REPORT OF THE BMLA SUB COMMITTEE ON SALVAGE
Annual Report 1997
It will be recalled that the IMO Legal Committee is engaged in the development of an International Convention relating to wreck removal. As a result of decisions taken by the Legal Committee in 1996, a Correspondence Group was established for the purpose of obtaining comments and suggestions upon certain of the concepts and proposals reflected in the draft Convention initially prepared by the Dutch, German and UK delegations.
The activities of the Correspondence Group have been coordinated by Mr. Jan de Boer of the Dutch delegation and have continued during 1997. The BMLA Salvage Committee has been actively involved in this discussion process principally at the invitation of the UK Department of Transport, now the Department of the Environment Transport and the Regions.
Additionally, certain organisations represented on this Committee have had the opportunity to submit their comments and suggestions separately in view of the fact that the members of those organisations will be directly affected by the proposed Convention. I refer in particular to the International Chamber of Shipping which represents shipowning interests and the International Group of P&I Clubs whose members, customarily, insure a shipowner's legal liability for wreck removal expenditure.
The principal issues on which the Correspondence Group has focused are as follows:-
(1) Geographical scope of the Convention
It was originally proposed that the provisions of the Convention should only apply to wrecks outside State territorial waters. In response to a revised proposal, the Committee expressed its preference that the Convention should apply to wrecks both within and without territorial waters to ensure a uniform approach regardless of the location of the wreck.
(2) Type of risks covered
It was the Committee's view that the liability to remove a wreck should be confined to circumstances in which the wreck constituted a danger to safe navigation. In the absence of any danger to surface navigation presented by the wreck, it was not considered that the owner should be under any legal responsibility to remove it.
However, the Committee recognised the possible need to make provision for situations in which, whilst presenting no danger to safe navigation, the wreck posed a pollution hazard which endangered commercial fishing interests.
(3) Definition of "wreck"
In response to certain specific proposals the Committee suggested that the following should be included within the definition:
- containers lost overboard from a ship
- wrecked aircraft
However, it was felt that the following should be excluded:
- drifting ships unless they have been abandoned or become derelict
- fixed platforms
(4) Possible overlap with other Conventions
Consistent with (2) above, the Committee expressed its preference for the proposal to avoid any overlap with other Conventions (such as the 1969 Intervention Convention) by restricting the application of the proposed Wreck Removal Convention to wrecks which endanger safe navigation only.
Similarly, it was considered that the liability and compensation provisions in the proposed Convention should be drafted so as to avoid duplication with the compensation regimes imposed by the CLC and/or HNS Conventions.
(5) Limitation of liability
Although the Committee agreed with the proposal that existing limitation of liability regimes such as that contained in the 1976 Limitation Convention should not be disturbed, they felt that the wording of the relevant Article in the draft Convention could be improved to eliminate doubt concerning a shipowner's entitlement to limited liability.
These and other comments submitted by members of the Correspondence Group were collated by Mr. de Boer who, in July, circulated a draft report for consideration prior to its being presented to the IMO Legal Committee for its 76th session.
In its response, the Committee:
- expressed considerable reservations with respect to the proposal that shipowners should have a compulsory obligation to effect insurance against wreck removal liabilities
- raised objection to proposals that, in certain circumstances, cargo owners might become liable to contribute to wreck removal expenditure
At its 76th session, the IMO Legal Committee debated the issues addressed in the Correspondence Group reports and concluded that the work of the Correspondence Group should continue into 1998.
In light of the guidance provided by the Legal Committee, various revisions to the draft Convention have been made. These are currently being considered by the Salvage Committee.
The IMO Legal Committee will revisit this subject at its 77th session.
Additionally, in November, the Committee was asked to consider the terms of reference of Lord Donaldson's Review of Salvage and Intervention; Command and Control and invited to submit any comments which might assist with that project. However, the Committee's ability to provide useful assistance was limited by the fact that the topics being addressed in that context are essentially of a strategic and practical nature better dealt with by shipowners, salvors, environmental interests and others with direct experience of the problems and their possible solution.