IMO

INTERNATIONAL MARITIME LAW INSTITUTE

Established under the auspices of the International Maritime Organization
A specialized agency of the United Nations

A LEGAL ANALYSIS ON THE ISSUES

INVOLVING THE WRECK REMOVAL
CONVENTION: A PHILIPPINE PERSPECTIVE

A Dissertation submitted in partial fulfillment of the requirements for the

award of the Degree of Master of Laws (LL.M.) in International Maritime
Law at the IMO International Maritime Law Institute

Submitted By: JOHONSAN A FABILANE

(THE PHILIPPINES)

Supervisor: DR. NORMAN MARTINEZ

Academic Year 2014-2015

[1]
 INTRODUCTION

1.1 The Hazards of Wrecks

Since the earliest days of shipping, various perils have always accompanied life at sea.
These perils have resulted to a vast number of maritime casualties; casualties that can either
be due to natural hazards (acts of God), or a good number of them can be considered as man-
made (caused by human error). Others remain entirely a mystery. The advances in technology
particularly in the design and propulsion of ships have considerably minimized the risk of
maritime casualties but the effects of the casualty particularly in the marine environment has
also exponentially increased.

These casualties if they occur on the high seas hundreds of miles from the nearest coast
have never posed a serious threat to the environment. But the ones that occurred near the
coast and at shallower depths have definitely presented hazards to navigation and to the
marine environment. Some of these shipwrecks have been abandoned in the belief that they
won’t cause any danger, but these have actually become ‘ticking environmental time bombs’
later to create havoc when they have been virtually forgotten.

These abandoned shipwrecks presents grave danger, yet, it is a fact that clean-up or
removal of these wrecks that have hazardous effects on the environment are prohibitively
high, and there is also this difficulty in finding applicable legal basis for such removal and as
with whom the liability lie. There is a considerable number of abandoned wrecks worldwide
and the numbers have reportedly increased in the past decades, yet identification and location
of these wrecks have not been done until recently.

Serious consideration on the dangers posed by shipwrecks came to be when the Torrey
Canyon incident happened on 18 March 1967. At a speed of 17 knots, she struck hard on the
Pollard Rock on the Seven Stones Reef, between the Isles of Scilly and Lands End. Oil
immediately began to spew out from the ruptured tanks. Not only was the ship aground on a
hard rock, but her hull had been deeply penetrated in a number of places. 1 This led to a
number of conventions to address threats from the ever increasing threats from shipwrecks
1
The Torrey Canyon, http://www.oilpollutionliability.com/the-torrey-canyon/, accessed 14 January 2015

[2]
and among this is the 2007 Nairobi International Convention on the Removal of Wrecks.

1.2 The Philippine Experience involving Wrecks

The Philippines being an archipelagic country relies heavily on its maritime trade for its
socio-economic development. The archipelagic nature of the country explains the natural
affinity of its people to the seas, either as the source of food or as a means of livelihood
considering that there are fifty-five (55) coastal provinces out of seventy-six (76) provinces in
the Philippines. It is of no surprise therefore that in almost all provinces and across the
archipelago one can find clusters of fisherfolks, seafarers, boatbuilders, shipping operators
and beach resort owners/operators.2

Shipping remains the major means by which islands are linked and through which
movement of goods and people is achieved. There is no known island that cannot be reached
by ship or small boat. The significant role of shipping is even more emphasized if one is to
consider the government’s objective of achieving national unity by bridging cultural values
and social norms3.

In view of the heavy reliance on the sea for the transport of people and goods around the
archipelago, the Philippines have had its share of maritime disasters, most notable of which
was the M/V Dona Paz Tragedy which resulted to more than 4000 casualties. Of more recent
note was the grounding of the USS Guardian, a US Navy minesweeper at the Tubbataha Reef
in Sulu Sea, Philippines. The 224-foot USS Guardian ran aground at about 2:25AM on
January 17 (2013) on Tubbataha Reef, a United Nations World Heritage Site. The ship’s 79
crewmembers were evacuated after hull breaches were found, altough no one was reported
injured. The ship had to be dismantled at sea at a cost of roughly $25 million.4

Then barely three months after the USS Guardian incident another ship, this time a
chinese fishing vessel, also got stuck in the said protected reef. A Chinese fishing vessel with

2
Country Report of the Philippines; http://www.unescap.org/sites/default/files/pub_2217_Part2-CountryReport.pdf, p. 93,
accessed 3 March 2015.
3
Ibid.
4
USS Guardian: CO, 3 others relieved after grounding review; http://www.stripes.com/news/pacific/uss-guardian-co-3-
others-relieved-after-grounding-review-1.214922, accessed 3 March 2015.

[3]
a crew of 12 ran aground in the popular marine sanctuary, where a US minesweeper got stuck
and was extracted following an elaborate salvaging operation.5

In the case of the USS Guardian, it was good that the U.S. made good with its
promise to pay the fine amounting to $2 million 6, however, in case of the chinese fishing
vessel, while the Philippine government expressed its intention to go after its owners, the
problem lies in the fact that it could not locate the owner of the vessel. These kind of
situations are what the 2007 Nairobi International Convention on the Removal of Wrecks
seek to remedy, in particular as to who shall be made liable for the removal of the wrecks.
The Philippines however, does not have a clear cut policy when it comes to wreck removal.

1.3 Objectives

This paper will seek to explore and analyze issues relating to wreck removal.
Discussion will begin on the provisions of the Wreck Removal Convention, its application on
those wrecks considered to be a threat to navigation or a hazard to the marine environment
that are located in the EEZ of a State Party. The ‘opt in’ clause will also be discussed on how
the same provisions can be applied in the archipelagic waters and territorial sea of the State.
The Convention provides for various rights and obligations in terms of locating removal of
wrecks that will be looked in detail, both from the perspective of the affected State and of the
shipowners. The Convention likewise provides for a strict liability and does not have a
limitation regime of its own. This will also be discussed in relation to other limitation regimes
such as the LLMC Convention.7

The Philippines is not a party to the Wreck Removal Convention. It currently does not
have any domestic law that specifically deal on wreck removal. The Philippine legislation
with at least a remote relation to wreck removal is mainly found in its archaic law on salvage,

5
Anda, Redempto, Now, its Chinese boat stuck in Tubbataha; http://globalnation.inquirer.net/71565/chinese-fishing-
vessel-grounded-at-tubbataha-reef/#ixzz3TL70p7vp; accessed 3 March 2015.
6
US pays out $2m after minesweeper damages protected reef; http://www.theguardian.com/world/2015/feb/18/us-
pays-out-2m-after-minesweeper-damages-protected-reef#; accessed 3 March 2015.
7
Convention on the Limitation of Liability for Maritime Claims, 1976.

[4]
or Act No. 2616, which was enacted way back in 1916 and is found to be generally obsolete.
Wreck removal is likewise found in the Philippine Coast Guard Law of 2009, however, it
does not expressly provide on how to proceed in the removal of a wreck in which the owner
is unidentified or cannot be located. This paper will thus review the current domestic laws
governing wreck removal and examine it vis-a-vis the Wreck Removal Convention.

Finally, a conclusion and recommendations shall be made.

1.4 The historical background of the 2007 Nairobi International Convention on the
Removal of Wrecks

It has always been said that man learns from his mistakes in the past, and the same is
true when it comes to conventions. A good many conventions for the safety of life and
property at sea came about as a reaction to tragedies at sea that many thought were even
impossible to happen. The 2007 Nairobi International Convention on the Removal of Wrecks
is no different.

There have been many maritime incidents that have happened before, but it is said
that it was the Torrey Canyon incident that primarily led to the discussions in coming up with
an international convention on wreck removal. When the tanker ran aground in the morning
around 9 a.m. Saturday, March 18, 1967. Oil immediately began to spew out from the
ruptured tanks.8

In the hope that the estimated 40,000 tons of remaining crude oil would be burnt off,
eight Royal Navy Buccaneers and three RAF Hunters armed with bombs and rockets were
dispatched to destroy her.9 The methods used in trying to contain the incident were largely
ineffective and the oil that spilled went on to pollute beaches in several countries. There were
however, concerns as to what the legal position would have been had the British Government
wished to intervene at an earlier date, and as to the lawfulness of bombing a vessel flying the
flag of a friendly foreign state whilst on the high seas outside British territorial waters.10

8
The Torrey Canyon, http://www.oilpollutionliability.com/the-torrey-canyon/, accessed 14 January 2015
9
Ibid.
10
De La Rue, et al.; Shipping and the Environment, Second Edition, Informa, London, 2009, p. 899

[5]
 However, it was not until in 1974/75 when the IMO Legal Committee conducted a
review of the national laws of member States on wreck removal with a view to introducing a
harmonizing instrument.11 However, nothing came out of this. It was not until in 1993 when a
draft convention was made during the 69th session of the IMO Legal Committee. Then in
1994, during the 70th session of the Committee, Germany, the Netherlands and the United
Kingdom submitted a further paper on this topic, arguing that an international treaty on wreck
removal was necessary to establish uniform rules for wreck removal operations in
international waters.12

Again, discussion on wreck removal was stalled due to other issues that were thought
to be of more pressing concern than wreck removal. Finally, after a long hiatus, in 2006, a
small working group from the CMI restarted the review on the text of the draft convention
and proceeded to propose some amendments, and in another meeting in London was
conducted on March of 2007 and made significant progress on the contentious issues
surrounding the drafting of the 2007 Nairobi International Convention on the Removal of
Wrecks. This eventually led to a successful resolution of the contentious issues and the 2007
Nairobi International Convention on the Removal of Wrecks was finally adopted in Nairobi
in that same year.

CHAPTER II

THE 2007 NAIROBI INTERNATIONAL CONVENTION ON THE REMOVAL OF

WRECKS

11
Griggs, Patrick, Wreck Removal: Draft Convention; CMI Yearbook 2005-2006; p. 376.
12
Shaw, Richard, The Nairobi 2007 Nairobi International Convention on the Removal of Wrecks, The Journal of
International Maritime Law, 2007, Vol. 13, Issue 6, p. 430..

[6]
 Prior to the 2007 Nairobi International Convention on the Removal of Wrecks, the
removal of wrecks was primarily left to the authorities of the coastal States on how to deal
and go about in removing the wrecks. This led to a very diverse approach to the removal of
the wrecks and differs from one country to another. This likewise led to uncertainty or
inconsistency in the application of national laws on the actual geographical location of such
wrecks. It was precisely because of this diversity in the treatment of wreck removal that the
Wreck Removal Convention sought to address.

The Convention recognizes that there is a need to come up with a uniform

international rules and procedures to ensure the efficient and effective removal of wrecks as
well as the adequate payment of compensation for the costs of the removal of such wrecks. It
has likewise recognized that majority of wrecks occur within the territorial sea if not the
internal waters of a coastal State which then may pose a hazard to navigation or a threat to the
environment and recognizes the authority of such State within its territory, hence the
Convention seeks to ensure that the measures taken by the coastal or the affected State must
be commensurate or proportionate to the hazard that the wreck poses.

2.1 General Principles and Objectives

The general principles and objectives13 of the Wreck Removal Convention likewise
obliges the coastal or affected State to implement such measures and 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. In doing so, the coastal or affected State must not unnecessarily
interfere with the rights and interests of other States including the State of the ship’s registry,
and of any person, physical or corporate, concerned. While the Convention allows a coastal
or affected State the right to take appropriate measures to remove a wreck it deems to pose as
a hazard, it nevertheless does not entitle a State Party to claim or exercise sovereignty or
sovereign rights over any part of the high seas. It is likewise endeavored that the States

13
Art. 2.

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Parties should co-operate when the effects of a maritime casualty resulting in a wreck involve
a State other than the Affected State.

2.2 Scope of Application

The Wreck Removal Convention limits its application to the EEZ if such has been
claimed by the coastal State. The geographical scope of the Convention is found in what is
called as the ‘Convention area’, which has been defined as:

“[...] 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 that
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.”14

The provisions of the Convention can only be made applicable to those wrecks which
poses a hazard to navigation or a threat to the environment, in the EEZ of a State Party which
has been established in accordance with international law. This means that the State must
have established its EEZ in accordance with the provisions of UNCLOS. In the absence of an
established EEZ, the Convention area will refer to the area adjacent of the State which
extends not more than 200 nautical miles from the baselines from which the territorial sea of
that state is measured.

It should be noted that the discussion on the Wreck Removal Convention started at a time
when serious discussions were being made in coming up with the Law of the Sea Convention
and among the novel issues being discussed was the issue of the exclusive economic zone.
Given the high interest being devoted on this issue by a great number of States, The IMO
may have deemed it prudent to wait until the successful passage or adoption of the UNCLOS.
With the experience coming from the Torrey Canyon incident and with the fact that unilateral
action of a State in the high seas was being frowned upon, the notion then of coming up with
a convention dealing with wrecks in the high seas would have been wont to problems
14
Art. 1(1).

[8]
particularly in balancing state interests and issues between the affected State and the Flag
State, without the definitive regime of the EEZ as brought about by the UNCLOS.

Recognizing the fact that most of the wrecks occur within the internal or archipelagic
waters and territorial sea of a State, the Wreck Removal Convention has put in place what is
called as the ‘opt in’ clause, in that a State Party may extend the application of this
Convention to wrecks located within its territory, including the territorial sea.15 Despite
however a State’s decision to extend the application of the provisions of the Convention to its
internal or archipelagic waters and territorial sea via the ‘opt in’ clause, such will be subject
to the provisions of Article 4(4)16 of the Convention. Should a State Party elects to exercise its
‘opt in’ clause, it must do so by notifying the Secretary-General of the IMO, at the time of
expressing its consent to be bound by this Convention or at any time thereafter. 17 If a State
Party, at a later time decides to withdraw from its decision to extend the application of the
provisions of the Convention to its internal waters or territorial sea, it may do so at any time
provided it shall make a notification of withdrawal to the Secretary-General of the IMO and
such notification of withdrawal shall take effect six months after its receipt by the Secretary-
General, unless the notification specifies a later date.18

In general, this Convention applies only if the wreck is located within the
‘Convention area’ and that both the Coastal or Affected State and the Flag State are parties to
the Convention. However, in case the affected State has opted in and the wreck is located in
that State’s territory, including its territorial sea, the Affected State may apply the Convention
to all wrecks regardless of whether the Flag State is a Party to the Convention or not.19
2.3 Definition of Wreck

15
Art. 3(2).
16
(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) Article 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 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 removal proceeds in a manner
that is consistent with considerations of safety and protection of the marine environment.
17
Art. 3(2).
18
Art 3(5).
19
Martinez Gutierrez, Norman A., Limitation of Liability in International Maritime Conventions: The Relationship between
Global Limitation Conventions and Particular Liability Regimes, Routledge, London and New York, 2011, p. 171.

[9]
 For a ‘wreck’ to be considered within the ambit of the provisions of the Wreck Removal
Convention, such a wreck must be within the meaning as provided in the Convention. The
Convention requires that the ‘wreck’ must have followed a ‘maritime casualty’ and the
Convention defines it as a collision of ships, stranding or other incident of navigation, or
other occurrence on board a ship or external to it, resulting in material damage or imminent
threat of material damage to a ship or its cargo. 20 Such a definition is all encompassing as to
include within its meaning any incident involving a ship whether internal or external of
origin, and such incident results in or is likely to result to material damage to the ship or its
cargo.

Then the Convention went on to define a ‘wreck’ following a maritime casualty to

mean:
(a) a sunken or stranded ship; or
(b) any part of a sunken or stranded ship, including any object
that is or has 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 danger are not already being taken.21

The term ‘wreck’ is so broadly defined under this Convention, to include not only any
part of a sunken or stranded ship, including any object that has been on board such a “ship”,
but also any object that is lost at sea from a ship and that is stranded, sunken or adrift at sea.
Thus any cargo washed overboard from a vessel, without mishap to the vessel itself, will fall
under the definition of a wreck, as will all floatsam, jetsam and lagan.22

2.4 Exclusions

Under Article 4 of the Wreck Removal Convention, it specifically states that it shall not

20
Art. 1(3).
21
Art. 1(4).
22
Forrest, Craig, At last: a convention on the removal of wrecks, The Journal of International Maritime Law, Vol. 14 Issue 5,
2008. p. 396.

[10]
apply to any measures being taken under the International 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.

The Convention has also broadly defined the term ‘ships’, however, it specifically
excluded from its application warships23 and other ships owned and operated by the State.

The Convention however, allows the state to extend the application of this Convention to
its warships or any other ship owned and operated by the State for non-commercial purposes.
In such cases, it shall notify the Secretary-General of the IMO of its intention to extend the
application of the Convention to its warships, specifying the terms and conditions of such
application24. Apart from warships, the Convention, though not specifically mentioning
‘historic wrecks’ have excluded it by virtue of Article 13 which provides that the rights to
recover costs under this Convention are extinguished is an action is not brought within three
years from the date when the hazard has been determined in accordance with this
Convention, or six years from the date of maritime casualty that resulted in the wreck.25

The Convention has likewise made certain provisions not applicable in case a State Party
has decided to ‘opt in’, meaning to include its internal waters and territorial sea in the
application of this Convention. Should a State Party extend the application of the Convention
to its internal waters and territorial sea, the provisions of Article 9, paragraphs 1, 5, 7, 8, 9
and 10 will not be given application. This is precisely because should a wreck occur within
the internal waters or territorial sea of a State Party, such wreck is already under the
sovereignty of that State. It thus follows that the State Party may take any measures it may
deem appropriate to remove such wreck within its internal waters or territorial sea it
considers a hazard under this Convention.
2.5 Definition of Hazard

The Convention provides that the wreck must not only be coming from a maritime
23
Art. 4(2) provides that The Convention shall not apply to any warship or other ship owned or operated by a State and
used, for the time being, only on Government non-commercial service, unless that State decides otherwise.
24
Art. 4(3).
25
Martinez Gutierrez, Norman A., Limitation of Liability in International Maritime Conventions: The Relationship between
Global Limitation Conventions and Particular Liability Regimes, Routledge, London and New York, 2011, p. 170.

[11]
incident, it must also be a hazard to navigation or that which may reasonably expect a to
result to a considerable damage to the environment or to the coastline or other related
interests of the affected State.26 By related interests, it is to mean such interests of the affected
State which may include maritime coastal, port and estuarine activities, including fisheries
activities, constituting an essential means of livelihood of the persons concerned; tourist
attractions and other economic interests of the area concerned; the health of the coastal
population and the well-being of the area concerned, including conservation of marine living
resources and of wildlife; and offshore and underwater infrastructure.27

For the coastal or the Affected State to be able to declare whether a wreck within its
‘Convention area’ poses a hazard to navigation or a threat to the marine environment, Article
628 of the Convention provides for the criteria to aid the Affected State in such determination.

2.6 Rights and Obligations under the Convention

2.6.1 Obligation of the Master or Operator of the Ship

The Wreck Removal Convention, it obliges the State Party to require both the master and
the operator of the ship under its flag, to report to the Affected State without delay when that
ship has been involved in a maritime casualty resulting in a wreck. 29 If the reporting
requirement has already been fulfilled by the master or the operator of the ship himself or
vice versa, then the other one is no longer obliged to report. The report must therefore contain
all the relevant information regarding the wreck so as to enable the Affected State to

26
Art. 1(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 interests of one or more States.
27
Art. 1(6).
28
Such criteria includes but are not limited to the following: the type, size and construction of the wreck; depth of the water
in the area; tidal range and currents in the area; 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 zone 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; proximity of shipping routes or established traffic lanes; traffic density and frequency; type of
traffic; 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;
vulnerability of port facilities; prevailing meteorological and hydrographical conditions; submarine topography of the area;
height of the wreck above or below the surface of the water at lowest astronomical tide; acoustic and magnetic profiles of the
wreck; proximity of offshore installations, pipelines, telecommunications cables and similar structures; and any other
circumstances that might necessitate the removal of the wreck.
29
Art. 5(1).

[12]
determine whether the wreck poses a hazard to navigation or a threat to the marine
environment.30 The information provided by the master or the operator of the ship will also
help the Affected State to know whether such wreck is covered by the Convention. It follows
likewise that this obligation is required when a State Party has opted to give the Convention
application to wrecks found within its territory such as the internal or archipelagic waters and
the territorial sea.

The Convention did not define the term ‘master’ but it is submitted that it means the
person exercising authority over the ship at the time of the occurrence of the maritime
casualty. The ‘operator of the ship’ on the other hand has been defined by the Convention as
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 all duties and
responsibilities established under the International Safety Management Code, as amended.31

2.6.2 Responsibilities of the Affected State

2.6.2.1 Location and Marking of Wrecks

Article 7 of the Convention obliges the Affected State, upon becoming aware of the
location of the wreck, to use all available means, including that of any of its state agencies or
organizations to warn all mariners including other States concerned, about the nature and
location of the wreck. The duty likewise includes the implementation of necessary practicable
steps to ensure the location of the wreck, if the Affected State has reasonable ground to
believe that the wreck poses a hazard.32
Upon determination that indeed the wreck poses a hazard, the Affected State must take
all the appropriate steps to mark said wreck. 33 The Affected State must also ensure that the
markings used must conform to the internationally accepted system of buoyage in use in the
area where the wreck is located.34 The Affected State is also mandated by the Convention to
30
Art. 5(2).
31
Art. 1(9).
32
Art. 7(2).
33
Art. 8(1)
34
Art. 8(2).

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promulgate the particulars of the marking of the wreck by use of all appropriate means,
including the appropriate nautical publications.35

2.6.2.2 Measures for the Removal of the Wreck

The Convention provides for measures to be taken to facilitate the removal of the
wreck. It mandates the Affected State that, upon determination that the wreck poses a hazard
within the meaning of this Convention, the Affected State must then immediately do the steps
as required under Article 9(1)36 of the Convention. The actual removal of the wreck is under
the responsibility of the registered owner as against the obligation to report which is the
burden of the master and the operator of the ship. In this aspect, the Convention is very clear
that as to the obligation for the removal of the wreck, it falls under the registered owner. By
channeling the liability to remove the wreck exclusively to the registered owner, the only
responsibility that the Convention imposes on the operator, together with the master, is to
report when a ship has been involved in a maritime casualty resulting in a wreck. 37 For
purposes of this Convention, the ‘registered owner’ has been defined as the 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. 38 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 company.39

The registered owner is then required to provide to the competent authority of the
Affected State, evidence of insurance or other financial security40 as required under this
Convention. For the removal of the wreck, the registered owner may engage the services of a
salvor or any contractor of his own choice.41 The Affected State however, may, before the

35
Art. 8(3).
36
The Affected State must: (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.
37
Martinez Gutierrez, Norman A., Limitation of Liability in International Maritime Conventions: The Relationship between
Global Limitation Conventions and Particular Liability Regimes, Routledge, London and New York, 2011, p. 172.
38
Art. 1(8).
39
Ibid.
40
Art. 9(3).
41
Art. 9(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 removal proceeds in a manner that is consistent with considerations of
safety and protection of the marine environment.

[14]
commencement of any operation to remove the wreck be allowed, place conditions to ensure
that the removal operations must proceed with due regard to the safety and protection of the
marine environment. Such conditions are applicable not only to the registered owner but also
to any person, salvor or contractor which the registered owner has engaged to conduct the
wreck removal.

The Wreck Removal Convention gives the registered owner leeway on how to
conduct the removal of the wreck. However, the affected State may, at times intervene, but
only to the extent of ensuring that the removal proceeds effectively in a manner that is
consistent with considerations of safety and protection of the marine environment. 42 The
affected State is required to provide a deadline within which the wreck should be removed. In
coming up with the deadline, the affected State should take into account the nature of the
wreck and the hazard it poses. In doing so, the affected State must 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, as well as inform the registered owner in writing that it intends to intervene
immediately in circumstances where the hazard becomes particularly severe.43

It is thus the obligation of the affected State, under this Convention, that upon
determination that the wreck poses a hazard and that it is within the ‘Convention area’, to
give the registered owner a written notice of wreck removal. In case the registered owner
does not remove the wreck within the time set in the deadline, or for whatever reason the
registered owner cannot be contacted, the affected State is then authorized to remove the
wreck in the most expedient and practical way available under the circumstances. The
obligation to conduct the removal operations with due regard to safety and protection of the
marine environment is likewise imposed upon the affected State44.
In circumstances where the wreck requires immediate action from the affected State,
the latter may do so provided that it has informed the Flag State where the ship was registered
and its registered owner accordingly45. It should be noted that what is required is only a notice
to be given to the Flag State and to the registered owner. The affected State can remove the
wreck immediately without need of securing consent from the Flag State or from the

42
Art. 9(5).
43
Art. 9(6)[b and c].
44
Art. 9(7).
45
Art. 9(8).

[15]
registered owner. This is so because the Convention, by virtue of Article 9(9) requires that
States Parties give their consent to the Affected State to act under paragraphs 4 to 8 of of the
same Article, where required. Again under such circumstances the removal operations must
be done with due regard to safety and protection of the marine environment.

2.7 Liability of the Owner

As previously discussed, the Wreck Removal Convention places liability on the

registered owner of the ship, and as such, the registered owner shall bear the cost of locating,
marking and removing the wreck. The Convention defines the term ‘removal’ to mean not
only removal but includes any form of prevention, mitigation or elimination of the hazard
created by a wreck.46 There are however exceptions from liability under the Convention
which the registered owner may invoke, such as if the wreck:

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

insurrection, or a natural 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 Government or other authority responsible for the maintenance
of lights or other navigational aids in the exercise of that function47.

The registered owner may also be exempt from liability to the extent that such costs
for the removal of the wreck would be in conflict with certain existing international
Conventions that are applicable and in force or an enactment implementing such
Convention.48 Thus, if a State Party to this Convention are also parties to other international
liability Conventions,49 then the registered owner can be exempted from liability if his
46
Art. 1(7).
47
Art. 10.
48
Rose, Francis D., Et. Al., Law of Salvage, Sweet and Maxwell, 8th Ed., 2013, pp. 736-737.
49
Art. 11(1) 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, 196910, as amended;
(b) the International Convention on Liability and Compensation for Damage in Connection with the Carriage of

[16]
liability under this Convention would be in conflict with such international liability regimes.
On the other hand, any measures for which a claim for salvage may arise under relevant
national law or international convention is not within the ambit of the provisions of this
Convention and shall remain to be governed by such national law or international convention.
The Convention further provides that nothing in the Convention shall affect the right of the
registered owner to limit his liability under any applicable national or international regime.50

2.8 Limitation of Liability

While the Convention does not provide for its own system of limitation of liability and
thus under the same, there is strict liability for the owners of ships whose wrecks fall under
this Convention, it does however provides that the owner may limit his liability under any
applicable national or international regime such as the LLMC Convention (as amended). 51
However, such right to limit under the LLMC Convention 52 is subject to the reservation
provision of the said Convention particularly on its scope of application. By making a
reservation under Article 18 thereof, in respect to Article 2(1)(d) and (e), a State Party will be
able to remove claims arising from wreck removal and cargo removal from the ambit of the
LLMC Convention, and thus the liability for claims on the removal of wreck under the Wreck
Removal Convention will remain strict and unlimited.
On the other hand, the registered shipowner may also limit his liability for claims for the
costs of removing the wrecks under applicable national legislation on limitation of liability.
There are however cases wherein a State Party though have made reservation to the LLMC
Convention, opts to enact its own national legislation on limitation of liability. If a State
which is a Party to the Nairobi Wreck Removal Convention has made a reservation to the
LLMC Convention, and has enacted special legislation on the removal of wrecks, there
would be strict liability under the Nairobi Convention, and although the LLMC Convention
will not apply, limitation of liability would be possible if, and to the extent that, it is
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 Liability 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.
50
Art. 11(2).
51
Martinez Gutierrez, Norman A., Limitation of Liability in International Maritime Conventions: The Relationship between
Global Limitation Conventions and Particular Liability Regimes, Routledge, London and New York, 2011, p. 171.
52
Limitation of Liability for Maritime Claims Convention, 1976.

[17]
recognized under relevant national law.53

2.9 Provision for Compulsory Insurance

The Wreck Removal Convention provides for a system of compulsory insurance. 54

State Parties to the Convention are obliged to require their ships of 300 gross tonnage and
above, flying their flag to maintain a wreck removal insurance or any other financial security,
which shall be in such amount equal to the limits under applicable national or international
regimes, but shall not exceed the limits set out in Article 6(1)(b) of the LLMC Convention.
The insurance required under the Wreck Removal Convention is to cover for any potential
liability that may arise hereunder.

Aside from the requirement of compulsory insurance, State Parties to the Convention
are also obligated to ensure compliance of the compulsory insurance system and as such they
are required to issue certificates to that effect. 55 The Certificate so issued in accordance with
this Convention attests that the registered owner has obtained an insurance or financial
security in accordance with this Convention. The State Party may delegate the issuance of
such certificate to an institution or organization duly recognized by the State Party to issue
the required certificate to be carried on board the ship.56

The Convention provides the Affected State two alternatives to pursue its claims for
the costs of wreck removal. The Affected State may proceed directly against the registered
owner for any claims arising from the wreck removal, or it may go against the insurer of the
ship or any other person providing financial security for the liability under this Convention. 57
The insurer or such person providing financial security, if are made as defendants to the case
for any claim for costs under this Convention may avail of the defenses available to the

53
Ibid. p. 200.
54
Art.12(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 liability 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, 197621, as amended.
55
Art. 12(2)
56
Art. 12(3)(a).
57
Art. 12(10) provides that claims 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.

[18]
registered owner, which may include the right to limit liability under any national or
international regimes. However, in case the registered owner cannot limit his liability, the
insurer or the person providing financial security and brought as defendant may limit his
liability to an amount equal to the amount of the insurance or other financial security required
under the Convention.

To further ensure compliance with this requirement, the Convention mandates State
Parties not to allow any ship entitled to fly its flag to which this article applies to operate at
any time unless a certificate has been issued regarding the required compulsory insurance.58

2.10 Time Bar

The right to recover costs under the Wreck Removal Convention is however, limited
to a certain period of time, the passage of which renders such claims as being barred from
being instituted. Claims for costs under the Convention must be brought within three years
from the date when the hazard has been determined by the affected State in accordance with
this Convention. The reckoning of the time therefore, is not from the time the wreck
occurred, but from the time said wreck was determined by the affected State to be a hazard in
accordance with this Convention.59 However, in no case shall an action be brought after six
years from the date of the maritime casualty that resulted in the wreck.

2.11 Dispute Settlement

In case of any dispute arising out of the interpretation or application of the provisions of
the Wreck Removal Convention, it provides that the contending State Parties shall seek to
resolve their dispute, in the first instance, through negotiation, enquiry, mediation,

58
Art. 12(11).
59
Art. 13.

[19]
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or
other peaceful means of their choice.60

The Convention endeavors the State Parties to settle their disputes through any of mode
of settlement as may be agreed by the parties. In the event of failure to settle the disputes
between State Parties, they may still resort to the dispute settlement system as provided under
Part XV of the UNCLOS, which apply mutatis mutandis, regardless of whether the States
party to the dispute are also States Parties to the UNCLOS.

2.12 Entry into Force

The Wreck Removal Convention provided that will it enter into force twelve months
following the date on which ten States have either signed it without reservation as to
ratification, acceptance or approval or have deposited instruments of ratification, acceptance,
approval or accession with the Secretary-General of the IMO.61 The Convention has already
entered into force on 14 April 2015, with the countries of Antigua and Barbuda, Bulgaria,
Congo, Cook Islands, Denmark, Germany, India, Iran, Liberia, Malaysia, Marshall Islands,
Morocco, Nigeria, Palau, and the United Kingdom having ratified or acceded to the treaty.62

CHAPTER III

PHILIPPINE LAWS RELATED TO THE REMOVAL OF WRECKS

60
Art. 15(1).
61
Art. 18(1)
62
The Nairobi Wreck Removal Convention enters into force, http://en.portnews.ru/news/198017/, accessed 13 April
2015.

[20]
 The Philippines being an archipelagic state owes very much from the seas to drive not
only its economy but its very existence. Its maritime area of 2.8M SQ KM is more or less
about nine times as large compared with its land area of 299,000 SQ KM. With a coastline
measuring about 35,000 KM, it is twice as long as that of the US and about 27,000 SQ KM of
which covers precious coral reefs as well as about 150,000 hectares of mangrove forests.

Since the dawn of its history, most of its communities have been established along the
coastlines and thus out of 80 provinces, there are 62 which have coastlines and 832 out of
1,496 municipalities are located on the coast.63 The Philippines depends very much on its
maritime industry to move people, cargo and services within and around the country, and thus
its shipping industry is vital to trade and communication within the country’s dispersed
region. With its strategic location at the crossroad of commerce in South East Asia, the
Philippines is considered as the Gateway of Asia.

Owing to the very nature of the shipping industry, the Philippines have had its share of
maritime incidents which resulted to serious loss of life and property. The causes of these
incidents ranged from weather related to human error. Though much of these incidents did
not result to wrecks being a hazard to navigation, there are some that despite occurring
several years ago, have recently posed a threat to the marine environment. The lack of
national legislation that would provide for clear cut procedures on the removal of wrecks,
coupled with the prohibitive costs of removing the wrecks have lead to the abandonment of
these wrecks by its owners.

3.1 The Philippine Law on Salvage64

The closest the Philippines has got to a national legislation on the removal of wrecks is
found in Act No. 2616 which is the Salvage Law of the Philippines. However, as can be seen
from its very name, this law governs salvage operations, which under the Philippine context
63
State of the Coral Triangle: Philippines, http://adb.org/sites/default/files/pub/2014/state-coral-triangle-philippines.pdf,
accessed 14 April 2015.
64
Act No. 2616, enacted 4 February 1916.

[21]
includes wreck removal operations. The said law was enacted way back in 1916 and is thus
considered to be outdated and thus needs a total revision to make it attuned to recent
developments.

A closer look on the law would reveal that it did not define what are those covered under
the said law. In fact under Section 1 thereof, it reads that in case of shipwreck (bold letters,
italics and underscoring supplied), the vessel or its cargo shall be beyond the control of the
crew, or shall have been abandoned by them, and picked up and conveyed to a safe place by
other persons, the latter shall be entitled to a reward for the salvage. From the said provision
it follows that everything that has been done concerning a shipwreck is considered a salvage
and that includes the removal of the wreck.

Further perusal of its provisions would show that indeed the law concerns that of a
salvage and was made at a time where wrecks were thought to never really pose a hazard
both to navigation and marine environment. The law therefore did really never envision the
issues that are being tackled under the Removal of Wreck Removal Convention. Despite
experiencing a number of maritime accidents, the Philippine Legislature somehow never felt
the need to enact a law that would specifically deal with removal of wrecks.

3.2 The New Coast Guard Law65

The government agency with the power to regulate salvage operations, including that of
wreck removal, is the Philippine Coast Guard (PCG). Created during the American
occupation, it started as the Bureau of Coast Guard and Transportation pursuant to Philippine
Commission Act No. 266.66

After the Philippines gained its independence, and with the advent of industrialization
and accelerated influx of maritime trade in the country, it called for a creation of a maritime
safety agency. Hence on 10 October 1967, Congress passed and enacted into law Republic
Act 5173, creating the PCG.
65
RA 9993, enacted 10 February 2010
66
Rodriguez, Rufus B., The Regulatory Laws and Cases on Land, Water and Air Transportation in the Philippines, Rex Book
Store, 1999, p. 92.

[22]
 Under RA 5173, it gave the PCG the power to destroy or tow in port sunken of floating
dangers to navigation as part of its performance of its function to develop, establish,
maintain, and operate aids to maritime navigation. 67 Through this law, the obligation of
regulating salvage operations to include wreck removal fell upon the shoulders of the PCG,
though said function was not specifically mentioned in the above law.

By 1974, Presidential Decree 601, known as the “Revised Coast Guard Law” was
issued.68 The said Decree provided as part of the specific functions of the PCG, to destroy or
tow in port sunken or floating dangers to navigation, including fish traps at or close to sea
lanes, and to issue permits for the salvage of vessels and to supervise all marine salvage
operations as well as prescribe and enforce rules and regulations governing the same.69 As
can be noted, the first part of the sentence merely reiterated what was already provided in the
older version of RA 5173. The change came in the part where the law specifically stated that
the PCG has the authority to supervise marine salvage operations as well as to prescribe and
enforce rules and regulations governing the such operations which was obviously lacking in
the previous law.

Still, the law referred to salvage operations in general, which necessarily included any act
of removing a wreck. In the performance of its rule making functions, the PCG in 1996
issued Memorandum Circular No. 06-96, Salvage Regulations. The purpose of the said
Circular is to prescribe guidelines on the salvage of vessels, including cargoes thereof,
wrecks, derelicts and other hazards to navigation.70 Clearly, the Circular was issued to
regulate not only salvage operations of vessels or cargo within the context of the Salvage Law
but also the removal of wrecks and derelicts and other hazards to navigation. The Circular
defined what it considers as a ‘salvage’ which is the rescue of a seriously damaged or
incapacitated ship and towing her to a safe place; breaking, scrapping, or refloating of a ship
or any object; and the removal of a sunken or wrecked ship, derelict or hazard including
cargoes thereof from the waters within the jurisdiction of the Philippines.71 The definition
specifically included the removal of a wreck or sunken ship, derelict or other hazards which

67
Section 3(i) of RA 5173.
68
Rodriguez, Rufus B., The Regulatory Laws and Cases on Land, Water and Air Transportation in the Philippines, Rex Book
Store, 1999, p. 92
69
Section 5(e) of PD 601.
70
Part II, Purpose, MC NO. 06-96 SALVAGE REGULATIONS.
71
Part IV Definition of Terms para (a), MC NO. 06-96 SALVAGE REGULATIONS.

[23]
may include cargoes that may have fallen or floated off such wreck or sunken ship which is
what is covered by the Wreck Removal Convention.

Then the Circular defined what is considered as a ‘wreck’ to be those vessels or structure,
fixed or floating, or any part or appurtenances thereof, which is no longer capable of
functioning in the manner of which it was designed or intended. 72 The definition of the wreck
under this Circular does not match that which is given by the Convention. It merely stated
that a wreck is either a vessel or structure which is either fixed or floating, or any part thereof
which is no longer functioning in the design it was supposed to function as opposed to that of
the Convention which stated that a wreck must have followed a ‘maritime casualty’.

The Convention defined a ‘maritime casualty’ to be that of a collision of ships, stranding

or other incident of navigation, or other occurrence on board a ship or external to it, resulting
in material damage or imminent threat of material damage to a ship or its cargo. Thus a vessel
that has become a derelict due to the fact that its crew abandoned it and has nothing to do
with any incident that may result to a material damage to the vessel cannot be a wreck within
the purview of the Convention. The definition of a ‘wreck’ under the Circular thus is not
limited to vessels as it says both ‘fixed or floating’, and that the reason as to why it is no
longer being used for the purpose it was built may or may not be due to a maritime casualty
as defined in the Wreck Removal Convention.

The Circular then provided a General Provisions section which essentially covers the
administrative aspect of the Circular. It provided as to who may be allowed to engage in the
business of and conduct salvage operations. The Circular also provided for the requirements
for the issuance of salvage permits. During salvage operations the salvor has its
responsibilities under the Circular in the conduct of the salvage operations and the obligation
of the PCG is only to monitor the salvage operations for possible oil spill.

Nothing in the Circular provides for cases where the owners of the wreck does not want
to conduct wreck removal operations or if the owner cannot be contacted or otherwise cannot
be located. The problem lies when the owner does not want to remove the wreck, the PCG is
then powerless to compel owners to remove the wrecks or otherwise sanction them for non-
compliance to the order to remove the wreck. In fact the Circular only punishes with fine
72
Ibid, para (c).

[24]
those who engage in salvage operations without having been issued a permit. The PCG
therefore feels the lack of enforcement powers to compel owners to remove their wrecks even
though the PCG has already determined that the same poses a hazard to navigation.

Though it was provided in the laws creating the PCG that it has the power to destroy or
tow in port sunken or floating dangers to navigation, including fish traps at or close to sea
lanes, the PCG somehow does not have any regulation on how to exercise this power.
Another problem that arise is that even if it still has a regulation governing the exercise of
this power to remove wrecks, there is still this grey area if indeed it can compel an owner to
remove such wreck without a judicial order. This adds to the reluctance of the PCG to
exercise its power to remove wrecks. Moreover, even if it can be said that the PCG has the
power to unilaterally remove the wreck, there is this question as to who shall cover the
expenses and if the PCG covers the cost of removing the wreck, will it still be able to recover
the costs of such removal from the owners of the vessel, and as to how much it can recover.

On 10 February 2010, RA 9993 or an Act Establishing the Philippine Coast Guard as an

Armed and Uniformed Service attached to the Department of Transportation and
Communications, Thereby repealing Republic Act No. 5173, as amended, and for other
Purposes, was enacted. It repealed the old Coast Guard Law, however, it retained the old
provision under RA 5173 insofar as its power to remove wrecks is concerned. Section 3
paragraph (g)73 of RA 9993 merely restated what was found in RA 5173 with a slight
modification by adding the words “which may cause hazards to the marine environment”.

In the Implementing Rules and Regulations or the IRR of RA 9993, however, it provided
a little more clarification on what the PCG can do when it comes to removal of wrecks that
are deemed hazards to navigation and to the marine environment. The IRR provided that with
respect to properties deemed hazardous to safe navigation, the PCG shall require immediate
removal thereof by its owner. The owner shall shoulder the cost of removing such hazard .74
such provision reinforces the authority of the PCG to compel shipowners to remove their
wrecks considered to be hazards to navigation or to the marine environment. It also clarified
as to who shall shoulder the cost of the removal of the wreck which placed it on the owner.

73
Sec. 3 (g), RA 9993 - To remove, destroy or tow to port, sunken or floating hazards to navigation, including illegal fish
traps and vessels, at or close to sea lanes which may cause hazards to the marine environment;
74
Rule 3 (g) 2, IRR of RA 9993.

[25]
 The IRR further provided that the PCG shall exercise the rights and assume the
obligations of the Philippines on wreck removal in accordance with applicable international
conventions.75 This may be the biggest indication yet that the Philippines may be
contemplating of acceding to the Wreck Removal Convention. RA 9993 and its IRR were
enacted two years after crafting of the Wreck Removal Convention and it is submitted that
the Convention must have been taken into consideration when the IRR was being drafted.

Unfortunately, the PCG has as of now not reviewed and revised its Salvage Regulation
which was issued based on an old law which has already been repealed. It would be more
beneficial for the PCG if it would issue a new regulation specifically for the removal of
wrecks

3.3 MARINA Circular No. 2009-2276

The administrative agency charged with the development, promotion and regulation of
the maritime industry in the Philippines is the Maritime Agency Authority or MARINA. In
consonance with its mandate, MARINA has the power and authority to enforce laws,
prescribe and enforce rules and regulations, including penalties for violations thereof,
governing water transportation and the Philippine merchant marine.77 by virtue of its rule-
making power, MARINA issued Circular No. 2009-22 to provide for the rules governing the
requirement of a mandatory marine insurance to cover liabilities in cases of wreck removal or
pollution.

The Circular aims to ensure that domestic shipowners/operators and all other
shipowners/operators operating ships in the domestic trade will be able to meet their financial
responsibility for any liability arising from pollution and wreck removal.78 It covers all all
persons, corporations, partnerships, cooperatives and entities operating any type of ships of
500Gt and above using persistent oil and non-persistent oil, for hire or compensation in the
domestic trade as well as Philippine-registered tankers/barges plying in the domestic trade.79
75
Rule 3 (g) 3, IRR of RA 9993.
76
Rules Governing the Mandatory Marine Insurance to cover Liabilities arising from Pollution and Wreck Removal.
77
Sec.12 (e), EO No. 125-A.
78
I. Objective, Circular No. 2009-22.
79
II. Coverage, para 1 and 2, Circular No. 2009-22.

[26]
Not included in the coverage are government ships not engaged in commercial activities.

The Circular requires all shipowners and operators of ships that are covered by this
regulation to maintain a mandatory marine insurance to cover for any liabilities arising from
pollution or wreck removal. Only ships of 500 GT are required to have this insurance cover,
while those that are less than 500 GT, the owners are encouraged to undertake any measures
to ensure that they have the financial capability to meet any financial responsibility for any
liability arising from pollution and wreck removal.80 It likewise provided for the limits of
liability for liabilities arising out of pollution and for those coming from wreck removal,81 and
also administrative penalties for failure to comply to the provisions of the Circular.

It is worthy to note that the Philippines though a signatory to the CLC and Fund
Conventions, is not a signatory to the LLMC Convention, hence it seems that under
Philippine jurisdiction, there is strict liability in cases of maritime claims. There are some
Philippine laws that have recognized the right to limit liability for maritime claims such the
Carriage of Goods by Sea Act (COGSA), which is actually an adoption of the US COGSA
way back in 1936, and sets the limit for goods at $500 per package, while the Code of
Commerce, enacted in 1896, puts the limit up to the value of the vessel. These laws however,
find no application when it comes to wreck removal.

CHAPTER IV

ANALYSIS, CONCLUSION AND RECOMMENDATIONS

4.1 Analysis

The 2007 Nairobi International Convention on the Removal of Wrecks came about when
80
IV. General Provisions para 4, Circular No. 2009-22.
81
VI. Limits of Liability, Circular No. 2009-22.

[27]
the world saw that there is already an increasing need for a safer way of navigation as well as
protecting the marine environment from threats arising out of maritime casualties. It was
likewise seen that serious threats may come from wrecks which if left alone in its location
would pose risks to safe navigation and the marine ecosystem. There were other conventions
that were drafted to deal with maritime casualties but somehow left a gap in dealing with
wrecks particularly those beyond the limits of the territorial sea of States.

The Wreck Removal Convention fills this gap. It seeks to provide for uniformity in the
rules and procedures governing the removal of wrecks to ensure that it is done in the earliest
possible time and efficiently so as to put no or minimal damage to the marine environment.
Furthermore, the Convention provides the State Parties with legal basis to deal with wrecks in
the EEZ, to secure its prompt removal once it has been ascertained to have adverse effects not
only on the safety of life and property at sea but to the marine environment as well.

As it has always been the case, the cost of removing the wreck has been among the
primary reasons as to why shipowners prefer abandonment of their vessels involved in
maritime casualties. It is likewise the same reason State authorities are reluctant in doing the
removal of the wrecks due to the uncertainty of recovering such expenses from the
shipowners. The Wreck Removal Convention solves this problem by providing a compulsory
insurance system to cover the liability for costs of wreck removal. The shipowners on the
other hand are still given the right to limit their liability up to the limits under the LLMC
Convention or in certain cases under the national laws of the State or any other international
regime.

The Wreck Removal Convention also allows State Parties to ‘opt in’ or to extend the
application of the provisions of the Convention within their territories, that is, the internal
waters or territorial sea of the State Parties. This will have the effect of harmonizing not only
the international regulations but also the national laws of State Parties on wreck removal with
the provisions of the Convention. This harmonization and uniformity of the rules is what is
being sought out by the Convention.

With the Convention having already come in force it is submitted that the international
community will now have a more clear-cut and streamlined regulations in dealing with
wrecks posing as hazards to navigation and to the marine environment. This will foster more

[28]
international cooperation among States and set the standards in the prevention and mitigation
of marine pollution coming from maritime casualties.

The Philippines, having yet to sign or accede to the Wreck Removal Convention prevents
it from enjoying the benefits brought about by the Convention. The dire lack of national
legislation on wreck removal has promoted the culture of abandonment of wrecks to the
detriment of its maritime shipping and its fragile marine environment. National agencies,
such as the Philippine Coast Guard and the Maritime Industry Authority cannot fully fulfill its
mandates when it comes to the removal of wrecks as there exists a lacuna in the laws which
should provide these agencies with the legal wherewithal to deal with these wrecks. This
legislative loophole enabled shipowners to escape from their liability and obligation to
remove their ships which have been involved in maritime casualties that have become wrecks
by tying the hands of national agencies into long-drawn judicial proceedings that by the time
it is finished, the shipowner has either may won the case and escapes liability or if found to
be liable, he has long gone and can never be found.

The present legislative set-up of the Philippines is inadequate and and actually creates
confusion among national agencies tasked to enforce laws for the safety of the maritime
industry as well as the protection of the marine environment. This confusion due to lack of a
national legislation results to lack of cooperation and coordination among concerned
government agencies leading to blaming and finger-pointing that in the end nothing has been
done to address the problem on wrecks.

By its accession to the Wreck Removal Convention, it is submitted that the Philippines
can enjoy the following benefits:

1. The Philippines would have an international regulation dealing on the removal of

wrecks that it could use domestically to deal with wrecks not only those in the EEZ
but also in its internal waters and territorial sea;
2. By ‘opting in’, or extending the application of the provisions of the Convention
within its territory, the Philippines will be able to fill up the legislative gaps and thus
equip itself with rules and regulations that would govern the removal of wrecks not
only in the EEZ but also in its internal waters and territorial sea;
3. The Convention’s strict liability against the shipowner ensures that the costs of the

[29]
 removal of the wreck will be shouldered by the shipowner and will work to the
advantage of the Philippines’ state agencies in cases where the wrecks have to be
removed immediately by said agencies;
4. The provisions of compulsory insurance and the right of action as against the insurers
of the ship or any other person providing financial security likewise guarantees that
costs for the removal of the wreck can still be recovered even if the registered owner
absconds, unable to pay or otherwise disappear or cannot be located;
5. The state agencies such as the Philippine Coast Guard and MARINA will have a
clearer mandate on how to deal with wreck removal whether within the territory of
the Philippines or in its EEZ.

These benefits as enumerated herein are not exclusive as there may be others that has not
been mentioned, but overall, it is viewed that accession to the Wreck Removal Convention by
the Philippines would work more to its advantage.

4.2 Conclusion and Recommendations

The Philippines, as discussed above still has to ratify or accede to the Wreck Removal
Convention. It likewise has no national legislation that could equip its national agencies in
dealing with the removal of the wrecks. As it is now, it would take years of judicial
intervention before a shipowner may be compelled to remove the wreck and by then the
wreck concerned may have already resulted to serious damage to the marine environment or
worse caused another maritime casualty which can cause greater damage that it should be.

It is submitted that it will be advantageous for the Philippines to accede to the Wreck
Removal Convention and to extend the application of the provisions of the Convention to
waters within its territory. By ‘opting in’, the Philippines will be able to use the Convention
in crafting a national legislation that would specifically deal with the removal of wrecks.

The provisions in the Convention regarding the recovery of costs of the wreck removal
operations augurs well to the national agencies of the Philippines such as the Coast Guard
and the MARINA as there will now be a clear-cut regulation as to who has the primary

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responsibility in the location, marking and removal of the wrecks as well as to who shall bear
the responsibility of shouldering the expenses of such operations. The strict liability regime
of the Convention ensures that the shipowner will fully compensate the costs of the removal
of the wreck.

As previously pointed out, the Philippines is not a signatory to the LLMC Convention
and so there can be no limitation of liability should it decides to accede to the Wreck
Removal Convention. However, it is probably one of the reasons why shipowners would
decide to abandon and not remove their ship due to the probability of having to shoulder the
whole cost of the removal. The Philippines likewise has no national legislation on limitation
of liability. In this regard the Philippines have the following options:

1.) Accede to the LLMC Convention without any reservation, in which case the
limitation of liability under its provisions will apply;

2.) Accede to the LLMC Convention, but making a reservation under Article 18 thereof,
in respect to Article 2(1)(d) and (e), and thus the liability for claims on the removal of wreck
or cargo will remain strict and unlimited;

3.) Accede to the LLMC Convention and still make a reservation, but instead of having a
strict and unlimited liability, the Philippines may enact a legislation that will provide for the
limits of liability for wreck removal.

It is submitted that the third option would be the better option for the Philippines. By
acceding to the LLMC Convention and making a reservation on Article 2(1)(d) and (e), the
Philippines can enact its own national limitation of liability regime to be made applicable in
cases of wreck removal. By enacting its own limitation of liability regime, the Philippines can
on its own raise or lower its limits of liability as it see it fit to do so depending on the
economic outlook of the country. This will also lessen the financial burden of the shipowners
in terms of shouldering the expenses of the removal of the wrecks.

All thing having been considered, it is recommended that it would be to the advantage of
the Philippines if it would accede to the Wreck Removal Convention and extend its
application to its internal waters and territorial sea of the Philippines.

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