Nairobi International Convention on the Removal of Wrecks
The Convention was adopted by an international conference held in Nairobi, Capital of Kenya, in 2007. It entered into force in 2015.
The Convention provides the legal basis for States to remove, or have removed, shipwrecks that may have the potential to affect adversely the safety of lives, goods and property at sea, as well as the marine environment.
The Convention provides the first set of uniform international rules aimed at ensuring the prompt and effective removal of wrecks located beyond the territorial sea.
Although the incidence of marine casualties has decreased dramatically in recent years, the number of abandoned wrecks worldwide has reportedly increased and, as a result, the problems they cause to coastal States and shipping in general have become more acute. The problems faced by Coastal States with respect to these wrecks are three-fold:
- Depending on location, a wreck may constitute a hazard to navigation,
potentially endangering other vessels and their crews. - Depending on the nature of the cargo, a wreck may cause substantial
damage to the marine and coastal environments. - The issue of the costs involved in the marking and removal of hazardous
wrecks.
The Nairobi Wreck Convention attempts to resolve all of these and other, related, issues.
The Convention makes the ship owners financially liable and requires them to take out insurance or provide other financial security to cover the costs of wreck removal. It also provides the States with a right of direct action against insurers.
The Convention applies to all wrecks in the ‘Convention Area’. This Convention shall not apply to any warship or other Government owned ships used only on Government noncommercial service, unless that State
decides otherwise.
The various ‘Articles’ in the Convention cover:
- Reporting and locating ships and wrecks – covering the reporting of casualties to the nearest coastal State; warnings to mariners and coastal States about the wreck; and action by the coastal State to locate the ship
or wreck; - Criteria for determining the hazard posed by wrecks, including depth of water above the wreck, proximity of shipping routes, traffic density and frequency, type of traffic and vulnerability of port facilities.
- Environmental criteria such as damage likely to result from the release into the marine environment of cargo or oil.
- Measures to facilitate the removal of wrecks, including rights and obligations to remove hazardous ships and wrecks – which sets out when the shipowner is responsible for removing the wreck and when a State
may intervene. - Liability of the owner for the costs of locating, marking and removing ships and wrecks – the registered shipowner is required to maintain compulsory insurance or other financial security to cover his liability
under the convention. - Settlement of disputes.
DEFINITIONS:
“Convention area” means 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 the territorial sea not extending more than 200 nautical miles from the baseline.
“Maritime casualty” means a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to it, resulting in material damage or threat of material damage to a ship or its cargo.
“Wreck”, following upon a maritime casualty, means
- a sunken or stranded ship or any part of it, including any object that is or has been on board such a ship
- any object that is lost at sea from a ship and that is stranded, sunken or adrift at sea
- a ship that is about to sink or strand, or may do so, where effective measures to assist the ship or any property in danger are not already being taken.
REPORTING WRECKS
A State Party shall require the Master or the operator of a ship flying its flag to report to the Affected State without delay when that ship has been involved in a maritime casualty resulting in a wreck.
Such reports shall provide the name and the principal place of business of the registered owner and all the relevant information necessary for the Affected State to determine if the wreck poses a hazard. This includes,
- the precise location of the wreck
- the type, size and construction of the wreck
- the nature of the damage and condition of the wreck
- the nature and quantity of the cargo, in particular any hazardous and noxious substances
- the amount and types of oil, including FO, DO and LO on board.
DETERMINATION OF HAZARD
When determining whether a wreck poses a hazard, the following criteria should be taken into account by the Affected State:
a) The type, size and construction of the wreck
b) Depth of the water in the area
c) Tidal range and currents in the area
d) If area is a PSSA or a clearly defined EEZ
e) Proximity of shipping routes or established traffic lanes
f) Traffic density and type of traffic
g) Nature and quantity of the wreck’s cargo, the amount and types of oils on board the wreck and danger to marine environment
h) Vulnerability of port facilities
i) Prevailing meteorological and hydrographical conditions
j) Height of the wreck above or below the surface of the water at lowest astronomical tide
k) Proximity of offshore installations, pipelines, telecommunications cables and similar structures
l) Any other circumstances that might necessitate the removal of the wreck.
LOCATING WRECKS
Upon becoming aware of a wreck, the Affected State shall use all practicable means to warn mariners and the States concerned of the nature and location of the wreck as a matter of urgency.
If the Affected State has reason to believe that a wreck poses a hazard, it shall ensure that all practicable steps are taken to establish the precise location of the wreck.
MARKING OF WRECKS
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.
In marking the wreck, all practicable steps shall be taken to ensure that the markings conform to the internationally accepted system of buoyage in use, in the area where the wreck is located.
The Affected State shall broadcast the particulars of the marking of the wreck by use of all appropriate means, including the appropriate nautical publications.
MEASURES TO FACILITATE THE REMOVAL OF WRECKS
If the Affected State determines that a wreck constitutes a hazard, that State shall immediately inform the State of the ship’s registry and the registered owner. It shall consult the State of the ship’s registry and other States affected by the wreck regarding measures to be taken in relation to the wreck.
The registered owner shall remove a wreck determined to constitute a hazard.
The registered owner, or other interested party, shall provide the competent authority of the Affected State with evidence of insurance or other financial security as required.
The registered owner may contract with any salvor or other person to remove the wreck on his behalf. Before such removal commences, the Affected State may lay down conditions for such removal w.r.t. safety and
protection of the marine environment.
The Affected State shall set a reasonable deadline and inform the Owner about this in writing. The registered owner must remove the wreck within this deadline. If the registered owner does not remove the wreck within
that deadline, the Affected State may remove the wreck at the registered owner’s expense.
In circumstances where immediate action is required, the Affected State may remove the wreck himself by the most practical and speedy means available, consistent with considerations of safety and environmental
protection.
LIABILITY OF THE OWNER
The owner shall be liable for the costs of locating, marking and removing the wreck, unless he proves that the maritime casualty that caused the wreck was due to the following circumstances:
a) Act of God
b) Act of War, hostilities, civil war, etc.
c) Act done by a Third Party with intent to cause damage
d) Negligence of Government or other authority responsible for the maintenance of lights or other navigational aids
e) If liability conflicts with the following convention,
f) CLC Convention
g) HNS Convention
h) CLC Bunker Convention
i) Vienna Convention on Civil Liability for Nuclear Damage
j) Convention on third party liability in the field of nuclear energy.
The registered owner shall be able to limit his liability under any applicable national or international law, such as the LLMC.
This convention shall not apply to compensation payable to salvors if the work done by them is considered to be Salvage under National or International law.
COMPULSORY INSURANCE OR OTHER FINANCIAL SECURITY
A ship of 300 GT and above is required to maintain insurance or other financial security, such as a guarantee of a bank, to cover liability under this Convention.
Flag State shall issue a certificate to the ship attesting that the above requirement is complied with. The certificate must be in the prescribed form and must contain the following particulars:
a) Name of the ship, distinctive number or letters and port of registry
b) Gross tonnage of the ship
c) Name and principal place of business of the registered owner
d) IMO number
e) Type and duration of security
f) Name and principal place of business of insurer / person giving security
g) Period of validity of the certificate, which shall not be longer than the
period of validity of the insurance or other security.
Flag State may authorize RO to issue this certificate. The certificate shall be carried onboard, and a copy must be with the ship’s Registrar.
Claims may be brought directly against the insurer, who can appeal that the casualty was caused due to willful misconduct of the Owner.
Port State shall check that the insurance is in force before the ship enters or leave the port.
TIME LIMITS
Rights to recover costs under this convention shall be extinguished unless action is brought within 3 years after the hazard was determined.
Action cannot be brought after 6 years from the date of casualty.
