Merchant Shipping (Wreck Removal Convention) Regulations, 2015

NASSAU 14th October, 2015 MERCHANT SHIPPING (WRECK REMOVAL CONVENTION) REGULATIONS, 2015 Arrangement of Regulations Regulation PART I - PRELIMINARY 2 I. Ci tation ................... .. ............................................................................................ 2 2. Interpretat ion ............ .... .. ............................................... ... ..................................... 2 3. Application........................................................................................ . ......... .4 I)AH.T II - RF.:I}ORTING, LOCATING AND MARKING, AND REMOVING WRECKS 4 4. \Vrcck repons ........................................................................................................ .4 S. Locating and marking wrecks ................................................................................ 5 6. Removal by o\vner ................................................................................................. 5 7. Conditions regarding removal............................... . .................................... 6 8. Removal in deraIlI L ............................................................................................ 6 PART III - LIADlLlTV 6 9. Liability for costs ............................................................................... .................. 6 10. Limitation period ................................................................................................... 7 II. Suspended ship 's registry under bareboat charter .................................................. 7 PART IV - COMPULSORY INS URANCE 7 12. Insurance .............................................................................................................. 7 13. Wreck removal insurance certificate ..................................................................... 7 14. Ca ncellation and delivery up of certi ti cate..... ......... .. . ................................... 8 15. Third partics' rights against insurers .................................................................... 9 I'ART V - MISCELLANEOUS 10 16. Detention of sh ip ................................................................................................ 10 17. Fees ...................................................................................................................... 10 18. Gu idance on Wrecks Convention ........................................................................ 10 "exclusive economic zone" has the same meaning ascribed under section 8 of the Archipelagic Waters and Maritime Jurisdict ion Act (Ch 282); " haza rd" means any condition or threat that imposes a danger to navigation or may result in harmful consequences to the marine env ironment or damage to the coastline or related interests; " IMO" means the International Maritime Organization adopted by the United Nations in Geneva on I 7 March 1948; "i nsul'l!r" means (a) a company which carries on insurance business; or (b) a provider who supplies financial security, in accordance with the Wrecks Convention; "Minister" means the Mi nister responsible for Maritime Affairs; "ope ra tor" means a person, manager, organization, or the bareboat charterer who has assumed responsibility for the operation of the ship from the owner; "owne r" means (a) a person registered as the owner of the ship; (b) a person who owns the ship at the time of the accident, in the absence of regis Irati on; (c) a company, where a ship is owned by a State and operated by a company which in that State is registered as the operator of the ship; "Po rt Co ntroller" means the officer referred 10 under section 3 of the Port Authorities Act (Ch 269); "State of t he ship's registry" means (a) with regards 10 a registered ship, the Slate o f registration of the ship; and (b) with regards to an unregistered ship, the State whose nag the ship is emitled to ny; " te rrit ori:tI sea" has the same meaning ascribed under section 4 of the Archipelagic Waters and Maritime Jurisd iction Act (Gh 282); "Wrecks Convention" means the Nairobi International Convention on the Removal of Wrecks 2007 signed in Nairobi on ! 8 May 2007; " \Vrecks Convention State" means a State which is a party to the Wrecks Convention; Page · 3 "wreck removal insurllnce" means a comract of insurance or other financial security satisfying the requirements of Article 12 of the Wrecks Convention; "wreck removal insurallce certificate" means a certificate attesting the insurance or other financial security of a ship to cover liability under the Wrecks Convention. (2) Un less otherwise defined in the Act or these regulations, or unless the context so requires, words and expressions used in these regulmions shall have the same meaning ascribed to them in the Wrecks Convention. 3. Application. ( I) Pursuant to section 255 of the Act and subject to the provisions of these regulations, the Wreck~ Convention shall fonn part of the Laws of The Bahamas. (2) These regulations shall apply to (a) Bahamian sh ips engaged in commercia l activities, except 0) w,n;h;p' 0 ' "ml ,h;p'. 0' (ii) any other ship as determined by the Director; (b) foreign ships in The Bahamas' Convention area, except naval or military ships. PART II - REPORTING, LOCATING AND MARKING, AND REMOVING WRECKS 4. Wreck reports. (I) Where an accident results in a wreck in The Bahamas' Convention area, the master or the operator of a ship involved in the accident shall immediately report the wreck to the competent authority. (2) A report referred to under paragraph (I) shall state the name and the principal place of business of the owner and relevant information necessary to detennine whether the wreck poses a hazard, including (a) the precise location of the wreck; (b) the type, size and construction of the wreck; (c) the nature of the damllge to, and the condition of, the wreck; (d) depth of the water in the area; (e) tidal range and currents in the area; (f) particularly sensitive sea areas identified and, as appropriate, designated in accordance with guidelines adopted by the IMO, or a clearly defined area of the exclusive economic zone where special mandatory measures have been adopted pursuant to Anicle 211, paragraph 6, of the United Nations Convemion on the Law of the Sea 1982; (g) proximity of shipping roules or established traffic lanes; (h) tramc dellsity and frequency; (i) type oftmffi,; (j) 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 particu lar, the damage likely to result should the cargo or oil be released into the marine cnv ironmcm; (k) vulnerabi lity of pon facilities; (I) prevail ing meteorological and hydrographical conditions; (m) submarine topography of the area; (n) height of the wreck above or below the surface of the water at lowest astronomical tide; (0) acoustic and magnetic profiles of the wreck; (p) proximity of offshore installations, pipelines, telecommunications cables and similar structures; and (q) any other circumstances that might necessitate the removal of the wreck. 5. Locating and marking wrecks. (I) Where the competent authority receives a report concerning an accident which resulted in a wreck in The Bahamas' Convention area, the competent authority shall immediately inform mariners and nearby States of the nature and location of the wreck. (2) Where the competent authority determines that the wreck constitutes a hazard, the competent authority shall take all practicable steps 10 mark the wreck and publish such markings. 6. Removal by owner. (I) Where a ship has been involved in an accident which results in a wreck in The Bahamas' Convention area, and the competent authority has determ ined that the wreck constitutes a hazard, the competent authority shall take all reasonable steps to give a wreck removal notice to the owner Page· 5 to remove the wreck and produce evidence of insurance or other financial security. (2) The wreck removal notice referred to under paragraph (I) shall be in writing and shall specify (a) a reasonable deadline by which the owner shall remove the wreck; (b) that. if the owner docs nOl remove the wreck by that deadline. the competent authority may remove the wreck at the registered owner's expense; and (c) that the competent authority intends to intervene immediately in the event thatlhe hazard becomes severe. 7. Conditions regarding removal. Where the competent authority has issued a wreck removal notice to an owner, the competent authority may impose conditions for the removal of wrecks to ensure that the removal proceeds in a manner that is consistent with considerat ions of safety and protection of the marine environment. 8. Removal in default. The competent authority may remove the wreck. where (n) an owner does not remove the wreck by the deadline specified under regulation 6 or the owner cannot be contacted: (b) immediate action is required, and the State of the ship's registry and thc owner have becn informed. PART III - LIABILITY 9. Liability for costs. (I) An owner shall be liable fo r the costs of locating, marking and removing the wreck, unless the owner can prove that the ;Iccident that caused the wreck Page - 6 (n) resulted from an act of war excluding terrorism; (b) \\as wholly caused by an act or omission done with intent to cause damage by a third pany; (c) was wholly caused by the negligence or other wronglill act o f any Government or Olhcr authori ty responsiblc for the maintenance of lights or other navigational aids. (2) The owner is not liable fo r costs under this regulation if or to the extelll that liabil ity would contlict with (a) the International Convention on Civil Liabili ty for Oil Pollution Damage. 1992; (b) the International Convention on Civi l Liability for Bunker Oil Pollution Damage, 2001, together with amendments thereto in force on 28th February, 2015; (c) the Merchant Shipping (Maritime Claims Limitation of Liability) Act (ell. 281) and any regulations made thereunder. (3) Where the owner of each of two or morc ships is liable for costs under this regulation, but the costs for which each is liable cannot reasonably be separated, the owners shall be jointly liab le for the tOlal costs. (4) TIlis regulation docs not prevent the exercise of the right. if any, to limit liability. 10. Limitation period. An action to recover costs under regulation 9 may not be brought after the end of whichever of the following ends earlier (a) the period of 3 years from the date on which a wreck removal notice was given in respect of the wreck; or (b) the period of6 years from the date of the accident which resulted in the wreck. 11 . Suspended ship's registry under bareboat charter. Notwithstanding regulation 2 o f these regu lations and Article 1 of the Wrecks ConventIOn. where the registry of a Bahamian ship is suspended and that ship is registered in a foreign country for the duration of a b. .. reboat charter in accordance wilh section 25 of the Merchant Shipping Act. the "State of the sh ip's registry" is such foreign country. PART IV - COMPULSORY INSURANCE 12. Insurance. ( I) This Part applies to any ship of 300 gross tonnage or over. (2) A ship shall not enter or leave a port in The Bahamas. and neither shall any Bahamian ship enter any pon of any State unless suc h ship is in possession of an insurance cover or other financial security evidenced by the certificate referred to under regulation 13. Page - 7 13. Wreck removal insurance certificate. (I) The competent authority may, upon application, and (a) on being satisfied that a ship has wreck removal insurance or other financial security which satisfies the requ irements under these regulations and Article 12 of the Wrecks Convent ion; (b) upon payment of the fee specified under regulation 17, issue to the owner a wreck removal insurance certificate ("the certificate"). (2) For the purposes of thcse regulat ions, the certificate shall be (a) fo r a Bahamian ship, a certificate issued by the competent authority; (b) for a foreign ship registered in a Wrecks Convention State, a certificate that has been issued by or under the authority of the government of thai State; (c) for a foreign shi p registered in any other State, a certificate Ihat has been issued by the com petent authority or under the authority of the government of a Wrecks Convention State. (3) The certificate shall con tain (a) the name of the ship, disti nctive number or leiters and port of registry; (b) the gross tonnage of the ship; (c) the name and principal place of business of the owner, (d) the IMO ship identification number, (e) the type and duration of fi nancial security; (I) the name and principal place of bUSiness of insurer or other person giving financial security and, where appropriate, place of business where the insurance or other financial security is established: and (g) the period of val idity of the certi fi cate, which shall not be longer than the period of validity of the insurancc or other financial security. (4) Where the competent authority refuses an application referred to under paragraph (I), the competent authority shall within fourteen days from the date of such refusal give written notice to the owner stating the reasons fo r such refusal. (5) A master or operator shal1 (a) ensure that the certificate is carried on board the ship; and Page·8 (b) on request, produce the certificate to the competent authority, and where the ship is a Bahamian ship, also 10 any registrar, inspector or consu lar officer. (6) A person who fails to comply with the prov isions under paragraph (5), commits an offence and is liable on summary conviction to a fine not exceeding $10,000. 14. Cancellation and delivery up of certificate. (I) Where the owner, to whom a certificate has been issued under regulation 13, ceases to be thc owncr of the ship to which the certificate relMes, the certificate shall cease to be valid and the owner shall immediately deliver up the certificate to the competent authority for cancellation. (2) Where, at any time while a ccnificate issued under regulation 13 i:i in force (a) it is established in any legal proceedings that the contract of insurance or other financial security in respect of which the certificate was issued, is or may be treated as invalid; (b) circumstances arise in re lation to the insurer or guarantor named in the certificate, or where more than one is so named, to any of them. such that, if the certificate was applied for at that time, Ihe competent authority would be entitled to refuse the application under regulation 13. the certificate may be cancetled by the competent authority and, if so cancelled, shall, on request, imm ed iately be delivered up to the competent authority by the owner to whom a certificate has been issued. 15. Third parties' rights agains t Insurers, (I) Where (a) a sh ip has been involved in an accident as a result of which il or unything from it has become a wreck in The Bahamas' Convention area; (b) at the time of the accident the ship had wreck removal insurance; and (c) there is a wreck removal insurance certificate in relation to the insurance, a third party who is entitled 10 recover costs from the ship's owner under regulation 9, may recover stich costs from the insurer. Page.9 Dated this 6th day of October, 2015. Signed GLENYS HANNA-MARTIN Minister responsible for Maritime Affairs