Wreck Removal Prepared by Kenneth Chi2009()

PrefaceThe 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.

I.2007 Nairobi Convention on ROW/DA.Introductionfor 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

B.An overview of the Nairobi WRCArt.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)

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 agreementsNothing in this Convention shall prejudice the rights and obligations of any State under UNCLOS, and under the customary international law of the sea.

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 limits3 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.

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.

II.Vessel Owners Liability for ROW/DA. Liability under the Wreck ActTerritorial watersContiguous zoneThe Outer Continental Shelf Lands Act

mobile offshore drilling units (MODUs)(appliciable); service vessels (inapplicable)

B. Potential liability under tort theoriesThe 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.

III.Coverage for ROW/DA. Coverage under traditional marine P&I policiescompulsory 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.

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 Assureds/Operators 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).

C. Coverage for ROW/D under excess liability policies: square pegs in round holes1.liabilityOutside of territorial watersOn the Outer Continental ShelfFault in doubtful

2.imposed by lawInsurers 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.

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 lessees 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 governments tort liability.

4.for damageROW/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.

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?

IV.Photo

An Tai Port Klang, Malaysia in 1997

What is puller ?

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.

Bowstring Jacksonville, Florida 22/May/2003

Coral Bulker Viana do Castelo, Portugal 26/Dec/2000

Galapagos Discovery Panama Channel 19/Oct/1999

M.T. Kashmir Port of Jebel Ali, UAE 10/Feb/2009

New Carissa Coor Bay 4/Feb/1999

V.VideoAs attached

VI.ConclusionBearing in mind the importance of ROW/D, kindly be reminded of magic numbers as follows:

1906 English Marine Insurance Act1976 LLMC1982 UNCLOS2001 International Convention on Civil Liability for Bunker Oil Pollution Damage

Issue & Discussion:

(1.) PollutantMaritime Law, article 33-1 & 34: claim against the insurer >>> (ISSUE on wreck in the high seas)

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.

VII.FAQ 21 21 1

VII.2007 Nairobi WRCAs attached