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Wreck Removal Convention BillPage 10

Section 1(4)

“SCHEDULE 11ZAWrecks ConventionArticle 1DefinitionsArticle 2Objectives and general principlesArticle 3Scope of applicationArticle 4ExclusionsArticle 5Reporting wrecksArticle 6Determination of hazardArticle 7Locating wrecksArticle 8Marking of wrecksArticle 9Measures to facilitate the removal of wrecksArticle 10Liability of the ownerArticle 11Exceptions to liabilityArticle 12Compulsory insurance or other financial securityArticle 13Time limitsArticle 14Amendment provisionsArticle 15Settlement of disputesArticle 16Relationship to other conventions and international agreementsArticle 17Signature, ratification, acceptance, approval and accessionArticle 18Entry into forceArticle 19DenunciationArticle 20DepositaryArticle 21Languages Wreck Removal Convention

The Schedule referred to in section 1(4) is—

Preamble:

5THE STATES PARTIES TO THE PRESENT CONVENTION,

CONSCIOUS of the fact that wrecks, if not removed, may pose a hazard to

navigation or the marine environment,

CONVINCED of the need to adopt uniform international rules and

procedures to ensure the prompt and effective removal of wrecks and

10payment of compensation for the costs therein involved,

NOTING that many wrecks may be located in States’ territory, including the

territorial sea,

RECOGNIZING the benefits to be gained through uniformity in legal

regimes governing responsibility and liability for removal of hazardous

15wrecks,

BEARING IN MIND the importance of the United Nations Convention on

the Law of the Sea, done at Montego Bay on 10 December 1982, and of the

customary international law of the sea, and the consequent need to

implement the present Convention in accordance with such provisions,

20HAVE AGREED as follows:

For the purposes of this Convention:

1. “Convention area” means the exclusive economic zone of a State Party,

established in accordance with international law or, if a State Party has not

established such a zone, an area beyond and adjacent to the territorial sea of

25that State determined by that State in accordance with international law and

extending not more than 200 nautical miles from the baselines from which

the breadth of its territorial sea is measured.

2. “Ship” means a seagoing vessel of any type whatsoever and includes

hydrofoil boats, air-cushion vehicles, submersibles, floating craft and

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floating platforms, except when such platforms are on location engaged in

the exploration, exploitation or production of seabed mineral resources.

3. “Maritime casualty” means a collision of ships, stranding or other incident

of navigation, or other occurrence on board a ship or external to it, resulting

5in material damage or imminent threat of material damage to a ship or its

cargo.

4. “Wreck”, following upon a maritime casualty, means:

(a) a sunken or stranded ship; or

(b) any part of a sunken or stranded ship, including any object that is or

10has been on board such a ship; or

(c) any object that is lost at sea from a ship and that is stranded, sunken

or adrift at sea; or

(d) a ship that is about, or may reasonably be expected, to sink or to

strand, where effective measures to assist the ship or any property in

15danger are not already being taken.

5. “Hazard” means any condition or threat that:

(a) poses a danger or impediment to navigation; or

(b) may reasonably be expected to result in major harmful consequences

to the marine environment, or damage to the coastline or related

20interests of one or more States.

6. “Related interests” means the interests of a coastal State directly affected

or threatened by a wreck, such as:

(a) maritime coastal, port and estuarine activities, including fisheries

activities, constituting an essential means of livelihood of the persons

25concerned;

(b) tourist attractions and other economic interests of the area

concerned;

(c) the health of the coastal population and the wellbeing of the area

concerned, including conservation of marine living resources and of

30wildlife; and

(d) offshore and underwater infrastructure.

7. “Removal” means any form of prevention, mitigation or elimination of the

hazard created by a wreck. “Remove”, “removed” and “removing” shall be

construed accordingly.

358. “Registered owner” means the person or persons registered as the owner

of the ship or, in the absence of registration, the person or persons owning

the ship at the time of the maritime casualty. However, in the case of a ship

owned by a State and operated by a company which in that State is

registered as the operator of the ship, “registered owner” shall mean such

40company.

9. “Operator of the ship” means the owner of the ship or any other

organization or person such as the manager, or the bareboat charterer, who

has assumed the responsibility for operation of the ship from the owner of

the ship and who, on assuming such responsibility, has agreed to take over

45all duties and responsibilities established under the International Safety

Management Code, as amended.

10. “Affected State” means the State in whose Convention area the wreck is

located.

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11. “State of the ship’s registry” means, in relation to a registered ship, the

State of registration of the ship and, in relation to an unregistered ship, the

State whose flag the ship is entitled to fly.

12. “Organization” means the International Maritime Organization.

513. “Secretary-General” means the Secretary-General of the Organization.

1. A State Party may take measures in accordance with this Convention in

relation to the removal of a wreck which poses a hazard in the Convention

area.

2. Measures taken by the Affected State in accordance with paragraph 1 shall

10be proportionate to the hazard.

3. Such measures shall not go beyond what is reasonably necessary to

remove a wreck which poses a hazard and shall cease as soon as the wreck

has been removed; they shall not unnecessarily interfere with the rights and

interests of other States including the State of the ship’s registry, and of any

15person, physical or corporate, concerned.

4. The application of this Convention within the Convention area shall not

entitle a State Party to claim or exercise sovereignty or sovereign rights over

any part of the high seas.

5. States Parties shall endeavour to co-operate when the effects of a maritime

20casualty resulting in a wreck involve a State other than the Affected State.

1. Except as otherwise provided in this Convention, this Convention shall

apply to wrecks in the Convention area.

2. A State Party may extend the application of this Convention to wrecks

located within its territory, including the territorial sea, subject to article 4,

25paragraph 4. In that case, it shall notify the Secretary-General accordingly, at

the time of expressing its consent to be bound by this Convention or at any

time thereafter. When a State Party has made a notification to apply this

Convention to wrecks located within its territory, including the territorial

sea, this is without prejudice to the rights and obligations of that State to take

30measures in relation to wrecks located in its territory, including the

territorial sea, other than locating, marking and removing them in

accordance with this Convention. The provisions of articles 10, 11 and 12 of

this Convention shall not apply to any measures so taken other than those

referred to in articles 7, 8 and 9 of this Convention.

353. When a State Party has made a notification under paragraph 2, the

“Convention area” of the Affected State shall include the territory, including

the territorial sea, of that State Party.

4. A notification made under paragraph 2 above shall take effect for that

State Party, if made before entry into force of this Convention for that State

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Party, upon entry into force. If notification is made after entry into force of

this Convention for that State Party, it shall take effect six months after its

receipt by the Secretary-General.

5. A State Party that has made a notification under paragraph 2 may

5withdraw it at any time by means of a notification of withdrawal to the

Secretary-General. Such notification of withdrawal shall take effect six

months after its receipt by the Secretary-General, unless the notification

specifies a later date.

1. This Convention shall not apply to measures taken under the

10International Convention relating to Intervention on the High Seas in Cases

of Oil Pollution Casualties, 1969, as amended, or the Protocol relating to

Intervention on the High Seas in Cases of Pollution by Substances other than

Oil, 1973, as amended.

2. This Convention shall not apply to any warship or other ship owned or

15operated by a State and used, for the time being, only on Government non-

commercial service, unless that State decides otherwise.

3. Where a State Party decides to apply this Convention to its warships or

other ships as described in paragraph 2, it shall notify the Secretary-General,

thereof, specifying the terms and conditions of such application.

204. (a) When a State Party has made a notification under article 3, paragraph

2, the following provisions of this Convention shall not apply in its territory,

including the territorial sea:

(i) Article 2, paragraph 4;

(ii) Article 9, paragraphs 1, 5, 7, 8, 9 and 10; and

(iii) 25Article 15.

(b) Article 9, paragraph 4, insofar as it applies to the territory, including the

territorial sea of a State Party, shall read:

Subject to the national law of the Affected State, the registered owner may

contract with any salvor or other person to remove the wreck determined to

30constitute a hazard on behalf of the owner. Before such removal commences,

the Affected State may lay down conditions for such removal only to the

extent necessary to ensure that the removal proceeds in a manner that is

consistent with considerations of safety and protection of the marine

environment.

351. A State Party shall require the master and the operator of a ship flying its

flag to report to the Affected State without delay when that ship has been

involved in a maritime casualty resulting in a wreck. To the extent that the

reporting obligation under this article has been fulfilled either by the master

or the operator of the ship, the other shall not be obliged to report.

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2. Such reports shall provide the name and the principal place of business of

the registered owner and all the relevant information necessary for the

Affected State to determine whether the wreck poses a hazard in accordance

with article 6, including:

(a) 5the precise location of the wreck;

(b) the type, size and construction of the wreck;

(c) the nature of the damage to, and the condition of, the wreck;

(d) the nature and quantity of the cargo, in particular any hazardous and

noxious substances; and

(e) 10the amount and types of oil, including bunker oil and lubricating oil,

on board.

When determining whether a wreck poses a hazard, the following criteria

should be taken into account by the Affected State:

(a) the type, size and construction of the wreck;

(b) 15depth of the water in the area;

(c) tidal range and currents in the area;

(d) particularly sensitive sea areas identified and, as appropriate,

designated in accordance with guidelines adopted by the

Organization, or a clearly defined area of the exclusive economic

20zone where special mandatory measures have been adopted

pursuant to article 211, paragraph 6, of the United Nations

Convention on the Law of the Sea, 1982;

(e) proximity of shipping routes or established traffic lanes;

(f) traffic density and frequency;

(g) 25type of traffic;

(h) nature and quantity of the wreck’s cargo, the amount and types of oil

(such as bunker oil and lubricating oil) on board the wreck and, in

particular, the damage likely to result should the cargo or oil be

released into the marine environment;

(i) 30vulnerability of port facilities;

(j) prevailing meteorological and hydrographical conditions;

(k) submarine topography of the area;

(l) height of the wreck above or below the surface of the water at lowest

astronomical tide;

(m) 35acoustic and magnetic profiles of the wreck;

(n) proximity of offshore installations, pipelines, telecommunications

cables and similar structures; and

(o) any other circumstances that might necessitate the removal of the

wreck.

401. Upon becoming aware of a wreck, the Affected State shall use all

practicable means, including the good offices of States and organizations, to

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warn mariners and the States concerned of the nature and location of the

wreck as a matter of urgency.

2. If the Affected State has reason to believe that a wreck poses a hazard, it

shall ensure that all practicable steps are taken to establish the precise

5location of the wreck.

1. If the Affected State determines that a wreck constitutes a hazard, that

State shall ensure that all reasonable steps are taken to mark the wreck.

2. In marking the wreck, all practicable steps shall be taken to ensure that the

markings conform to the internationally accepted system of buoyage in use

10in the area where the wreck is located.

3. The Affected State shall promulgate the particulars of the marking of the

wreck by use of all appropriate means, including the appropriate nautical

publications.

1. If the Affected State determines that a wreck constitutes a hazard, that

15State shall immediately:

(a) inform the State of the ship’s registry and the registered owner; and

(b) proceed to consult the State of the ship’s registry and other States

affected by the wreck regarding measures to be taken in relation to

the wreck.

202. The registered owner shall remove a wreck determined to constitute a

hazard.

3. When a wreck has been determined to constitute a hazard, the registered

owner, or other interested party, shall provide the competent authority of

the Affected State with evidence of insurance or other financial security as

25required by article 12.

4. The registered owner may contract with any salvor or other person to

remove the wreck determined to constitute a hazard on behalf of the owner.

Before such removal commences, the Affected State may lay down

conditions for such removal only to the extent necessary to ensure that the

30removal proceeds in a manner that is consistent with considerations of

safety and protection of the marine environment.

5. When the removal referred to in paragraphs 2 and 4 has commenced, the

Affected State may intervene in the removal only to the extent necessary to

ensure that the removal proceeds effectively in a manner that is consistent

35with considerations of safety and protection of the marine environment.

6. The Affected State shall:

(a) set a reasonable deadline within which the registered owner must

remove the wreck, taking into account the nature of the hazard

determined in accordance with article 6;

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(b) inform the registered owner in writing of the deadline it has set and

specify that, if the registered owner does not remove the wreck

within that deadline, it may remove the wreck at the registered

owner’s expense; and

(c) 5inform the registered owner in writing that it intends to intervene

immediately in circumstances where the hazard becomes

particularly severe.

7. If the registered owner does not remove the wreck within the deadline set

in accordance with paragraph 6(a), or the registered owner cannot be

10contacted, the Affected State may remove the wreck by the most practical

and expeditious means available, consistent with considerations of safety

and protection of the marine environment.

8. In circumstances where immediate action is required and the Affected

State has informed the State of the ship’s registry and the registered owner

15accordingly, it may remove the wreck by the most practical and expeditious

means available, consistent with considerations of safety and protection of

the marine environment.

9. States Parties shall take appropriate measures under their national law to

ensure that their registered owners comply with paragraphs 2 and 3.

2010. States Parties give their consent to the Affected State to act under

paragraphs 4 to 8, where required.

11. The information referred to in this article shall be provided by the

Affected State to the registered owner identified in the reports referred to in

article 5, paragraph 2.

251. Subject to article 11, the registered owner shall be liable for the costs of

locating, marking and removing the wreck under articles 7, 8 and 9,

respectively, unless the registered owner proves that the maritime casualty

that caused the wreck:

(a) resulted from an act of war, hostilities, civil war, insurrection, or a

30natural phenomenon of an exceptional, inevitable and irresistible

character;

(b) was wholly caused by an act or omission done with intent to cause

damage by a third party; or

(c) was wholly caused by the negligence or other wrongful act of any

35Government or other authority responsible for the maintenance of

lights or other navigational aids in the exercise of that function.

2. Nothing in this Convention shall affect the right of the registered owner to

limit liability under any applicable national or international regime, such as

the Convention on Limitation of Liability for Maritime Claims, 1976, as

40amended.

3. No claim for the costs referred to in paragraph 1 may be made against the

registered owner otherwise than in accordance with the provisions of this

Convention. This is without prejudice to the rights and obligations of a State

Party that has made a notification under article 3, paragraph 2, in relation to

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wrecks located in its territory, including the territorial sea, other than

locating, marking and removing in accordance with this Convention.

4. Nothing in this article shall prejudice any right of recourse against third

parties.

51. The registered owner shall not be liable under this Convention for the

costs mentioned in article 10, paragraph 1 if, and to the extent that, liability

for such costs would be in conflict with:

(a) the International Convention on Civil Liability for Oil Pollution

Damage, 1969, as amended;

(b) 10the International Convention on Liability and Compensation for

Damage in Connection with the Carriage of Hazardous and Noxious

Substances by Sea, 1996, as amended;

(c) the Convention on Third Party Liability in the Field of Nuclear

Energy, 1960, as amended, or the Vienna Convention on Civil

15Liability for Nuclear Damage, 1963, as amended; or national law

governing or prohibiting limitation of liability for nuclear damage;

or

(d) the International Convention on Civil Liability for Bunker Oil

Pollution Damage, 2001, as amended;

20provided that the relevant convention is applicable and in force.

2. To the extent that measures under this Convention are considered to be

salvage under applicable national law or an international convention, such

law or convention shall apply to questions of the remuneration or

compensation payable to salvors to the exclusion of the rules of this

25Convention.

1. The registered owner of a ship of 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 similar institution, to

cover liability under this Convention in an amount equal to the limits of

30liability under the applicable national or international limitation regime, but

in all cases not exceeding an amount calculated in accordance with article

6(1)(b) of the Convention on Limitation of Liability for Maritime Claims,

1976, as amended.

2. A certificate attesting that insurance or other financial security is in force

35in accordance with the provisions of this Convention shall be issued to each

ship of 300 gross tonnage and above by the appropriate authority of the State

of the ship’s registry after determining that the requirements of paragraph 1

have been complied with. With respect to a ship registered in a State Party,

such certificate shall be issued or certified by the appropriate authority of the

40State of the ship’s registry; with respect to a ship not registered in a State

Party it may be issued or certified by the appropriate authority of any State

Party. This compulsory insurance certificate shall be in the form of the model

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set out in the annex to this Convention, and shall contain the following

particulars:

(a) name of the ship, distinctive number or letters and port of registry;

(b) gross tonnage of the ship;

(c) 5name and principal place of business of the registered owner;

(d) IMO ship identification number;

(e) type and duration of security;

(f) name and principal place of business of insurer or other person

giving security and, where appropriate, place of business where the

10insurance or security is established; and

(g) period of validity of the certificate, which shall not be longer than the

period of validity of the insurance or other security.

3. (a) A State Party may authorize either an institution or an organization

recognized by it to issue the certificate referred to in paragraph 2. Such

15institution or organization shall inform that State of the issue of each

certificate. In all cases, the State Party shall fully guarantee the completeness

and accuracy of the certificate so issued and shall undertake to ensure the

necessary arrangements to satisfy this obligation.

(b) A State Party shall notify the Secretary-General of:

(i) 20the specific responsibilities and conditions of the

authority delegated to an institution or organization

recognized by it;

(ii) the withdrawal of such authority; and

(iii) the date from which such authority or withdrawal of

25such authority takes effect.

An authority delegated shall not take effect prior to three months from the

date on which notification to that effect was given to the Secretary-General.

(c) The institution or organization authorized to issue certificates in

accordance with this paragraph shall, as a minimum, be authorized to

30withdraw these certificates if the conditions under which they have been

issued are not maintained. In all cases the institution or organization shall

report such withdrawal to the State on whose behalf the certificate was

issued.

4. The certificate shall be in the official language or languages of the issuing

35State. If the language used is not English, French or Spanish, the text shall

include a translation into one of these languages and, where the State so

decides, the official language(s) of the State may be omitted.

5. The certificate shall be carried on board the ship and a copy shall be

deposited with the authorities who keep the record of the ship’s registry or,

40if the ship is not registered in a State Party, with the authorities issuing or

certifying the certificate.

6. An insurance or other financial security shall not satisfy the requirements

of this article if it can cease for reasons other than the expiry of the period of

validity of the insurance or security specified in the certificate under

45paragraph 2 before three months have elapsed from the date on which notice

of its termination is given to the authorities referred to in paragraph 5

unless certificate has been surrendered to these authorities or a new

certificate has been issued within the said period. The foregoing provisions

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shall similarly apply to any modification, which results in the insurance or

security no longer satisfying the requirements of this article.

7. The State of the ship’s registry shall, subject to the provisions of this article

and having regard to any guidelines adopted by the Organization on the

5financial responsibility of the registered owners, determine the conditions of

issue and validity of the certificate

8. Nothing in this Convention shall be construed as preventing a State Party

from relying on information obtained from other States or the Organization

or other international organizations relating to the financial standing of

10providers of insurance or financial security for the purposes of this

Convention. In such cases, the State Party relying on such information is not

relieved of its responsibility as a State issuing the certificate required by

paragraph 2.

9. Certificates issued and certified under the authority of a State Party shall

15be accepted by other States Parties for the purposes of this Convention and

shall be regarded by other States Parties as having the same force as

certificates issued or certified by them, even if issued or certified in respect

of a ship not registered in a State Party. A State Party may at any time request

consultation with the issuing or certifying State should it believe that the

20insurer or guarantor named in the certificate is not financially capable of

meeting the obligations imposed by this Convention.

10. Any claim for costs arising under this Convention may be brought

directly against the insurer or other person providing financial security for

the registered owner’s liability. In such a case the defendant may invoke the

25defences (other than the bankruptcy or winding up of the registered owner)

that the registered owner would have been entitled to invoke, including

limitation of liability under any applicable national or international regime.

Furthermore, even if the registered owner is not entitled to limit liability, the

defendant may limit liability to an amount equal to the amount of the

30insurance or other financial security required to be maintained in

accordance with paragraph 1. Moreover, the defendant may invoke the

defence that the maritime casualty was caused by the wilful misconduct of

the registered owner, but the defendant shall not invoke any other defence

which the defendant might have been entitled to invoke in proceedings

35brought by the registered owner against the defendant. The defendant shall

in any event have the right to require the registered owner to be joined in the

proceedings.

11. A State Party shall not permit any ship entitled to fly its flag to which this

article applies to operate at any time unless a certificate has been issued

40under paragraphs 2 or 14.

12. Subject to the provisions of this article, each State Party shall ensure,

under its national law, that insurance or other security to the extent required

by paragraph 1 is in force in respect of any ship of 300 gross tonnage and

above, wherever registered, entering or leaving a port in its territory, or

45arriving at or leaving from an offshore facility in its territorial sea.

13. Notwithstanding the provisions of paragraph 5, a State Party may notify

the Secretary-General that, for the purposes of paragraph 12, ships are not

required to carry on board or to produce the certificate required by

paragraph 2, when entering or leaving a port in its territory, or arriving at or

50leaving from an offshore facility in its territorial sea, provided that the State

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