Wreck Removal的相關法律與保險問題ok - 中華海事檢定社股份 ...

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2009
年中華海事檢定社
(

)
公司內部研習會議


類別:
內部文件









Wreck Removal
的相關法律及

保險問題
」報告書

























報告人
:

紀建弦

報告日期:

9
8

12

26



1

Preface



This topic was first raised in the IMO Legal Committee6 in 1974/5 when a review was
conducted of national law in a number of

member states with a view to the development of an
international instrument, but this d
id not go further at that time.


A draft convention on Wreck Removal was first raised in its current form at the IMO Legal
Committee’s 69th

meeting in the autumn of 199
3.

At the 70th Session in the spring of 1994
Germany, the Netherlands and the United Kingdom submitted a further paper on this topic.
This argued that an international treaty on wreck removal was necessary in order to establish
uniform rules for wreck rem
oval operations in
international waters
.

The co
-
sponsors
suggested that this would be consistent with the powers of coastal states under Article 221 of
UNCLOS and would fill gaps in
the existing international law.

Attached to this joint
submission was a
first draft

of a wreck removal convention.

The 2007 Nairobi Convention
has
been developed from that draft.


The key comp
onents 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 n
avigation 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 a
gainst insurers, up to the LLMC

Li
mit,
modelled on the equivalent provisions of article VII of the 1969 CLC Convention.











EEZ: exclusive
economic

zone

UNCLOS:
United Nations Convention on the Law of the Sea, 1982

LLMC: 1976 International Convention on Limitation of Liability for Ma
rine Claim


2

Content



I.

2007 Nairobi Convention on ROW/D

A.

Introduction

B.

An ove
rview of the Nairobi WRC

C.

Afterthoughts


II.

Vessel Owner

s Liability for ROW/D

A. Liability under the Wreck Act

B. Potential liability under tort theories


III.

Coverage for ROW/D

A. Coverage under traditional marine P&I policies

B. Coverage under

broad form


ROW/D clauses

C. Coverage for ROW/D under excess liability policies: square pegs in round holes

1.


l
iability


2.

imposed by law


3.

assumed under contract


4.

for
damage


5.

an account of property damage



IV.

Photo


V.

Video


VI.

Conclusion


VII.

FAQ


VIII.

2007 Nairobi Convention on ROW/D



3

I.

2007 Nairobi Convention on ROW/D


A.

Introduction



The Convention, which was finalised at a diplomatic conference in Nairobi in May this

year
,
will extend the authority of participating States to call for the removal of a wreck,

or any
wreckage from a ship, to the EEZ of that State whenever there is a danger or

impediment to
navigation or a threat that may reasonably be expected to result in a

major harmful
consequences to the marine environment or related interests of those

States.

It also gives
participating States, without prejudice to their existing laws, the

option to extend its
provisions, which include the maintenance of compulsory insur
ance

and a right of direct
action against the insurer, to its own territorial waters. It will enter

into force 12 months after
the ratification of 10 States.


Issues to be discussed include:



Is the Co
nvention likely to be ratified.

If so, are many States
likely to extend its

provisions to their territorial waters.



What, if any, problems are foreseen.



Is the UK likely to ratify and adop
t it to its territorial waters.

How will that effect

existing laws. Is SOSREP likely to be involved.



What are the views of

ship owners, P&I insurers and salvors.


History:

1974/5 originally raised at IMO Legal Committee.

1994 Germany, Netherlands and UK presented a paper and first draft

convention in the Legal
Ctee. Main proposals were

i. grant of rights to affected coastal s
tate to remove wreck from its

EEZ

ii. strict liability, compulsory insurance and direct action against

insurers

1996 CMI circulated
a questionnaire to National MLA’s and later

reported to LEG recommending that the draft
convention should apply

to wrecks in

the EEZ and in inland and territorial waters.

2000/2005 IMO Legal Ctee busy with revisions to Athens Convention

(Passengers) and SUA
Protocols (Terrorism).

2006 Debates at meetings of LEG91 (April) and LEG92 (Oct) over

final text but especially
“opt
-
in” c
lause.

2007 March


meeting in London of all interested states.

2007 May


Convention adopted by Diplomatic Conference in

Nairobi.

???? Entry into force after 10 states have ratified.




4

B.

An overview of the Nairobi WRC



Art.1 Definitions



note

(1) “Conv
ention area” = EEZ


not more than 200 miles from

baselines.

(4)“wreck” and (5)”hazard”.

(6)”related interests” is derived from Art II(4) of the 1969 Intervention

Convention.

(8) “Operator of the ship”


reference to the ISM Code

(10)”Affected State”


in
whose Convention area the wreck is located


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. Exclusion
s

(1)
“…
.
s
hall 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 agreements

N
othing 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 fac
ilitate 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 fla
g of a State Party shall be req
uired to
maintain insurance or other financial security, such as a guarantee of a bank or
……”


Art.13 Time limits

3 years from determination of hazard or

6 years from date of maritime

casualty that resulted
in the wre
ck.

6
-
year time limits if m
aritime casualty consists of a series of occurrences
.


5

C.

Afterthoughts



The long period of gestation of this convention has allowed for a very full review of all i
ssues.
It is noteworthy however that 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 s
hipowner or his club to take
credit against such a claim for the net proceeds of such a sale.


Moreover on a broader front, the existence of a certificate of financial responsibility provided
for in the Nairobi Convention may well have an impact on the top
ica
l question of Places of
Refuge.

State and port authorities will be justifiably concerned at the risk of a ship in
distress sinking and obstructing

navigation of their waterways.

If their government has
exercised the option in Article 3(2) to extend th
e application of the Wreck Removal
Convention to its internal and territorial waters, this should allay their concerns that they may
be left with a valueless wreck and no prospects of recovery from her o
wners.

The topic of
Places of Refuge is still under
discussion in the CMI in the European Union
.

(
*
)


















“Place of Refuge”


This is framed to cover a ship requiring action to minimise hazards to
navigation, human life, ship, cargo and/or the environment.

(*):
CMI

(Certified Marine Investigator
)

CONFERENCE ATHENS 2008


6

II.

Vessel Owner’s Liability for ROW/D

A. Liability under the Wreck Act


The principal basis for liability fo
r ROW/D is under the Wreck Act.

This statute requires

the
owner of a sunken ves
sel sunk to mark and remove it.

By its
terms, the statute only applies

to “navigable channels,” “waters, in respect of which the United States has jurisdiction,” and

“any river, lake, harbor, sound, bay, canal, or other navigable waters of the United States.”

Thus,

this statute would appear to
be limited to territorial waters of the United States, which
only

extend 12 miles from shore.


With respect to offshore oil operations, the extent of jurisdiction is extended.

The Outer

Continental Shelf Lands Act (“OCSLA”)provides that the Wreck Act appl
ies to “artificial

islands, installations, and oth
er devices” described in OCSLA.

These devices include
mobile

offshore drilling units (“MODUs”) while attached to the seabed, but would not include

service

vessels.

Accordingly, a MODU that sinks while att
ached to the seabed would be

subject to the

Wreck Act.




B. Potential liability under tort theories


The 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
thir
d parties.

(
1983
“the
AQUA SAFARI
”), the court held that a non
-
negligent

time charterer
did

not face liability for the cost of wreck removal.







Keys:

navigable channels, OCSLA

Sunken vessel (applicable), MODUs (applicable), service vessel (inapplicabl
e
)


7

III.

Coverage for ROW/D

A. Coverage under traditional marine P&I policies



Co
nclusions about the extent of

coverage under traditional P&I policies:


(1) Removal will be “compulsory by law” when there is an applicable statute or valid

order
requiring
re
moval.

For example, when a vessel sinks in territorial waters and is a hazard
to

navigation, the owner is liable to remove the vessel under the Wreck Act without the
need for

any order, and removal is thus “compulsory by law.”


(2) Removal will be “comp
ulsory by law” when the owner faces liability in tort and

the
likelihood of liability and the potential consequences are sufficient to outweigh the cost of

removal.

For example, if a vessel sinks outside of territorial waters, but the wreck is

s
ufficientl
y

close to the surface that traffic in the area could strike the wreck, and there is
some reason to

believe that the owner faces responsibility for the sinking, the cost of
removal will probably be

covered.


(3) Removal is not compulsory when there is an i
nvalid order, the statute does not

apply, or
the concerns about civil liability are not reasonable.















Keys:

compulsory by law


8

B. Coverage under

broad form


ROW/D clauses


Particularly in the offshore oil industry, it is typical to expand the

coverage for ROW/D

beyond situations when
removal is “compulsory by law.”

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 requir
ed by cont
ract, or
when necessary for the

As
sured’s/Operator’s operations.”

This would provide coverage in
an number of situations

beyond those covered under a standard P&I policy.


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 rem
oval as “required by
contract.”

The

broad form coverage would also provid
e 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 holes


The typical excess liability policy provides coverage for “liability imposed upon the

insured
by law or assumed un
der contract . . . for damages .
. . for . . . property damage.”

This

policy
language raises a number of questions regarding the applicability of coverage for ROW/D.


1.

“liability”



O
utside of territorial waters



O
n the Outer Continental Shelf



F
ault


in doub
tful


2.


imposed by law


Insurers a
rgue 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



9


liability assumed under

contract


(ex.
M
ineral 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 lessee

s tore liability



I
n 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
government

s tort liability.


4.


for damage


ROW/D expenses are typically paid by the insured to contractors to remove
the wreck or debris, not paid to the inur
ed 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 insu
red.
M
ost 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?


10

IX.

Photo

(presented in powerpoint version)


X.

Video

(presented in powerpoint version)



11

VI.

Conclusion



Bearing in mind the importance of ROW/D,

kindly

be reminded of


magic

numbers


as
follows:

1906
English Marine In
surance Act

1976 LLMC

1982 UNCLOS

2001 International Convention on Civil Liability for Bunker Oil Pollution Damage


Issue & Discussion:

(1.)

Pollutant

Maritime Law, article
33
-
1 & 34:

claim against the insurer

>>> (ISSUE

on wreck in the
high seas
) <<<

the
insurer would not appear to be the tort liability
:
International
Convention on Civil Liability for Bunker Oil Pollution Damage, 2001

(2.)

Wreck

Maritime Law, article 21
-
1
-
3

(owner argue
limitation

on WRC, wreck =?? pollutant)

Marine Pollution Control Act

(affected state argue)


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 ther
e is maritime commerce.




12

VII
.

FAQ



、污染損害賠償責任是否為無過失責任



原告主張海洋污染責任,證明過失
不易
,為保護海洋資源,應屬無過失責任。

被告則
辯稱,無過失即無賠償為侵權

為法則的重要原則,應屬過失責任。



、船東或責任保險人就污染損害賠償能否主張限制責任?


被告船東及責任保險人抗辯,即使渠等應負污染損害賠償責任,依我國海商法第
21

及相關國際公約,得主張限制責任。

原告則主張船東及責任保險人就污染損害賠償,

得主張限制責任。海洋污染造成之損害賠償,非海商法第
21
條第
1
項各款之損害或
債務。



、船舶殘骸是否屬於污染物,而有海洋污染防治法之適用?


原告求返還代墊之船體殘骸移置費用,主張船舶殘骸為污染物,如

移置將造成污染
源,移置費用是減少損害之必要支出。

被告則抗辯船體殘骸非污染物,無移除必要。



、船東就船舶殘骸移除費用,能否主張責任限制?


原告主張依我國海洋污染防治法,船東等就海污染本身造成之損害,並無責任限制之規
定。

被告則抗辯,即使海污染在國際公約上亦均得主張責任限制。




13

XI.

2007 Na
irobi Convention on ROW/D

(as attached)