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December 13, 2022.

Montenegro about to ratify the 2007 Nairobi Wreck Removal Convention

On its last session on 8th December 2022, the Government of Montenegro adopted a Proposal of the Law on Ratification of Nairobi International Convention on the Removal of Wrecks, 2007 („WRC“). After the Law passes the legislative procedure and is adopted by the Parliament, Montenegro will become the party to the WRC in accordance with rules of international law.

This important activity of the Government reflects the tendency to ensure that national maritime sector is developed in accordance with green economy principles, as envisaged in the Strategy of the Government for Development of Maritime Economy 2020-2030. Furthermore, ratification of WRC is a one step further for Montenegro to become a full member of the Paris MoU on port state control.

Montenegro decided to use the opt-in clause prescribed under Article 3(2) of the WRC and extend the application of the Convention to wrecks located within territorial sea and internal waters of Montenegro, on which the IMO Secretary General will be informed during the process of ratification.

The WRC is an important international legal instrument combining the public, environmental aspects of maritime law and special liability regime of shipowners and insurers related to locating, marking and removing the wreck.

The core of the WRC is to give rights to the coastal states to take proportionate measures in relation to the removal of wrecks which pose a hazard for the state and possibility to reimburse the expenses thus incurred.

Therefore, Montenegro shall have right and obligation to locate wreck, determine whether the wreck poses a hazard in accordance with the Convention, urgently warn the mariners and states concerned on the nature and location of the wreck, invite the registered owner to remove the wreck and eventually, to remove the wreck by the most practical and expeditious means available. As per Article 10 of the WRC, the registered owner of the wreck shall be liable to the state for costs of locating, marking and removing the wreck.

Following Article 12 of the WRC, the registered owner of a ship of 300 gross tonnage and above shall maintain insurance or other financial security, such as a guarantee of a bank or similar institution, to cover liability under WRC in an amount equal to the limits of liability under the applicable national or international limitation regime, but in all cases not exceeding an amount calculated in accordance with article 6(1)(b) of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended. This requirement had already been implemented in Montenegrin law, by virtue of Article 33 of the Law on Safety of Maritime Navigation (Off. Gazette of Montenegro nos. 62/2013, 6/2014, 47/2015, 71/2017, 34/2019 and 77/2020) which covers not only liabilities of the shipowner arising from the WRC, but liabilities for other maritime claims as well. Provisions of Article 33 referred to above transpose the EU Directive 2009/20/EC into Montenegrin legislation.

Important feature of the WRC is a right of direct action against the insurer or other person providing financial security for the registered owner’s liability, which is a helpful tool in hands of a state when the registered owner of a wreck vanishes before the wreck is removed, which is often the case.

The ratification of the WRC will have important role within set of rules for protection of marine environment in Montenegro. However, to take the full advantage of the Convention and protect not only its territorial sea but the area beyond and adjacent thereto, Montenegro is expected to declare the exclusive economic zone or other respective zone in accordance with international law (Article 1, paragraph 1, point 1 of the WRC). Even though the existence of EEZ is recognized by the Law on the Sea (Official Gazette of Montenegro nos. 17/2007 and 6/2008) enacted after regain of Montenegrin independence, the official international declaration of Montenegrin EEZ will have to wait for maritime delimitation between Montenegro and its neighbours in the Adriatic Sea.