Authorities' rights to order wreck removal expanded by new harbours act - International Law Office

Introduction
Previous act
Key provisions of new act
Future legislation
Comment

Introduction

On January 1 2010 the new Harbours and Fairways Act (19/2009) entered into force, replacing the earlier Harbour Act. Previously, the authorities had a statutory right to order wreck removal in the interest of safe navigation and environmental protection. Under the new act, the authorities' rights to order wreck removal have been expanded.

In light of new challenges faced by the shipping industry, the main objective of the new act is to establish a legal framework which will contribute to the development of Norwegian ports into national and international logistical hubs, and the effective and safe transport of goods and persons in Norwegian waters.

Previous act

Previously, the authorities had a statutory right to order the removal of wrecks only to ensure safe navigation (Section 18(3) of the Harbour Act), and where a wreck posed an environmental threat pursuant to the Pollution Act (6/1981).

The Pollution Act remains in force, including its rules regarding wreck removal.

Key provisions of new act

The provision of the new act which expands the authorities' rights concerning wreck removal is set out in Section 35(1), which states that:

"The Authorities can pursuant to the act order that those responsible for a vessel, vehicle, or object having been sunken, stranded, or left abandoned, shall clean up or remove the vessel etc. within a specified time-limit when necessary due to the navigability, safe traffic, or other use or management of the waters. If the order pursuant to the first sentence is not complied with within the designated time-limit, those responsible may instead be ordered to pay the reasonable expenses of a third party employed by the Authorities to carry out such clean-up or removal."

In comparison with the previous act, this provision greatly expands the authorities' right to order wreck removal. An example of a situation where a vessel owner may now be ordered to remove a wreck is where the wreck hinders transport by sea or other traffic in the relevant fairway or where it is a hindrance or inconvenience to the operation of the harbour. Further, regard for businesses in the immediate coastal area, as well as for other local groups may give the authorities sufficient grounds to issue a wreck removal order (eg, where a wreck hinders pipe laying).

The further expansion of the authorities' rights in relation to wreck removal is set out in Section 35(2):

"The registered owner or the actual owner of the vessel, vehicle or object at the time that the vessel etc. sank, or was stranded or left abandoned, and/or at the time when the order for wreck removal was given, is regarded as responsible pursuant to this provision."

Previously, the only party which could be issued with a wreck removal order was the owner of the vessel at the time when it sank, became stranded or was abandoned. This provision now includes any subsequent owner which holds title at the time the order to remove the wreck is issued. This new provision corresponds with existing rules regarding wreck removal in the Pollution Act.

Section 2 of the new act governs geographical scope and may also expand the authorities' rights with respect to wreck removals. This provision corresponds with provisions in the previous act, except that Section 2(3) states that the scope of the new act may be widened by the government to include the Norwegian Economic Zone.

Consequently, the authorities' rights to order wreck removal may be widened not only with respect to the grounds on which they can issue a wreck removal order, but also with respect to the geographical area in which they are entitled to issue such orders.

Future legislation

In May 2007 the International Convention on the Removal of Wrecks was adopted by the International Maritime Organization. Norway actively contributed to the negotiation and drafting of the convention, which applies to wrecks in a country's economic zone and establishes a legal basis for states to remove wrecks which constitute a danger. The convention has not yet entered into force.

Comment

Owners of vessels which operate in Norwegian coastal waters may, where a grounding or other casualty occurs, find themselves more likely to become subject to a wreck removal order as Section 35 of the new act increases the grounds on which the authorities can issue such orders.

In addition, any subsequent owner which takes title after a grounding or other casualty occurs and holds title at the time the removal order is issued may also be held responsible by the authorities, which can now choose whether to issue the wreck removal order to the previous owner, the existing owner or both.

For further information on this topic please contact Gaute Gjelsten or Mari Gjerstrøm at Wikborg Rein by telephone (+47 22 82 75 00), fax (+47 22 82 75 01) or email (ggj@wr.no or mgj@wr.no).