The Nairobi Wreck Removal Convention enters into force in Norway

Following the decision by the Norwegian government on 11 October 2024 to accede to the Nairobi Wreck Removal Convention, the Convention will enter into force in Norway on 11 February 2025. It will be given effect not only in Norway's exclusive economic zone, but also in its territorial waters. Norwegian legislation implementing the Convention into Norwegian law will enter into force on the same day as the Convention.
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The Wreck Removal Convention was adopted at an International Maritime Organisation diplomatic conference in Nairobi in 2007 and entered into force on 14 April 2015. It intends to provide a set of uniform international rules for the removal of ships that become wrecks as a result of a maritime casualty. Out of the 70 states where the Convention is presently in force, almost half have opted to apply the Convention not only in their exclusive economic zone, but also in their territorial waters.
The legislation implementing the Convention into Norwegian law was adopted by the Norwegian Parliament in 2018 and will introduce a dual system where the current national rules on wreck removal will continue to apply side-by-side with the Convention rules.
Dual system
Under the dual system the Norwegian authorities may, in each particular case, choose whether wreck removal shall be ordered on the basis of the Convention, as incorporated in the Norwegian Maritime Code, or on the basis of the existing national rules found in the Norwegian Harbour and Waterways Act, the Norwegian Pollution Act and the Norwegian Ocean Resources Act. Any claims for costs relating to locating, marking and removing a wreck will also follow the dual system.
There are a number of notable differences between the national rules and the Convention rules.
Whereas the Convention channels the obligation to remove a wreck and the strict liability relating to costs for locating, marking and removing a wreck solely to the registered owner of the ship, the current national legislation has a broader definition of the liable party.
Under the Convention, the national authorities may issue a wreck removal order if the wreck constitutes a "hazard", meaning that the wreck (a) poses "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. The threshold for ordering a wreck removal on the basis of environmental concerns is lower under the Pollution Act, where 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 when a final administrative decision on reimbursement has been made.
It remains to be seen how the differences will play out in practice.
Direct action
Ratification of the Convention will establish an obligation on the part of the owner of a ship of 300 gross tonnage and above to take out insurance against wreck removal liability and will create an automatic right for the authorities to claim directly against the ship's insurers for reimbursement of the wreck removal costs. This requires that the costs have in fact been incurred by the claimant.
The insurers can rely on the same defences as the shipowner against the claim, including the shipowner's right to limit liability under the applicable global limitation of liability rules. Norway has exercised the option under the Convention on Limitation of Liability for Maritime Claims 1976, as amended by the 1996 Protocol (LLMC 1996), to exclude wreck removal claims from the application of LLMC 1996, and has enacted separate, higher, global limitation of liability limits for wreck removal claims.
Since no automatic right of direct action exists under the current legislation, but is conditioned on the insolvency of the shipowner, claims are likely to be based on the Convention provided that the stricter requirements under the Convention are met.
It is, however, important to note that the duty to remove a wreck cannot be enforced against the insurers. Their liability is of a financial indemnity nature only.
Mandatory insurance certificates
Ships of 300 gross tonnage and above that are flying the Norwegian flag or calling Norwegian ports and offshore facilities will, as of 11 February 2025, be required to carry certificates proving that they comply with the compulsory insurance requirements under the Convention. The certificates will normally be issued on the basis of blue cards from the vessel's P&I club.
Norwegian ships have since 2015 been able to obtain Wreck Removal Certificates from the Danish Maritime Authority pursuant to an agreement with the Norwegian Maritime Authority.
As from 11 February 2025, the Norwegian Maritime Authority will issue such certificates to Norwegian ships. Ships that have already received certificates from the Danish Maritime Authority under the current regime can continue to operate with their existing certificates until the current certificate expires or for any other reason becomes invalid.