NEW CHALLENGES FOR THE LAW OF THE SEA: Hazardous and Historic Sunken Warships Craig Forrest
Director, Marine and Shipping Law Unit
TC Beirne School of Law
University of Queensland
Mary Rose, pride of King Henry VIII’s navy, sunk in July 1545 in the Solent, near the Isle of Wight
The Vasa sank after sailing less than a nautical mile in Stockholm’s harbour on its maiden voyage 10 August 1628. She was raised in 1961.
La Trinidad Valencera, foundered in September 1588 off Donegal Ireland after the failed Spanish invasion of England
La Trinidad Valencera
HMS Birkenhead
HL Hunley sank on February 17, 1864 having attacked and sunk the USS Housatonic in Charleston's outer harbor, with the loss of all eight of her crew
UNESCO Convention 2001
• Protects wrecks and other cultural heritage more than 100 yeas old
• Subjects removal to set of archaeological standards
• Applies to all maritime zones
Graf Zeppelin
Yamato
HMAS Sydney
Bismark
HMS Prince of Wales USS Arizona
HMS Royal Oak
HMS Royal oak
Lost in 1939 with 833 men . UK’s largest military grave
Image source ADUS
HMS Royal Oak oil slick
By 1996 1.5 tonnes lost per week
In 2000 accounted for 96% of total oil discharged in UK waters
Multi‐million dollar ‘hot‐tapping’ salvage of oil required
Blϋcher
German heavy cruiser sunk in 1940 of Norwegian coast
1,360 tonnes removed at cost of $7.1 million
30 tonnes still remain USS Mississinewa in FSM
USS Mississinewa
US Naval Oil Tanker Sunk in 1944 by Japanese Keiten
(manned suicide torpedo)
Loss of 63 US naval personnel and Japanese naval pilot
USS Mississinewa
Oil slick observed in August 2001
Approximately 6,600 ‐
9,300 tonnes remained on board
Environmentally sensitive lagoon
Ban of fishing resulted in significant local hardship
Photos source NOAA USS Mississinewa
USS Mississinewa
Photos source NavSea/PCCII/PALCOL
USS Mississinewa
Salvage cost approx $US 5 million
Photos source NavSea/PCCII/Pacol
President Coolidge
Hoyo Maru in Chuuk
In 1940, merchant tanker HOYO MARU converted to an auxiliary oiler. She was sunk at Chuuk in February 1944. Scale of the potential threat
• South Pacific Regional Environment Program (SPREP) WWII wreck strategy program and Atlantic, Mediterranean and Indian Ocean (AMIO) database list
• 7,807 vessels
• totalling about 34 million tons of sunken ships including 861 tankers
WWII sunken vessels
WWII sunken tankers
Scale of the potential threat
• South Pacific Regional Environment Program (SPREP) WWII wreck strategy program
• Database :
• 3,800 vessels lost in Pacific and East Asia
• totalling about 13 million tons of sunken ships
• including 330 tankers
• Predominantly Japanese (86%)
and USA (11%)
Dealing with the problem
• Flag States preservation claims and war grave concerns (requiring preservation in situ)
• Coastal State pollution concerns (requiring removal of wreck)
• Interests from salvors, often in relation to cargo carried
Modern day hazardous wrecks
Concerning incidents
• Mont Louise 1984
• Tricolor 2003
• An Tai 1997
• Lagik 2000
• MS Napoli 2007
Torrey Canyon 1967
1969 of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969 International Convention on Civil Liability for Oil Pollution Damage 1971 International Convention on the Establishment of an International Fund for Oil Pollution Damage
2007 Nairobi Wreck removal Convention Wreck Removal Convention aims
• Provides the coastal State with powers to have a wreck removed in TS and EEZ
• at the shipowner’s expense
• ensuring that shipowners are able to cover this possible expense through a system of compulsory insurance
A customary right of intervention?
• Torrey Canyon incident – either existing or emergent
• 1969 Intervention Convention – codification or new international rule?
• IMO in its introduction to the Convention “affirms the right of a coastal State to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate danger to its coastline or related interests from pollution by oil or the threat thereof, following upon a maritime casualty”.
1969 Intervention Convention
Parties to the present Convention may take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences
LOSC
• Article 221 of LOSC provides that nothing in the LOSC “shall prejudice the right of States … to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interest, including fishing, from pollution or threat of pollution following upon a maritime causality or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences”.
LOSC balance
Coastal state right to marine environment and some limit actions against foreign flagged vessels Flag states retain considerable regulation and enforcement over marine pollution
WRC balance
Transfers some control to coastal states in relation to pollution hazards AND introduces control for navigational hazards
Flag states agree that coastal state can act in this way ‐ eg
article 9(10) Sovereign immunity
• Article 4(2) Wreck Removal Convention 2007 declares that • This Convention shall not apply to any warship or other ship owned or operated by a State and used, for the time being, only on government non‐commercial service, unless that State decides otherwise
Sovereign immunity
• Article 5 of the 1989 London Salvage Convention declares that;
• this Convention shall not apply to warships or other non‐commercial vessels owned or operated by a State and entitled, at the time of salvage operations, to sovereign immunity under general principles of international law unless that State decides otherwise. Ownership and Sovereign immunity
United States retains title indefinitely to its sunken State craft unless title has been abandoned or transferred in the manner Congress authorized or directed. The United States recognizes the rule of international law that title to foreign sunken State craft may be transferred or abandoned only in accordance with the law of the foreign flag State. Further, the United States recognizes that title to a United States or foreign sunken State craft, wherever located, is not extinguished by passage of time, regardless of when such sunken State craft was lost at sea. Sunken Military Craft Act HR 4200, sec 1401
Warships – “out of the loop?”
• Excluded from Salvage Convention
• Excluded from the Wreck Removal Convention
• Excluded (at least for WWII wrecks) from the UCH Convention
• Subject to some uncertainty regarding scope of sovereign immunity
• Subject to some uncertainty in relation to coastal states right to protect itself from pollution threats Warships – “out of the loop?”
• Future pollution incidents WILL occur
• How coastal states, particularly in the Pacific, will deal with this when it arises requires further consideration
Comments, suggestions, very welcome