Accession of the Russian Federation to the Nairobi Convention: Will It Help Solve the Problem of Sunken Vessels?
All over the world, including on the territory of the Russian Federation, there is a huge amount of sunken property. These are wrecked ships, their wreckage, equipment, cargo and other items, regardless of whether they are afloat or under water, sank to the bottom or thrown into shallow water or the shore.
Often, sunken ships become a center of attraction for tourists, such as the bulk carrier RIO, which ran aground at the end of 2018 in the Krasnodar Territory near Gelendzhik, but at the same time they can pose a danger to navigation and a threat to environmental safety.
In 2007, realizing the need to resolve this issue at the global level, at the UN International Conference in Nairobi, the international community adopted the Nairobi Convention on the Removal of Wrecks. The provisions of this convention regulate legal relations within the framework of the removal of sunken ships from the territorial waters (exclusive economic zone) of the participating countries, ensuring the safety of navigation and environmental protection. The Convention provides for the payment of compensation for expenses incurred and establishes material consequences for shipowners (mandatory insurance payments under shipowners' liability insurance policies, due to which, in the event of a sinking, the ship will be raised).
Despite the accession of more than 50 countries to the convention, the issue of ratification of the international agreement by the Russian Federation began to be most actively discussed after the visit of Russian Prime Minister Mikhail Mishustin to the Far East in August 2020. As a result, on July 09, 2021, the Government of the Russian Federation adopted Resolution No. 1151 “On the accession of the Russian Federation to the Nairobi International Convention on the Removal of Wrecks of 2007.”
Currently, the State Duma of the Russian Federation is considering draft law No. 1212908-7 “On the accession of the Russian Federation to the Nairobi International Convention on the Removal of Wrecks of 2007” (with certain reservations and statements) and draft law No. 1219892-7 “On amendments to certain legislative acts of the Russian Federation”, regulating the mechanism of action of the convention on the territory of our country.
It should be noted that the current version of the Merchant Shipping Code of the Russian Federation, in particular Chapter VII “Sunken Property”, contains regulations for the recovery, removal and destruction of property sunk within the internal sea waters, the territorial sea of the Russian Federation and the waters of the Northern Sea Route, however, such actions are carried out by the owner of the vessel either at his own request, or in cases where the sunken property poses a threat to the safety of navigation or damage to the marine environment by pollution or impedes the implementation of fishing, port activities and work carried out in it (hydraulic and others). Thus, legislation in the field of merchant shipping today does not contain a direct prohibition on the deliberate abandonment of sunken ships in places of abandonment and does not establish the owner’s obligations for its unconditional removal. In addition, there is no administrative liability for such actions and (or) inaction.
At the same time, most often the costs of removing a sunken ship significantly exceed its value, which neutralizes the economic interest of the shipowner in carrying out ship lifting work, and the powers of authorities represented by seaport administrations to independently carry out operations to lift sunken property are limited to cases where a serious and immediate threat to the safety of navigation is created or an immediate threat of causing significant damage to the marine environment by pollution or there is a significant obstacle to fishing, activities in the port and activities carried out in it works (hydraulic and others). Moreover, the burden of bearing the costs is placed on the government agency, since it is often not possible to obtain any compensation from the shipowner for various reasons (due to lack of identification, foreign ownership or bankruptcy).
Author:Daria Zazhigaeva,maritime lawyer
GRATA InternationalRostov-on-Don