursuant to

international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences.

� 2. For the purposes of this article, "maritime casualty" means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo.

� NO EQUIVALENT PROVISION FOR NAVIGATIONAL HAZARD

Wreck Removal Convention

� Jurisdiction to contracting States to remove the navigational and environmental hazards from wrecks in the EEZ

� Ensure payment for this action

� In my view the first has retrospective effect the second not.

Problem of International Law

� Application to ALL WRECKS or to WRECKS REGISTERED IN CONTRACTING STATES?� The Law of the Sea Convention does not recognise such rights to the coastal States in their EEZ for navigational risks

� Will it become a norm of customary international law?

� Is the extension of the contracting state’s jurisdiction retrospective

Who pays for pollution damage from wrecks?

� Oil Tankers (eg CLC /OPA 1990)

� Registered shipowner and his P&I Club

� Strict liability with exceptions, limited, compulsory insurance and direct action against the insurer

� Second and third tiers of compensation available

� Importers of oil

Who pays for pollution damage from wrecks?

� Bunkers from non-tankers (Bunker Pollution Convention)

� Registered shipowner/manager/operator and his P&I Club

� Strict liability with exceptions, compulsory insurance and direct action against the insurer

� Limitation rights as available under national law

Who pays for pollution damage from wrecks?

� Hazardous and noxious substances (HNS, 2010 not yet in force)

� Registered shipowner and his P&I Club

� Strict liability with exceptions, limitation of liability, compulsory insurance and direct action against the insurer

� Second tier available

� Importers of HNS goods

BUT� Not applicable to war ships

� Time bars of up to 3-6 years for CLC and Bunkers Pollution Convention, 3-10 years for HNS

� These cover pollution damage NOT wreck removal

Exceptions to liability� (a) the damage resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character; or

� (b)the damage was wholly caused by an act or omission done with the intent to cause damage by a third party; or

� (c) the damage 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

� For HNS: also where the shipper does not give information on HNS character

� Insurer can also avoid for wilful misconduct by the shipowner.

Other Legislation

� European Liability Directive

� Directive 2004/35/EC extended to all EU waters by Art.38 of Directive 2013/30/EU

� European Wastes Directive

� Directive 75/442/EEC

� C-188/07 Commune de Mesquer v Total,

� National Laws

� Criminal and civil liability

Limitation of liability� Shipowners generally have such right

� The International Convention LLMC 1976 as amended gives options to contracting states to exclude limitation rights in relation to wreck removal

ISU Salvage Statistics 2014

Evidence of a shifting norm?Fewer accidents but:

Hazardous wrecks?

� Wreck removal Convention

� Very broad criteria bound to lead to different national standards

� Political pressure

� National Laws� Arbitrary

The practical problems

● No standardised methodology for wreck removal

● States may introduce criminal liability forcing wreck removal indirectly

● Alternatively, laws regarding environmental protection may be used as legal bases to force removal of wrecks

Some general (academic) points

� Is a ship in itself a pollutant?

� Is its decomposition altering the local and surrounding marine environment?

� Is it correct to look at impacts of individual wrecks especially in semi-enclosed seas?

� Should all wrecks be removed as a matter of principle?

� Wreck removal has environmental impacts too as well as wreck recycling- shouldn’t we be moving to integrated EIAs?

The Future ?

� We can see them

� We can get to them

� We can get them out

� Shall we? Who will pay? Does it make environmental sense?