The Wreck Removal Convention
70. The current arrangements for dealing with wrecked
ships are set out in the 1995 Act. Clause 15 of the draft Bill
includes provisions to implement the Nairobi International Convention
on the Removal of Wrecks (ICRW) 2007 by inserting new sections
255A to 255U into that Act. The purpose of the Convention is to
provide a uniform legal basis for State Parties to locate, mark
and remove, or have removed, wrecks that pose a hazard to navigation
or the marine environment. The Convention imposes a strict liability
on the registered owner of the ship for the costs of locating,
marking and removing the wreck and contains provisions to assist
a State Party in recovering from the shipowner such costs if necessary.
The Government says that the Convention will "fill a gap"
in the existing international liability framework and proposes
to ratify it as soon as is practicable. The Department highlights
three recent wrecks—the Cita, the Lagik and
the MSC Napoli—where, had the convention been in
force, the owners would have been liable for the removal of the
wrecks and substantial sums of public money could have been saved.[97]
71. If and when the Convention enters into force
internationally, its liability provisions will apply in respect
of all ships entering UK ports, harbours and terminals or operating
in UK waters. All ships of 300 gross tonnage and above will be
required to have insurance against the costs of wreck removal
(the Chamber of Shipping is not aware of any UK-registered ships
of over 300 gt that do not already have such insurance). The Convention
will only come into force one year after ten States have ratified
or acceded to it. So far one State has ratified and the Government
anticipates that it could be up to five years before the required
number of signatures is reached.[98]
72. It is proposed that the UK's Convention Area
should be broadly similar to the Pollution Control Zone[99]
In addition, the Government proposes to include the UK's territory
and territorial sea in the Convention Area, using the option available
to States under the Convention. Our witnesses expressed support
for the UK's ratification of the Convention (and the proposal
to extend its provisions to the UK's territorial sea). The Chamber
of Shipping called it an "integral element of the mosaic
of liability arrangements covering international shipping."[100]
73. We welcome the International Convention on
the Removal of Wrecks and support the UK's ratification of it
and the provisions for its implementation contained in the draft
Bill. The Government should do what it can to encourage other
States to sign the Convention in order that it might be brought
into force as soon as possible.
74. Sections 252 and 253 of the 1995 Act give harbour
authorities, conservancy authorities and the General Lighthouse
Authorities powers to locate, mark and remove a wreck if it is
an obstruction or danger to navigation. The costs of exercising
these powers may be recovered by selling the vessel and any other
property recovered. If there is no such sale, the authority may
recover the costs of dealing with a wreck from its owner. As a
last resort, if costs are not recoverable, they are paid out of
the General Lighthouse Fund. Clause 15 would amend the 1995 Act
to allow the Secretary of State to direct the above authorities
to locate and mark a wreck (section 255C) or to remove a wreck
(section 255F), if it has not been removed as required by a wreck
removal notice by its owner. The Secretary of State's powers would
be exercised by the Secretary of State's Representative for Maritime
Salvage and Intervention, known as SOSREP, in such
circumstances.
75. The General Lighthouse Authorities emphasised
the importance of their being able to mark wrecks quickly to prevent
collisions.[101] Mr
Glass pointed out that SOSREP tends to concentrate on the protection
of the marine environment and would probably not be concerned
with a wreck of a small craft in the estuary to a port, for example,
even though such a wreck might require expeditious marking. We
heard the suggestion of a concern that the power of SOSREP to
direct the General Lighthouse Authorities could interfere with
their powers under the 1995 Act.[102]
Mr de Halpert was also concerned about increased bureaucracy:
Having established the wreck, guarded it and
marked it we are generally the best authority to know how to deal
with it in its removal and therefore it is seamless operation
from beginning to end without layers of delegation getting in
the way.[103]
The General Lighthouse Authorities told us that they
are still in discussions with the Department as to how their existing
powers fit with the new proposals, which could mean that SOSREP
becomes, in effect, the arbiter of what is a hazard to navigation.[104]
76. The Chamber of Shipping asserts that, while it
is right that the General Lighthouse Authorities should be responsible
for marking wrecks, they are not necessarily the appropriate bodies
to undertake removal:
There is [...] no logic for offloading the task
of removing wrecks and flotsam to the GLAs, who have no ability
to do the work themselves and would therefore have to subcontract
it to a specialist salvage contractor. It would appear to be more
satisfactory for the Crown to engage specialist contractors directly
[…][105]
77. The Government maintains that the power for the
Secretary of State to direct authorities is necessary in order
that they are acting on behalf of the State when they are taking
action under the Convention. The Department's Head of Maritime
Liability, Compensation and Law, Mr Bolomini, added such a power
would ensure that SOSREP remains "in overall command and
control on matters of salvage and intervention".[106]
SOSREP would also retain the option of engaging a specialist salvor
to deal with a wreck rather than directing a General Lighthouse
Authority to do so.[107]
78. The proposed powers for the Secretary of State
to direct authorities to locate, mark and remove wrecks appear
to be necessary in order that these activities are undertaken
on behalf of the State, as required by the Wreck Removal Convention.
These new powers for the Secretary of State to direct General
Lighthouse Authorities to deal with wrecks should not be used
in circumstances where the removal of the wreck would previously
have been carried out by SOSREP or some other agency. If authorities
are not properly equipped to remove large wrecks, for example,
they should not be directed to do so if this would simply require
them to contract a third party to undertake the work.
79. It is crucial that, through discussion with
the authorities, the Government ensures that their existing ability
to mark wrecks quickly is not compromised by confusion over where
responsibility for decisions lies. There must be no doubt that
a General Lighthouse Authority or other responsible body, may
continue to deal with wrecks which it believes constitute a hazard
to navigation, whether or not they are directed to do so by the
Secretary of State.
80. The Chamber of Shipping is also concerned that
some costs of locating, marking and/or removing a wreck might
eventually fall to shippers through light dues since the draft
Bill provides that costs incurred by a general lighthouse authority
in locating, marking and removing wrecks "shall be paid out
of the General Lighthouse Fund if or to the extent that they are
not recovered [from shipowners]". The Chamber of Shipping
has
grave reservations about the consequences for
light dues payers of the proposals for the Crown to offload its
most onerous obligations under the Convention on to the GLAs[...].
It would be iniquitous to require light dues payers, who will
all have purchased insurance cover for their own ships (by virtue
of their calling at UK ports), to meet irrecoverable costs arising
in respect of other ships whose owners have chosen to remain uninsured.
The Chamber of Shipping and the Independent Light
Dues Forum agree that costs that cannot be recovered from shipowners
should be met by the Government.[108]
81. The Department says the following:
The Convention and Bill impose unlimited liability
for wreck removal and all associated costs on the ship owner and
require wreck removal insurance for ships of 300 or more gross
tonnage. The strict liability and provision for direct action
against insurers are expected to ensure that few claims will be
difficult to take forward. However, the Bill allows for costs
to be paid from the GLF as a fall-back solution to ensure that
GLAs do not lose out. This provision is likely to be used on the
rare occasion when the shipowner has failed in his responsibilities
under the Convention and does not maintain sufficient insurance.[109]
82. If more ships are insured against the costs
of dealing with wrecks, then the risk of such costs eventually
being met by the General Lighthouse Fund will fall. However, if
the General Lighthouse Authorities were to be directed, under
new powers in the Bill, to undertake activities other than those
which they would have undertaken in the past, there is a possibility
that the liability of the General Lighthouse Fund for unrecoverable
costs could increase. This legislation should not be used by the
Government to transfer further the financial risk resulting from
uninsured ships to other shippers through the General Lighthouse
Fund.
Marking of wrecks
83. Clause 16 of the draft Bill amends sections 252
and 253 of the 1995 Act so as to provide for the electronic marking
of wrecks electronically, by "the transmission of information
about [their] location". This could speed up the marking
of a wreck by allowing the use of technology such as the Automatic
Identification System (AIS) which would not need to be physically
placed at the wreck site and could describe its position (for
instance, via ships' electronic navigation equipment) without
the need for a physical marker.
84. Mr de Halpert, representing Trinity House, assured
us that non-physical beacons would be very effective as an immediate
response to a requirement to mark a wreck:
getting an electronic message out to say, "clear
this area, this is an exclusion zone" on your radar set,
on your electronic chart display, is a very good first response
whilst we get our [...] wreck-marking buoy-layer out there, in
order to physically mark it and stand guard.[110]
He described the wreck of the Tricolor in
the English Channel in 2002 where, before buoys could be laid,
three other ships hit the wreck within 48 hours: "it was
a sort of multiple pile-up on the M1 if you like".[111]
85. We welcome the provision for the electronic
marking of wrecks in the Bill. This is a sensible move which will
allow those who are responsible for dealing with wrecks to respond
more quickly by taking advantage of modern technology. However,
electronic marking should not be used as a substitute for physical
marking where the latter is required.
97 Cm 7370, p. 94. Back
98
Q234 Back
99
Described in paragraph 52, above, and illustrated at Annex 2. Back
100
Ev 53 Back
101
Q133 Back
102
Q131 Back
103
Q133 Back
104
Q130 Back
105
Ev 54 Back
106
Q235 Back
107
Q 236 Back
108
Ev 37 Back
109
See Annex 1: Schedule of Comments Back
110
Q141 Back
111
A full account of the Tricolor incident and the subsequent
salvage operation can be found at www.tricolorsalvage.com. Back
