The lack of clear authority under international law for the coastal states to intervene with regard to shipwrecks that pose an obstacle to navigation in their EEZ, endangering vessels and crews, has been a particular concern for a number of states, particularly those bordering on major navigational lanes.
Of equal concern is the potential risk to sensitive marine environments from oil and cargo that may remain onboard such wrecks and the costs associated with the marking and removal of hazardous wrecks.
The Nairobi Convention responds to these concerns by allowing coastal states to intervene when a shipwreck within their EEZ poses either a navigational or an environmental hazard while ensuring that shipowners remain strictly liable for costs associated with the marking and removal of hazardous wrecks. The Convention's provisions on compulsory insurance up to the limits in the LLMC should ensure that coastal states can recover at least some of their costs of measures to remove a wreck in the EEZ, even if the shipowner proves to be insolvent.
If the Convention's provisions were extended to Canada's internal waters and territorial sea, they could provide an extra measure of protection by requiring shipowners to maintain insurance to cover such costs. This protection may be particularly important considering the potential for a significant increase in the number of ships transiting the environmentally fragile Canadian Arctic. The Arctic is vast and remote and presents a significant challenge to anyone attempting to undertake a large-scale salvage or wreck removal operation. A shipwreck within Canada's internal waters, territorial sea, or the Arctic could lead to significant costs should the need arise for the government to urgently respond to prevent environmental damage.
Extending the Convention to Canada's internal waters and territorial sea could also provide Transport Canada with an additional tool to deal with any future incidents resulting in derelict vessels along Canada's coastlines that pose an environmental threat or could have harmful consequences for tourism or other economic interests.
In such cases, the owner of vessels over 300 gross registered tons would be responsible for their removal, as is the case today under the NWPA, but would then have the required insurance which, with the provision for direct action against insurers, would ensure that the removal was undertaken and not delayed or neglected for lack of funds to pay for the removal costs.
The impact on shipowners of the insurance provisions of the Nairobi Convention should be minimal as wreck removal expenses are among the risks covered in the standard policies of the Protection and Indemnity Clubs13 that insure most merchant ships. Most shipowners would likely carry such insurance in amounts equal to the level established by the LLMC and would therefore not require an increase in insurance coverage. While shipowners would remain responsible for any costs exceeding those insurable limits, the required insurance would likely be sufficient for most situations.
The provisions of the Convention appear to be generally consistent with those of the NWPA (i.e., the shipowner is responsible for costs and the Minister can take measures to intervene), however, the extension of the Convention to Canada's internal waters and territorial sea, would introduce new obligations or limitations that do not appear in the NWPA or result in the differences between provisions applicable to internal waters versus the EEZ.
For example, the Convention's obligation to set a "reasonable" deadline14 would replace the NWPA's provision enabling the Minister's to secure, remove or destroy any wreck if, in the Minister's opinion, the situations described in the provision are present for more than 24 hours. Also, the obligation in the Convention to inform the shipowner and the flag state before taking action might further infringe on the Minister's ability to intervene quickly.
The Convention's provision to take only those measures that are proportionate to the hazard and necessary to remove the wreck would modify the Minister's discretion under NWPA to secure, remove or destroy any wreck in a manner that he deems appropriate. The Nairobi Convention's definition of a wreck also limits its application to ships or anything lost from a ship, while the NWPA allows the Minister to intervene when navigation is obstructed, impeded or rendered more difficult or dangerous by any other thing, whether or not that thing is part of a vessel. For example, the Minister could act under the NWPA to removed a ditched aircraft that presents a hazard to navigation within the internal waters and territorial sea of Canada, but could not act under the Convention to remove such an aircraft that presents a navigational hazard within Canada's EEZ.
13 Protection and Indemnity Clubs are associations of shipowners that band together to provide mutual protection for risks not covered by underwriters.
14 Article 9. (6) (a) of the Nairobi Convention.