The Nairobi International Convention on the Removal of Wrecks will enter into force next 14 April 2015 following the deposit of the instrument of ratification by Denmark, 10th country to ratify the Convention. Although Spain has not acceded to the Convention yet, it should be expected that its ratification will be considered by the Spanish Authorities.
Since the costs and complexity of wreck removal has become and is one of the major concern of shipowners (and therefore of insurers), the Nairobi Convention provides legal basis for States to remove shipwrecks that may have the potential to affect adversely the safety of lives, goods and property at sea, as well as the marine and coastal environment. It will make shipowners financially liable and require them to take out insurance or provide other financial security to cover the costs of wreck removal. It will also provide States with a right of direct action against insurers
The Convention intends to provide a set of uniform international rules for the prompt and effective removal of wrecks located outside the territorial sea of the States party to the Convention. The application of the Convention can be extended to the territorial sea of a State but unless signatories specifically note that territorial waters are to be included in the convention, then they are not. Of the States that have ratified the Convention so far, only three countries, Bulgaria, Denmark and the United Kingdom, have extended the Convention to also apply to their territorial waters (data obtained on the IMO website).
Most accidents resulting in shipwrecks occur in territorial waters (Lloyd’s of London statistics show that 45% of the major casualties between 2000 and 2010 were due to groundings, which tend to occur closer to the shore, more than likely within the 12-mile range, and not in the EEZ.) often due to groundings. The States which have ratified the Convention, but chosen not to apply it to their territorial waters, which means that should a casualty occur in territorial waters , the shipowner and its insurers are liable for the costs of marking and removing a wreck.
It is to be mentioned that Article 12 of the Convention contains a compulsory insurance regime including a requirement for state issued Certificates for vessels of 300 gt or more. P&I Clubs will be able to issue «blue cards» which will enable members to obtain the Wreck Removal Convention Certificates which must be carried on board in order to comply with compulsory insurance requirements of the Convention. The Certificates must be issued by a State which is party to the Convention. The flag state will issue the Certificate if it is party to the Convention. If the flag state is not party to the Convention, owners will need to find a State party which is willing to issue Certificates for vessels not flying its flag.
Mercedes Duch, Partner