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19 June 2019
Parliament recently decided that Norway will ratify the Nairobi Wreck Removal Convention and that the convention will be given effect not only in Norway's exclusive economic zone, but also in its territorial waters. Parliament also adopted legislation to implement the convention into Norwegian law once ratified.
As expected, the legislation, which was adopted in December 2018, will introduce a dual system where the national rules on wreck removal will continue to be in effect and the convention rules will be introduced as a parallel set of rules.
Under the dual system, the authorities may, in each particular case, choose whether wreck removal should be ordered on the basis of:
There are a number of differences between the existing national legislation and the convention. For example, although its provisions are based on strict liability, the convention channels liability solely to the registered owner of a vessel, whereas the national legislation has a broader definition of the liable party.
Further, under the convention, the threshold for ordering a wreck removal on the basis of environmental concerns is that the wreck "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.
The threshold in the Pollution Act, on the other hand, is lower; it is sufficient that the wreck "may" cause "damage or inconvenience" to the environment.
Another difference is that a reimbursement claim under the convention will become time-barred three years after a hazard has been determined in accordance with the convention. The Pollution Act has a five-year deadline from the date on which a final administrative decision on reimbursement has been made.
It remains to be seen how these differences will play out in practice.
The convention's ratification will also establish an obligation on the part of owners to take out insurance against wreck removal liability and create an automatic right for the authorities to claim directly against a vessel's insurers for reimbursement of wreck removal costs. This requires that the costs have been incurred by the claimant. The insurers can rely on the owner's right to limit liability under the applicable global limitation of liability rules. Since no automatic right of direct action exists under the current legislation, claims are likely to be based on the convention provided that its stricter requirements are met. However, the duty to remove a wreck cannot be enforced against the insurers; their liability is of a financial indemnity nature only.
The newly adopted legislation's entry into force is waiting for the adoption of various regulations concerning mandatory insurance certificates. For this reason, the convention's formal ratification has not yet taken place. Ratification can be expected in the near future.
For further information on this topic please contact Nina M Hanevold-Sandvik, Herman Steen or Morten Lund Mathisen at Wikborg Rein by telephone (+47 22 82 75 00) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Wikborg Rein website can be accessed at www.wr.no.
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