Emeka Akabogu June 21 2017 Legal issues arising from wrecks and their removal Akabogu & Associates | Shipping & Transport - Nigeria Emeka Akabogu Shipping & Transport IntroductionLegal regimeRights and responsibilitiesCommentIntroductionWhen shipwrecks occur, they often pose navigational and environmental hazards and thus their urgent removal is necessary. Nigeria has had its fair share of wrecks, and in response on April 7 2017 the Nigerian Maritime Safety and Administration Agency (NIMASA) directed that all abandoned ships should be removed from Nigerian territorial waters.Legal regime Nigerian law recognises shipwrecks and the danger they pose to navigational safety and the marine environment. The legislation governing wrecks in Nigeria includes:the Merchant Shipping Act 2007;the Nigerian Maritime Administration and Safety Agency Act 2007; andthe Nairobi International Convention on the Removal of Wrecks 2007 (although this has not been implemented into national law).Although it is not as extensive as the Merchant Shipping Act in terms of wreck provisions, the Nigerian Maritime Administration and Safety Agency Act stipulates under Section 22 that the agency should "receive and remove wrecks" and under Section 44 that the agency should make regulations pertaining to wreck removal.Section 360 of the Merchant Shipping Act defines a 'shipwreck' to mean:"a sunken or stranded ship, or any part thereof, including anything that is on board such a ship or which is stranded, sunken or in danger at sea and lost at sea from a ship; or about, or that may reasonably be expected to become, a wreck by reason of-(i) collision, stranding or any other incident of navigation; or(ii) any other occurrence on board the ship or external to it, resulting in material damage, or imminent threat of material damage, to the ship."The act also defines a 'hazard' as a situation where a shipwreck poses a danger to navigational safety or where the wreck in question threatens the marine environment. 'Removal' under the Merchant Shipping Act is defined as "any form of prevention, mitigation or elimination of hazard proportionate to the hazard". This update outlines the rights and responsibilities of the parties involved regarding wreck removal, within the context of the recently issued NIMASA directive.Rights and responsibilitiesThe existence of a wreck and its removal leads to the confluence of different legal interests. Typically, affected persons include:the shipowner,the receiver of the wreck; andthe inhabitants of the area where the wreck was found.Below is an exploration of the rights and responsibilities of these entities.ShipownerPrimarily, it is the shipowner's responsibility to remove the wreck. However, for various reasons the removal of the wreck may not take place immediately. While the Merchant Shipping Act establishes NIMASA as the receiver of wrecks, the agency is not required to immediately remove a wreck following discovery. Rather, Section 367 of the Merchant Shipping Act provides that the receiver must "set a reasonable deadline" by which the shipowner must remove the wreck. The shipowner must then be notified in writing of the deadline and informed that should he or she fail to remove the wreck, the receiver will do so at the shipowner's expense. When a shipowner chooses to remove the wreck in accordance with Section 366, he or she may do so themselves or hire the services of a private salvor. If a receiver fails to inform the shipowner – regardless of whether the wreck is regarded to be hazardous, as the act requires the receiver to notify the shipowner of its intention to act immediately when the hazard is severe – the receiver will have acted against the law.ReceiverNIMASA is the official receiver of wrecks in Nigeria. As the official receiver, the agency bears the responsibility for wreck removal when the shipowner does not do so after being given notice. The receiver's duties include:determining whether a wreck is hazardous;marking hazardous wrecks;removing hazardous wrecks; andsetting the deadline for removal – where a shipowner elects to remove the wreck.When the receiver performs its statutory duty of removing a wreck, ordinarily it should be reimbursed by the shipowner. However, there are instances where the shipowner may refuse to reimburse the receiver or where the wreck itself is not claimed by anyone. In the case of the former, a claim for wreck removal must be made which creates a maritime lien over the vessel in question and a sister ship. In this case, until remuneration has occurred, the receiver's lien remains inextinguishable. In the case of the latter, if a wreck remains unclaimed and there is no one to pursue, according to Section 379 of the Merchant Shipping Act, as long as the receiver has been in possession of the wreck for at least a year, it is permitted to sell the wreck.The receiver also plays a vital role in outlining the conditions of the removal operation when a shipowner elects to remove the wreck or decides to use a salvor. The Merchant Shipping Act notes that when this occurs, the receiver must consider the threat to navigational safety and to the marine environment when outlining conditions.Third-party rightsBefore removal, a wreck may have been lying ashore a coastline for some time and this can lead to rights of action against the vessel for various reasons (eg, causing the degradation of the marine environment or being an eyesore). The Merchant Shipping Act does not cover the rights of action of such persons. However, Article 12 of the Nairobi International Convention notes that despite the Merchant Shipping Act not covering this matter, the liability of the shipowner to such persons is not extinguished. Rather, it is advised that such persons seek remedy under the legal instruments through which they can successfully hold the shipowner liable or even in tort.CommentThe issues discussed in this update are broad in scope. However, considering the impact of shipwrecks on the environment and the legal issues that arise in relation to their existence and removal, a discourse on the law governing shipwrecks is necessary.For further information on this topic please contact Emeka Akabogu at Akabogu & Associates by telephone (+234 1460 55550) or email ([email protected]). The Akabogu & Associates website can be accessed at www.akabogulaw.com.