Shipping Australia is pleased to see that Australia is considering accession to the Nairobi International Convention on the Removal of Wrecks 2007 (Hereafter, “Nairobi Convention”).
The Nairobi Convention sets out a globally consistent legal framework for countries to remove wrecks that have happened beyond their territories on the grounds of safety of life, preservation of the marine environment and protection of property.
What is a “wreck”?
As might be expected, under the Nairobi Convention, a “wreck” includes ships that have sunk, have stranded, or are about to be sunk or stranded. The word “wreck” also includes the loss of objects from ships that are sunk, stranded or adrift. An example of a lost object could be a shipping container.
Inevitably, given the inherent dangers of crossing the sea, there will sadly always be wrecks. Although, as the International Maritime Organization notes, “the incidence of marine casualties has decreased dramatically in recent years, mainly thanks to the work of IMO and the persistent efforts of Governments and industry to enhance safety in shipping operations”.
A need for global consistency
Generally, in any area of human activity that spans multiple jurisdictions, it is considered desirable to have uniform law in that activity to promote certainty. In turn certainty is generally thought to help stakeholders plan their activities and, in business-related fields, certainty may encourage investment, encourage new services, and generally promote economic activity. Certainty is also thought to reduce costs which, again, generally promotes economic activity.
Uniformity of law is particularly important in ocean-shipping because ships operate in multiple jurisdictions. Shipping – and therefore world trade – would be next to impossible if every jurisdiction applied completely different rules. Certainty in shipping law will also help increase safety of navigation, boost environmental protection and will harmonise liability and compensation regimes.
As a general statement, Shipping Australia considers all matters and issues raised in the discussion paper should be resolved in a manner that is consistent with the Nairobi Convention.
Insurance and liability
There is an important principle that shipowners and operators accept the imposition of strict liability and compulsory insurance in return for limitation of liability.
Accordingly, Shipping Australia considers that accession to the Nairobi Convention, in full and without reservation or amendment, is the appropriate method of accession. Specifically, any insurance related provisions should be in line with the Convention on the Limits of Liability for Maritime Claims (hereafter “LLMC”).
However, Australia has reserved its position under the LLMC and imposes unlimited liability on shipowners for all costs associated with the removal of wrecks.
Unlimited liability is incompatible both with the economic operation of international shipping and the Nairobi Convention. This unlimited liability reservation should be removed upon accession to the Nairobi Convention.
Inside and outside of Australia
Shipping Australia also understands that many wrecks around the world happen in a territorial sea. To apply the Nairobi Convention to Australia’s territorial sea would be optimal in achieving maximum levels of uniformity and certainty. Excluding the Nairobi Convention from the Australian territorial sea would, it appears, effectively render the Nairobi Convention inapplicable to potential wrecks anywhere inside of Australia.
Accordingly, Shipping Australia believes that the Nairobi Convention should also apply in the Australian territorial sea.