Shipping Policy 1A
Department for Transport
Great Minster House
76 Marsham Street
LONDON SW1 4DR
Dear Mr Baker,
UK Implementation of the Agreement on the Wreck of RMS Titanic.
I am writing to you in my capacity as Secretary to the BMLA Salvage Sub-Committee and in response to your letter dated 7th April and its enclosures, which have been made available to all other members of the sub-committee. I am sure that you will appreciate, however, that in view of the limited amount of time given for the preparation of responses and the intervention of Easter, some members have been unable to contribute comments due to their unavailability.
The comments made by those members of the sub-committee who have been able to contribute their views can be summarised as follows:
(1) Care should be taken to ensure that the proposed agreement, and the legislation by which it is to be implemented, are consistent with the provisions of UNCLOS;
(2) In giving effect to the proposed system of project authorisations, it would be desirable that the Secretary of State should, where possible, avoid any inconsistency with the manner in which the provisions of the Protection of Wrecks Act 1973 relating to the grant of licences are implemented;
(3) It is noted that, initially, the proposed agreement will only bind four State signatories, and that, afterwards, efforts will be made to encourage other States to become parties to the agreement. Mention is made of Japan and Russia, and, whilst it is appreciated that relatively few companies will possess the personnel, equipment and expertise to carry out diving activities on the wreck of the Titanic, you will be aware that, for taxation and other reasons, there is, in the shipping industry, a widespread use of “flags of convenience”, including the incorporation of shipping companies in developing States with little, if any, traditional involvement in shipping-related activities. Consequently, the ability to enforce the proposed arrangements in relation to the sort of entrepreneurial salvor who may wish to structure its business in order to circumvent the intended arrangements is thought to be a matter which merits further consideration;
(4) A concern has been expressed on behalf of property underwriters that governmental agreements of this nature, including the agreement made in connection with the wreck of the Estonia, may operate so as to deprive the lawful owners of their rights in relation to wrecked property. Any such agreement, convention or legislation which has that effect may contravene the Human Rights Convention. Article 1 of the First Protocol states that: “ Every natural or legal person is entitled to peaceful enjoyment of his possessions…”, and section 6(1) of the Human Rights Act 1998 provides that: “It is unlawful for a Public Authority to act in a way which is incompatible with a Convention right.” The validity of the proposed agreement and legislation may, therefore, be open to challenge on those grounds.
(5) Following on from (4), there is a general concern that governmental intervention of this nature can deprive property owners and their underwriters of the benefits which modern salvage technology can provide, particularly in relation to the recoverability of valuable sunken property.
I hope that these comments will prove helpful.
Secretary to the BMLA Salvage Sub-Committee.