Overview of Wrecks in International Law – Partly Regulated, by a Multitude of

International Conventions

Wrecks as Environmental Risks: The Legal Framework SYKE-BALEX Seminar

Helsinki 29-30 November 2017

Henrik RingbomAdjunct Professor (Docent), Åbo Akademi University

Professor II, Scandinavian Institute of Maritime Law, Oslo

Outline

General

– Why are wrecks so difficult?

Jurisdictional rules

– ‘New’ wrecks

– Historical wrecks

Responsibility and liability rules

Discussion

International conventions

1969 Intervention Convention

1979 SAR

1982 UNCLOS

1989 Salvage Convention

- - - -

2001 UCH (UNESCO)

2007 Wreck Removal (Nairobi)

Definition in art 1(4) of WRC

“Wreck”, following upon a maritime casualty, means:

(a) a sunken or stranded ship; or

(b) any part of a sunken or stranded ship, including any

object that is or has been on board such a ship; or

(c) any object that is lost at sea from a ship and that is

stranded, sunken or adrift at sea; or

(d) a ship that is about, or may reasonably be expected,

to sink or to strand, where effective measures to assist

the ship or any property in danger are not already being

taken.

Key Distinctions

What stage of wreckage?

New or old wreck?

Where (in what maritime zone) did the ship turn into a wreck?

Which party’s interests are at stake?

Laws regarding measures (prevention, removal of threat) or liability (risks and money)?

Navigation Likely emer-gency

Emer-gency

Rescue crew

Rescue cargo

Ship sinks (wreck)

Env mea-sures

Wreck removal

Historic wreck

Time

Stages of wreckage

Time

Different conventions apply

Naviga-tion

Likely emer-gency

Emer-gency

Rescue crew

Rescue cargo

Ship sinks (wreck)

Envmea-sures

Wreck removal

Histo-ricwreck

Conven-tion

UNCLOS Interv., UNCLOS

Interv. UNCLOS WRC

SAR SALVAGE WRC UNCLOS WRCSALVAGE

WRCSALVAGE

UCH UNCLOS

Time

Relevance of location

Naviga-tion

Likely emer-gency

Emer-gency

Rescue crew

Rescue cargo

Ship sinks (wreck)

Env mea-sures

Wreck removal

Histo-ric wreck

Conven-tion

UNCLOS Interv., UNCLOS

Interv. UNCLOS WRC

SAR SALVAGE WRC UNCLOS WRCSALVAGE

WRCSALVAGE

UCH UNCLOS

Spatial dim’sion

Time

Naviga-tion

Likely emer-gency

Emer-gency

Rescue crew

Rescue cargo

Ship sinks (wreck)

Env mea-sures

Wreck removal

Histo-ric wreck

Conven-tion

UNCLOS Interv., UNCLOS

Interv. UNCLOS WRC

SAR SALVAGE WRC UNCLOS WRCSALVAGE

WRCSALVAGE

UCH UNCLOS

Spatial dim’sion

Ship-rights-oblig

Owner-rights-oblig

CS-rights-oblig.

Salvor

Time

Naviga-tion

Likely emer-gency

Emer-gency

Rescue crew

Rescue cargo

Ship sinks (wreck)

Env mea-sures

Wreck removal

Histo-ric wreck

Conven-tion

UNCLOS Interv., UNCLOS

Interv. UNCLOS WRC

SAR SALVAGE WRC UNCLOS WRCSALVAGE

WRCSALVAGE

UCH UNCLOS

Spatial dim’sion

Ship-rights-oblig

Owner-rights-oblig

CS-rights-oblig.

Salvor

High Seas

Exclusive

Economic

Zone

Territorial

sea

Land

200 NM

12 NM

24 NM

Scandinavian Institute of Maritime Law

Jurisdictional rules on wrecks

‘New’ wrecks

– The waters

– The seabed

– The 2007 Wreck Removal Convention

Historical wrecks

– UNCLOS Articles 303, 33 and 149

– 2001 UNESCO Convention (UCH)

Scandinavian Institute of Maritime Law

Flag State Coastal- / port State

High seas/Area

Jurisdiction extends to

sunken ships. How long? (national

conditions)

Distinction government

ships,

privately owned

Generally no rights, but art 221

(Intervention Convention)

EEZ/CS Resources

GAIRS (max) WRC

Article 59

Terr. sea Internal rules

(no right of IP)

(WRC)

Internal waters

Internal rules

‘New’ wrecks

Article 59Basis for the resolution of conflicts regarding the

attribution of rights and jurisdiction in the EEZ

“ In cases where this Convention does not attribute

rights or jurisdiction to the coastal State or to other

States within the exclusive economic zone, and a

conflict arises between the interests of the coastal

State and any other State or States, the conflict

should be resolved on the basis of equity and in the

light of all the relevant circumstances, taking into

account the respective importance of the interests

involvedto the parties as well as to the international

community as a whole.”

Article 221(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.”

2007 Wreck Removal Convention

(law of the sea aspects)

Covers the EEZ and equivalent (but in reality also TS)

Establishes the division of rights/obligations

between state and registered owner (reporting,

locating, marking and removal of wrecks)

Limited to hazards (to maritime safety or

environment)

Necessary?

Flag State Coastal- / port State

High seas Flag state interests fading

(except for warships,

government ships)

Flag state of finder of wreck becomes more

relevant

Art 149

EEZ Art 303 (only contiguous zone?)

Terr. sea Internal rules

Internal waters

Internal rules

‘Historical’ wrecks

Article 303Archaeological and historical objects found at sea

“1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose.

2. In order to control traffic in such objects, the coastal State may, in applying Article 33, presume that their removal from the sea-bed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article.

3. Nothing in this article affects the right of identifiable owners, the law of salvage or other rules of admiralty, or laws and practices with respect to cultural exchanges.

4. This article is without prejudice to other international agreements and rules of international law regarding the protection of objects of an archaeological and historical nature.”

Article 149Archaeological and historical objects

“ All objects of an archaeological and historical nature

found in the Area shall be preserved or disposed of

for the mankind as a whole, particular regard being

paid to the preferential rights of the State or country

of origin, or the State of cultural origin, or the State

of historical and archaeological origin.”

2001 UNESCO Convention on the

Protection of Underwater Cultural Heritage

General principles

• Applies to ships and other “traces of human existence”

having been under water for 100 years or more

• UCH shall not be commercial exploited (Article 2(7))

• In reality excludes law of salvage (Article 4)

Beyond the territorial sea (on CS or in EEZ) (Articles 9 and

10)

– Reporting

– Consultation

– Urgent measures (Article 10(4))

Goes beyond UNCLOS?

State responsibility/liability

2001 Principles of state responsibility: breach of

obligation, attribution to state

States’ duty to prevent and avoid harm to the marine

environment follows from numerous agreements,

including UNCLOS (arts. 192, 194, 195 etc.) and regional

rules

Can failure to live up to those duties in terms of wrecks

give rise to liability for state?

– Failure to prevent damage (e.g. failing to notify or mark danger)

– Failure to take measures (e.g. leaking wreck)

– Taking wrongful measures which cause pollution

2006 ILC principles on the allocation of loss in the case of

transboundary harm arising out of hazardous activities

Civil liability of state (e.g. UNCLOS art 235). More exposed

in early stages of wreckage (art 232)

UNCLOS Article 232

Liability of States arising from enforcement measures

“States shall be liable for damage or loss attributable to

them arising from measures taken pursuant to section 6

when such measures are unlawful or exceed those

reasonably required in the light of available information.

States shall provide for recourse in their courts for

actions in respect of such damage or loss.”

Civil liability for pollution

(general pollution liability conventions)

Several well-ratified conventions, notably CLC/FUND,

Bunkers (HNS)

Key features: strict but limited liability, compulsory

insurance right of direct action.

Channelling clause protects salvors

Coverage of wrecks?

– Definition of ‘ship’ in conventions

– Practice at IOPC

Limits

Exposure of coastal states?

Environmental considerations

General principles

– Duty to protect the environment Arts 192, 194 etc.

– (Not a duty to take care of wrecks as such)

– Maritime safety

Self-interest by coastal state

Environmental liability?

– Damage caused by failure to act

– Damage caused during operation

Sharing of liability and risksCLCHNS Owner

1976

HNS Fund

IOPC Fund

Suppl Fund

19960

100

200

300

400

500

600

700

800

Oil HNS Other (LLMC)

2007 Wreck Removal Convention

(liability aspects)

Clearly covers wrecks, but only future ones

Places liability for reporting, locating, marking and

removal of wrecks and cargoes with the registered owner

Compulsory insurance, direct action, subject to ‘normal’

defences.

Liability limits, with reference to LLMC

Does not apply if other liability conventions apply or if

salvage rules apply

Necessary in view of existing liability regimes?

Conclusions

Two new conventions, still a number of unclarities on basic rights and obligations

A big regulatory gap remains at international level for dealing with wrecks and hazards that fall outside the two new conventions (most wrecks in the Baltic Sea)

Reasonably comprehensive civil liability rules, but covers only recent wrecks

States’ exposure to liability is real, but should not be exaggerated

As time goes, more arrangements to promote prevention of pollution from wrecks are needed, including from historical wrecks

Hopefully ideas of such arrangements can be discussed here