Prepared by Kenneth Chi
The key components of this draft text were:
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;
strict liability on the shipowner for the costs of
reporting, marking and removing a wreck if required
to do so by the coastal state;
compulsory insurance and direct action against
insurers, up to the LLMC Limit, modelled on the
equivalent provisions of article VII of the 1969 CLC
2007 Nairobi Convention on ROW/D
for 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
An overview of the Nairobi WRC
(1) “Convention area” = EEZ
not more than 200 miles from
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)
(1) “…. shall not apply to measures taken under the International
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
Nothing 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…”
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 limits
3 years from determination of hazard or 6 years from date of
maritime casualty that resulted in the wreck.
year time limits if maritime casualty consists of a series of
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
Places of Refuge
The topic of Places of Refuge is still under discussion in the CMI
in the European Union.
s Liability for ROW/D
A. Liability under the Wreck Act
The Outer Continental Shelf Lands Act
mobile offshore drilling units (“MODUs”)(appliciable); service
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 third parties. (1983 “the
”), the court held that a non
negligent time charterer did
not face liability for the cost of wreck removal.
Coverage for ROW/D
A. Coverage under traditional marine P&I policies
“compulsory 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
B. Coverage under
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 Assured’s/Operator’s
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 holes
Outside of territorial waters
On the Outer Continental Shelf
“imposed by law”
Insurers 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
“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 lessee’s 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 government’s tort liability.
ROW/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
“an account of property damage”
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
But what if the wreck is in the open ocean away from any
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
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.
Jacksonville, Florida 22/May/2003
Viana do Castelo, Portugal 26/Dec/2000
Panama Channel 19/Oct/1999
Port of Jebel Ali, UAE 10/Feb/2009
Coor Bay 4/Feb/1999
Bearing in mind the importance of ROW/D, kindly be reminded of
“magic numbers” as follows:
1906 English Marine Insurance Act
2001 International Convention on Civil Liability for Bunker Oil
Issue & Discussion:
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
Maritime Law, article 21
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 there is maritime
2007 Nairobi WRC