02紀建弦 - 中華海事檢定社股份有限公司

forestsaintregisOil and Offshore

Nov 8, 2013 (3 years and 7 months ago)

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Wreck Removal
的相關法律及

保險問題



Prepared by Kenneth Chi

2009
年中華海事檢定社
(

)
公司內部研習會議


Preface


The 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/D

A.

Introduction


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


B.

An overview of the Nairobi WRC

Art.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
agreements


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…”


(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 limits


3 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 Owner

s Liability for ROW/D


A. Liability under the Wreck Act


Territorial waters


Contiguous zone


The Outer Continental Shelf Lands Act



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



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
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/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
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 Assured’s/Operator’s
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 holes

1.

“liability”


Outside of territorial waters


On the Outer Continental Shelf


Fault


in doubtful


2.

“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
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 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.


4.

“for damage”




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
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.

Video

As attached

VI.

Conclusion


Bearing in mind the importance of ROW/D, kindly be reminded of
“magic numbers” as follows:



1906 English Marine Insurance 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 there is maritime
commerce.

VII.

FAQ

一、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行為法則的重要原則,應
屬過失責任。

二、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
條及相關國際公約,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,不得主張限制責任。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。

三、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,如不移
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。

四、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。

VII.

2007 Nairobi WRC

As attached