Introduction

Canada currently has three pieces of legislation dealing with various aspects of shipwrecks within its internal waters and territorial sea¹: the Canada Shipping Act, 2001, the Navigable Waters Protection Act and the Marine Liability Act.

Among other things, the Canada Shipping Act, 2001 (CSA, 2001) establishes the federal government's responsibility as the Receiver of Wreck to protect the interests of the owner of a ship that is shipwrecked or abandoned and to protect the interests of salvors to ensure that they are compensated for their efforts.

Specifically, Part 7 of CSA, 2001 deals with "found wrecks" where the owner of a wreck^{Overview of the Nairobi International Convention on the Removal of Wrecks, 2007} is unknown. Any person who finds and takes possession of such a wreck is required to report the wreck promptly to the Receiver of Wreck and provide information and documents requested. It is the Receiver of Wreck's responsibility to attempt to locate the owner and release the wreck or the proceeds of its disposition to any person who establishes their claim of ownership of the wreck to the satisfaction of the Receiver.

The person who has found and taken possession of the wreck and who has complied with Part 7 of the CSA, 2001 is entitled to a salvage award determined by the Receiver of Wreck. If no owner is located, then the Receiver of Wreck may dispose of a wreck after 90 days following the date that the wreck was reported and the proceeds of such disposition, less the salvage award, fees and expenses are to be paid to the Receiver General of Canada.

It should be noted that while the Receiver of Wreck has the authority to dispose of a wreck or derelict vessel after 90 days, there is no requirement for the Receiver to act on that authority.

The CSA, 2001 also implements the International Convention on Salvage, 1989³, which provides uniform international rules regarding salvage operations in recognition of the major contribution that efficient and timely salvage operations can make to the safety of ships and protection of the environment. One aim of the Salvage Convention is to provide adequate incentives to encourage salvors to undertake salvage operations for the purpose of saving life or property, and preventing damage to the environment. The Salvage Convention achieves that aim by establishing the right of salvors to a reward for a successful salvage operation based on criteria that recognize the salved value of the vessel or property saved and the level of effort and skill shown by the salvors as well as the expenses and dangers they faced. The Salvage Convention also requires due diligence with regard to the prevention and minimization of damage to the environment and provides for special compensation by the shipowner to salvors when the vessel or cargo constitute a threat to the environment.

Part II of the Navigable Waters Protection Act (NWPA) provides, in part, for the marking and removal of any wreck if the navigation of any navigable water over which Parliament has jurisdiction is obstructed, impeded or rendered more difficult or dangerous by the wrecking of any vessel.

The owner, master or person in charge of the vessel⁴ or thing⁵ by which any obstruction or obstacle is caused must give notice to the Minister of Transport, Infrastructure and Communities (Minister) or to the chief officer for customs at the nearest or most convenient port. The master, owner or person in charge of the vessel or thing must also place and, as long as the obstructions or obstacle continues, maintain a sufficient daytime signal and a sufficient light to indicate the position of the vessel or thing by night. The Minister may cause the signal and light to be placed and maintained if the owner, master or person in charge fails or neglects to do so. The owner has the obligation to immediately proceed with the removal of the vessel.

Section 16 of the NWPA also empowers the Minister to secure, remove or destroy any wreck, vessel or part of a vessel or any other thing that, for more than 24 hours:

• has impeded, obstructed or rendered navigation more difficult or dangerous; or,
• has been in a position where it is likely to impede, obstruct or make navigation more difficult or dangerous; or,
• has been cast ashore, stranded or left on any Federal property and has been an obstruction or obstacle to the use of that property as may be required for the public purposes of Canada.

The Minister may cause the vessel referred to in section 16 or its cargo, or other thing causing or forming part of the obstruction or obstacle to be conveyed and sold and apply the proceeds to the costs incurred in the marking, securing, removing, destroying or selling of the vessel, cargo or thing. The Minister may also recover the cost to mark, secure, remove, destroy or sell the vessel, cargo or thing from different persons⁶.

The Marine Liability Act (MLA) is a comprehensive framework dealing with the liability of shipowners and operators in relation to passengers, cargo, pollution and property damage. The MLA implements four IMO Conventions that may affect liability and compensation when there is a maritime accident including incidents that may result in a shipwreck. These conventions, which apply to Canada's internal waters, territorial sea and exclusive economic zone (EEZ⁷), include:

• Convention on the Limitation of Liability for Maritime Claims 1976, as amended by the Protocol of 1996 (LLMC). This convention provides a set of international rules by establishing the level of a shipowners' liability for property damage and personal injury arising from a marine casualty, including environmental and property damage arising from a shipwreck. However, Canada included a reservation with its ratification of the 1996 LLMC Protocol to exclude the shipowner's right to limit liability with respect to claims for the raising, removal, destruction or rendering harmless of a ship that is sunk, wrecked, stranded or abandoned, including anything that is or has been on board that ship;
• International Convention on Civil Liability for Oil Pollution Damage, 1969, as amended by the Protocol of 1992 (CLC). This convention establishes the level of a shipowner's liability for property damage and environmental remediation arising from an oil spill by a ship constructed or adapted for the carriage of oil in bulk (i.e., a tanker), including measures to prevent or minimize such damage. The CLC also requires tanker owners to carry insurance to cover their liability for oil pollution and provides for direct action against the insurers in the event of a claim;
• International Convention on the Establishment of the International Fund for Compensation for Oil Pollution Damage, 1971 (Fund Convention), as amended by the Protocols of 1976, 1992 and 2003. This convention establishes various funds for compensation of victims of oil pollution incidents where the aggregate amount of claims exceeds the tanker owner's limit of liability under the CLC. With Canada's ratification of the 2003 Supplementary Fund Protocol to the Fund Convention, which came into force on January 2, 2010, the funds will provide up to $1.2 billion per incident in additional compensation for oil pollution damage over and above the shipowner's limit of liability;
• International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, (Bunkers Convention). The Bunkers Convention provides a set of international rules governing the shipowner's liability for spills of bunker fuel used to propel the ship, including liability for measures taken to prevent or minimize the damage occasioned by such spills. In addition to establishing the level of liability for such fuel spills, the Convention requires that all ships over 1000 tonnes gross registered tonnage carry insurance to cover that liability;

While the various IMO conventions dealing with liability and compensation apply to Canada's exclusive economic zone (EEZ) as well as its internal waters and territorial sea, the rules that would apply to Canada's ability to respond to shipwrecks or vessels at risk of being shipwrecked within the EEZ are not clear. Article 56 of the United Nations Convention on the Law of the Sea⁸ (UNCLOS), provides that coastal states have sovereign rights within their EEZ with regards to natural resources, but their jurisdiction is limited to: i) the establishment and use of artificial islands, installations and structures; ii) marine scientific research and iii) the protection and preservation of the marine environment. Furthermore, UNCLOS does not appear to recognize a coastal state's jurisdiction with regard to shipwrecks and abandoned vessels in the EEZ that pose a hazard to safe navigation.

Canada would therefore have the right to take measures to respond to shipwrecks in its EEZ that pose a potential environmental threat. However, until recently there were no international rules governing the rights and obligations of shipowners, coastal states and flag states in respect of wrecks in the EEZ.

The Nairobi Convention responds to this concern by providing the first set of uniform international rules aimed at ensuring the prompt and effective removal of shipwrecks within a coastal state's EEZ. The Nairobi Convention establishes the rights and obligations of shipowners, flag states and coastal states with regards to the marking and removal of shipwrecks, including drifting ships that pose either a threat to navigation or the environment. Coastal states may also extend the application of this new Convention to wrecks located within their territory, including their internal waters and territorial sea.

The following overview highlights some of the main provisions of the Nairobi Convention. Stakeholders are encouraged to study the text of the convention.

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¹ According to the United Nations Convention on the Law of the Sea, the definition of territorial sea is from the coastal state's baseline up to a limit not exceeding 12 nautical miles. The UNCLOS definition of territorial sea has the force of law in Canada through the Oceans Act (Article 4). The internal waters is also defined in the Oceans Act as an area which consist of the waters on the landward side of the baselines of the territorial sea of Canada (Article 6).
² Under the CSA, 2001 a 'wreck' includes jetsam, flotsam, lagan and derelict and any other thing that was part of or was on a vessel wrecked, stranded or in distress, and aircraft wrecked in waters and anything that was part of or was on an aircraft wrecked, stranded or in distress in waters.
³ The International Convention on Salvage, 1989, was ratified by Canada and entered into force on July 14, 1996, subject to a reservation that the Convention does not apply when the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is situated on the sea-bed.
⁴ In the NWPA, a vessel includes every description of a ship, boat or craft of any kind, without regard to method or lack of propulsion and to whether it is used as a sea-going vessel or on inland waters only, including everything forming part of its machinery, tackle, equipment, cargo, stores or ballast.
⁵ In sections 15 to 18 and 20 of the NWPA, a thing that is or is likely to become an obstruction or obstacle to navigation, does not include a reference to a thing of natural origin unless the obstruction or obstacle, or likely obstruction or obstacle, is caused by a person.
⁶ Subsection 18 (2) reads as follows: A debt constituted by virtue of subsection (1) is due to and recoverable by Her Majesty in right of Canada:

• (a) from the owner, managing owner, master or person in charge of the vessel or other thing at the time of the wreck, sinking, partial sinking, lying ashore or grounding thereof, as the case may be, referred to in subsection (1); or,
• (b) from any person through whose act or fault or through the act or fault of whose servant that wreck, sinking, partial sinking, lying ashore or grounding was occasioned or continued.

⁷ The exclusive economic zone is defined in the Oceans Act as an area just beyond the territorial sea extending up to 200 nautical miles from the baselines of the territorial sea.
⁸ UNCLOS entered into force in Canada on 07 December 2003.