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RECOVERING AND REMOVAL OF WRECKS AND SUNKEN OBJECTS

RECOVERING AND REMOVAL OF WRECKS AND SUNKEN OBJECTS. Dr. sc. Adriana Vincenca Padovan ADRIATIC INSTITUTE OF THE CROATIAN ACADEMY OF SCIENCES AND ARTS European Maritime Day, Koper, 30th May 2013. Raising, recovering and removal of wrecks and sunken objects.

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RECOVERING AND REMOVAL OF WRECKS AND SUNKEN OBJECTS

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  1. RECOVERING AND REMOVAL OF WRECKS AND SUNKEN OBJECTS Dr. sc. Adriana Vincenca Padovan ADRIATIC INSTITUTE OF THE CROATIAN ACADEMY OF SCIENCES AND ARTS European Maritime Day, Koper, 30th May 2013

  2. Raising, recovering and removal of wrecks and sunken objects • The need for the amendment of the Maritime Code: • raising of sunken objects, including the compulsory wreck removal regulated as a separate maritime law concept until 2004; • In 2004 the entire chapter of the MC dealing with raising of sunken objects and compulsory wreck removal deleted, some administrative issues partly regulated within the chapter on salvage, the explanation being that the raising of sunken objects is simply a form of salvage; • The Law on Inland Navigation and Ports (Zakon o plovidbi i lukama unutarnjih voda) 2007 contains a special chapter regulating the concept of the raising of sunken objects, incl. compulsory wreck removal (similar to the old deleted chapter of the MC 1994);

  3. Raising, recovering and removal of wrecks and sunken objects • The need for the amendment of the Maritime Code (ctd.): • Raising of sunken objects and wreck removal: primarily administrative maritime law concept (relationship owner of wreck - State); • Salvage: private law (relationship owner of the salved property – salvor); • Removal of (substandard) ship as regulated under the Art. 171. of the MC is not wreck removal; • Lacuna in the law – no rules regulating the procedure and the regime of liability relating to the raising, recovering and removal of sunken objects and wrecks.

  4. Raising, recovering and removal of wrecks and sunken objects • MC 2013 PART VIII, CHAP. VI. (arts. 840.a – 840.z): RAISING AND REMOVAL OF WRECKS AND SUNKEN OBJECTS • Primarily administrative law provisions regulating the relationship between the owner of the wreck/sunken object and the State; • plus private (incl. property) law provisions: the law of finds and the private law implications of the abandoned wrecks/sunken objects.

  5. MC 2013 PART VIII, CHAP. VI. (arts. 840.a – 840.z): RAISING AND REMOVAL OF WRECKS AND SUNKEN OBJECTS • I. GENERAL PROVISIONS • II. PROVISIONS ON RAISING OF WRECKS AND SUNKEN OBJECTS (voluntary, recovery) • III. PROVISIONS ON COMPULSORY REMOVAL OF WRECKS AND SUNKEN OBJECTS

  6. MC 2013 PART VIII, CHAP. VI. (arts. 840.a – 840.z): RAISING AND REMOVAL OF WRECKS AND SUNKEN OBJECTS • I. GENERAL PROVISIONS • Definitions of wreck, sunken object, marine casualty, hazard, related interests (affected by the hazardous wreck/s.o.), removal, raising, bona fide finder, etc. - implementing the definitions from 2007 Nairobi WRC and adding some new definitions relating to the voluntary raising/recovering of wrecks and sunken objects and the law of finds; • Territorial scope of application: voluntary raising – territorial sea and internal waters; compulsory removal – t.s., i.w., continental shelf and the eco-fisheries zone; • The owner's obligation to remove the wreck/s.o. - strict liability • Wrecks and s.o. remaining in the sea for more than 2 years become the property of the State; • General duty to report of the wreck/s.o. • Additional protection of historical, cultural and military wrecks.

  7. MC 2013 PART VIII, CHAP. VI. (arts. 840.a – 840.z): RAISING AND REMOVAL OF WRECKS AND SUNKEN OBJECTS • II. PROVISIONS ON RAISING OF WRECKS AND SUNKEN OBJECTS • Administrative procedure, regulating the relationship between the owner of the wreck/s.o. that voluntarily undertakes the raising/recovering operations and the state (no determination of hazardness); • Licencing and control of the operations; • The law of finds regarding abandoned wrecks/s.o. • Special procedure for the rasing/recovering undertaken by the State and by the bona fide finder of wreck; • Custody of the recovered wreck/s.o. by the State or bona fide finder; • Acquisition of ownership over the abandoned wreck by the bona fide finder;

  8. MC 2013 PART VIII, CHAP. VI. (arts. 840.a – 840.z): RAISING AND REMOVAL OF WRECKS AND SUNKEN OBJECTS • II. PROVISIONS ON RAISING OF WRECKS AND SUNKEN OBJECTS (ctd.) • Due respect to the minimal protection of the original (unknown) owner's rights through the prescribed provisions of notification, periods of prescription. • The rules on public sale of the recovered wreck/s.o. snd the distribution of the proceeds. • Liability of the contractor performing the raising operations – subjective, presumed • The contractor's lien and the right of retention of the recovered wreck/s.o. securing his claim for the costs of the operations.

  9. MC 2013 PART VIII, CHAP. VI. (arts. 840.a – 840.z): RAISING AND REMOVAL OF WRECKS AND SUNKEN OBJECTS • III. PROVISIONS ON COMPULSORY REMOVAL OF WRECKS AND SUNKEN OBJECTS • Implementation of 2007 Nairobi WRC, plus extention to all the other sorts of sunken and stranded objects (not only wrecks as defined under the 2007 WRC); • Determination of hazard; • Reporting, locating marking and removal of wreck/s.o. (administrative procedure) • Owner's liability for the removal costs – strict liability • Compulsory insurance for the costs of wreck removal (all vessels over 300 GRT) • No limitation of owner's liability • Limitation of the insurer's liability – LLMC 1996 • Direct action against the insurer;

  10. MC 2013 PART VIII, CHAP. VI. (arts. 840.a – 840.z): RAISING AND REMOVAL OF WRECKS AND SUNKEN OBJECTS • III. PROVISIONS ON COMPULSORY REMOVAL OF WRECKS AND SUNKEN OBJECTS (ctd.) • The State's lien and the right of retention on the removed wreck/s.o. Securing the claim for the costs of removal, incl. the right of sale at the public auction and the rules on distribution of the proceeds; • The State's security rights rank higher than the privileges prescribed by the MC (immediately after the costs of the judicial sale); • The contractor's third party liability – subjective, presumed; • Limitation of actions (the State's claim for the removal costs) – 5 years from determination of hazard • Period of prescription - 10 years from becoming aware of the wreck/s.o.

  11. REMOVAL OF SUBSTANDARD SHIPS • MC 2013 Art. 171. • Substandard ships identified as such in the process of the ship safety inspection (PSC); • It shall be ordered that such ships be removed; • The right of state to intervene and to remove; • Removal includes the sale of the ship at the public auction • State's lien on the removed ship to secure the claim for the costs of removal • Rules regulating the notification, preclusive periods, distribution of the profits of the sale, court deposit of the excess of the proceeds.

  12. MARINE OFFENCES • Breaches of particular provisions relating to raising and removal of wrecks and sunken objects by the owners, masters, finders and contractors are defined as marine offences and adequate fines are prescribed.

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