Claims for Wreck Removal
The Wreck Removal Convention
Australia's laws on wreck removal and cost recovery vary depending on the type of ship involved. At the Commonwealth level, the Navigation Act 2012 (Navigation Act) gives the Australian Maritime Safety Authority (AMSA) power to engage with the removal of wrecks from regulated Australian vessels (RAVs) and foreign vessels. For RAVs, AMSA's powers apply when the wreck is in Australia's territorial sea or exclusive economic zone (EEZ). For foreign vessels, AMSA's powers apply to those in Australia's territorial sea. If the wreck is considered marine pollution, AMSA can also recover costs linked to foreign vessels in the EEZ under the Protection of the Sea (Civil Liability) Act 1981. Australian state and territory laws also give relevant authorities powers of removal and cost recovery against domestic commercial vessels (DCVs) and recreational vessels that travel in State waters or share a State connection.
Recent incidents in Australia have highlighted the importance of having strong and clear laws for wrecks and debris falling from operating ships. For example, on 1 June 2018 the container ship YM Efficiency lost overboard 81 containers east of Newcastle. AMSA worked together with NSW Road and Maritime Services to find the lost containers and their contents and contracted Ardent Oceania for their removal and disposal. The recovery operation of 63 containers was successfully completed on 8 May 2020, at a total cost of about $17 million. AMSA has since started legal action against the owner Yang Ming, who has refused to take responsibility for the containers and their removal costs. More information is available on the Operational updates—YM Efficiency webpage. The APL England container loss was a similar incident which occurred on 24 May 2020, when 50 containers fell overboard southeast of Sydney. AMSA has pressed charges against the ship's master and is seeking security from the insurers to cover clean-up and removal costs, estimated at $22 million.
The Nairobi International Convention on the Removal of Wrecks 2007 (Wreck Convention) offers an alternative to the current fragmented framework in Australian waters. An International Maritime Organization (IMO) treaty, the Wreck Convention provides a set of uniform international rules to ensure prompt and effective wreck removal, including for objects lost at sea, such as shipping containers. It also sets up a compulsory insurance scheme, which allows State Parties to more easily recover costs. Australia's accession to the Wreck Convention could create a single framework for all the above ship types located in the EEZ, with Australia able to extend its application to wrecks located in the territorial sea.
The Department of Infrastructure, Transport, Regional Development and Communications is examining whether accession to the Wreck Convention would benefit Australia. To inform this, the department has produced a paper outlining the current wreck removal rules and what the Wreck Convention may offer. We are inviting interested stakeholders to submit responses to this paper and the questions it contains. Submissions, as well as any questions, can be directed to email@example.com.
Consultation for the Wreck Convention will be open until Tuesday 22 September 2020. All submissions will be published unless stakeholders prefer to remain anonymous. The input we receive will inform the next step of our analysis, which involves the development of a Regulation Impact Statement (RIS). The RIS will consider the options for accession on a cost-benefit basis.
- Discussion Paper: Australia's accession to the Nairobi International Convention on the Removal of Wrecks 2007 DOCX: 1106 KB PDF: 1489 KB
- Appendix 2: The Nairobi International Convention on the Removal of Wrecks 2007 PDF: 399 KB
Further information on the Wreck Convention is available on the IMO website.
The Nairobi International Convention on the Removal of Wrecks 2007 (Wreck Convention) was adopted on 18 May 2007, and entered into force on 14 April 2015. There are currently 53 contracting States to the Wreck Convention.
The Wreck Convention creates a legal regime for wreck removal, covering the reporting, locating, marking and removal of a wreck. A wreck includes objects, such as containers, lost overboard from a ship that itself has not wrecked. This regime applies within the ‘Convention Area’, which means the EEZ of a State Party. A State Party can extend this application to wrecks located within the territorial sea.
Wreck removal responsibilities apply to both the Affected State and the ship owner. For an Affected State to take removal measures, it must prove that the wreck came from a ‘maritime casualty’ and poses a ‘hazard’. ‘Maritime casualty’ is broadly defined to include an incident of navigation. ‘Hazard’ is similarly broad, allowing for consideration of a State’s ‘related interests’. Where a wreck from a State party ship poses a ‘hazard’, the Affected State has to ensure all reasonable steps are taken to locate and mark the wreck. The Affected State must also help with its removal.
Liability for wreck removal sits with the ship owner. The WRC requires owners of ships 300 gross tonnage and above to have insurance to cover wreck removal costs up to the limits of liability set out under the Convention on Limitation of Liability for Maritime Claims 1976. The Affected State then has the power to bring any claims for wreck related costs directly against the owner's insurer. The ship owner has defences and exceptions to liability that they can pursue.
Salvage is also covered under the Wreck Convention, with an Affected State only having limited ability to influence operations in the EEZ. The Affected State has more power if the salvage operation happens in the territorial sea.
Australian Privacy Principle 5 Notice
Your submission, including any personal information supplied, is being collected by the Department of Infrastructure, Transport, Regional Development and Communications (the department) for the purpose of gathering feedback on a discussion paper on the Nairobi International Convention on the Removal of Wrecks (Wreck Convention) in accordance with the Privacy Act 1988 (the Privacy Act).
The department will use this information to inform the options for a possible accession to the Wreck Convention which will then be examined in a Regulation Impact Statement (RIS) to be developed later this year.
Your personal information will be stored securely by the Department. It may be used to contact you to clarify or discuss your submission, to contact you about additional consultation opportunities as part of the development of the RIS or to make further contact with you about the consultation process. Your personal information will not be disclosed to any other third parties, except in the circumstances outlined below.
Submissions, in part or full, including the name of the author may be published on the department's website or in the Government’s response, unless the submission is confidential. Confidential submissions (including author name) will not be published. Private addresses and contact details will not be published or disclosed to any third parties unless required by law.
Submissions will only be treated as confidential if they are expressly stated to be confidential. Automatically generated confidentiality statements or disclaimers appended to an email do not suffice for this purpose. If you wish you make a confidential submission, you should indicate this by ensuring your submission is marked confidential.
Confidential submissions will be kept securely and will only be disclosed in the following circumstances:
- in response to a request by a Commonwealth Minister;
- where required by a House or a Committee of the Parliament of the Commonwealth of Australia; or
- where required by law.
The department may also disclose confidential submissions within the Commonwealth of Australia, including with other Commonwealth agencies, where necessary in the public interest.
Please note that in order to protect the personal privacy of individuals in accordance with the Privacy Act any submissions containing sensitive information, personal information or information which may reasonably be used to identify a person or group of people may not be published, even if not marked as confidential.