Wreck Removal Convention Bill
Baroness Stowell of Beeston Excerpts(13 years, 5 months ago)
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Baroness Stowell of Beeston
My Lords, I thank the noble Lord, Lord Berkeley, for initiating this lively and interesting debate which the noble Lord, Lord Davies of Oldham, promised me at Second Reading. I am sorry that he is not in his place, but I welcome the noble Lord, Lord Rosser, to the Front Bench for this Committee stage.
Your Lordships will not be surprised that I support noble Lords who have spoken in opposition to these amendments. As I pointed out at Second Reading—and as every noble Lord contributing to today's debate understands—the costs associated with removing a wreck can be substantial and also difficult to recover, particularly as at the moment there is no straightforward obligation on ship owners to be responsible for the removal of their wreck.
The Bill builds on the well-developed arrangements that already exist for dealing with maritime casualties. Above all, it provides legal certainty by placing the primary responsibility for the removal of a wreck that poses a danger to navigation or the environment on the ship owner and ensuring that, if the authorities have to step in, the owner will pay their costs for removing it. Under the Bill, the liability of the ship owner is strict; the claimant does not have to prove that the owner was negligent or at fault.
The amendment put forward by the noble Lord, Lord Berkeley, puts some of this certainty at risk. It would delete not just the discretionary power to direct authorities to remove a wreck, but, in doing so, the statutory link to cost recovery under the convention. This was referred to by the noble Lord, Lord Greenway. The Secretary of State's discretionary power to direct, included in the Bill, ensures that authorities will benefit from the convention's cost-recovery provisions when removing a wreck.
The noble Lord, Lord Berkeley, said that if this amendment were to be agreed, there might be occasions when the authorities would choose to carry out or participate in the removal of a wreck in any case. If that amendment were to be accepted, ship owners or insurers would undoubtedly argue that as there is no explicit linkage to the convention's cost-recovery provisions, they do not need to pay an authority's costs. As I have already said, the fact that that direction is in the Bill invokes the connection to the convention. That argument would be reinforced and could lead to all costs having to be recovered through harbour fees or the fund because the ship owner or insurer would be able to point to the inconsistency that the amendment would create because proposed new Section 255C, which provides a similar statutory link in respect of locating and marking, would remain in place, thus allowing authorities to recover those costs direct from the owner or insurer, just as the Bill intends for all costs. There would be direction for locating and marking but not for removal.
In addition to creating inconsistencies, these amendments would also delete the provisions in proposed new Section 255F(4) for the explicit extension of the general lighthouse authorities' areas of responsibility to the edge of the United Kingdom's convention area, which noble Lords will know is up to 200 nautical miles from shore. As such, a ship owner or insurer would doubtless claim that a general lighthouse authority had no statutory basis on which to remove a wreck outside territorial waters and that therefore no payment was required.
The Bill's direction regime removes the real risks of such disputes by linking the authorities clearly and simply to the convention's cost recovery scheme. With the Bill imposing strict liability on the ship owner to remove a wreck and requiring mandatory insurance, it is clear to me that the risks of a shortfall in expenditure for recovering wrecks will actually be significantly less for these authorities than those they now experience. Other noble Lords have already pointed that out. As I understand it, as a percentage of GLA budgets, the costs of dealing with wrecks are already very small. The noble Lord, Lord Greenway, mentioned 0.04 per cent. However, to remove the provision allowing the general lighthouse authorities to obtain reimbursement for unrecoverable expenses from the General Lighthouse Fund on the rare occasion that it is not possible to recover all costs would be at odds with existing and established arrangements. Indeed, it would leave the GLAs with no obvious means by which to make up a shortfall, should they need to. I am concerned that the combined effect of these amendments would be to leave authorities wary of undertaking any wreck removal, notwithstanding what the noble Lord, Lord Berkeley, said, even though they have existing powers and experience. If that were to happen, it would be in no one’s interest.
In summing up, I reiterate that the Secretary of State's powers of direction are discretionary, but they must exist and appear in the Bill for all the authorities to enjoy the benefits of the convention, as they have every right to do. I expect SOSREP to take control in the manner he now does under existing powers. As the noble Lord, Lord Greenway, described, SOSREP is aware of the authorities' capabilities, experience and capacity. If he needs to issue directions, I expect him to act reasonably and to issue them only to those he thinks capable of fulfilling them, not least for the reasons the noble Lord, Lord Addington, referred to. I will leave it to the Minister to expand further on this point if he wishes. For these reasons, I ask the noble Lord to withdraw his amendment at the appropriate time.
Earl Attlee
I am grateful to my noble friend Lady Stowell for her full response to the amendment moved by the noble Lord, Lord Berkeley. The noble Lord referred to discussions yesterday, and I am very happy to continue them, not least because they are so interesting, because the noble Lord genuinely seeks a solution to these problems. I understand his very real concerns, and I am delighted to have the opportunity to give a fuller response in Committee.
It may be helpful to noble Lords if I say a few words about the memorandum of understanding between the Department for Transport and the GLAs. This will provide guidance and understanding about how the convention would work in practice. The Committee will understand that the development of the MoU is in its early stages, as it will be a while before the convention comes into force. The noble Lord, Lord Berkeley, will want to keep abreast of developments, and I am sure that I will be able to facilitate that at the appropriate point.
Wreck Removal Convention Bill
Baroness Stowell of Beeston Excerpts(13 years, 6 months ago)
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Baroness Stowell of Beeston
My Lords, before I get to the contents of the Wreck Removal Convention Bill, I declare that, unlike other noble Lords scheduled to speak today, I am not a shipping expert. Indeed, that was the first thing I said to my honourable friend the Member for Suffolk Coastal, Dr Therese Coffey, when she asked me to steer the Bill through your Lordships’ House after she had, very ably and successfully, steered it through another place. However, after reading the Bill it was clear to me that I did not need to be a shipping expert to understand why it was important and why I should agree to Dr Coffey’s request. In short, what jumped out at me from this Bill and the international convention it seeks to ratify is that it will remove an unfair burden on the British taxpayer and put liability in its rightful place.
Over the past few weeks, although I have improved my knowledge of shipping—not least because of many informative and enjoyable discussions with some of your Lordships—I remain a novice. However, I am a novice full of admiration and respect for all those who work in the UK shipping industry and in all the agencies responsible for maintaining and protecting our harbours and coastal waters. Therefore, it is my great pleasure and privilege to introduce the Bill.
Your Lordships will be pleased to hear that the Wreck Removal Convention Bill is relatively short and consists of just two clauses. The United Kingdom, which is surrounded by some of the world’s busiest shipping lanes, is particularly vulnerable to the consequences of maritime casualties. Thankfully, such instances are rare. However, we can never be complacent. In this Bill we have an opportunity to implement the International Maritime Organisation’s International Convention on the Removal of Wrecks. This international convention would build on the well developed arrangements that already exist for dealing with these incidents, on the part not only of the Maritime and Coastguard Agency but of the conservancy, harbour and general lighthouse authorities, which have responsibility for dealing with wrecks that are, or are likely to become, an obstruction or danger to navigation or lifeboats in service within their respective areas. It is anticipated that after enactment the provisions will be commenced by an order made to coincide with the entry into force of the convention, which will be 12 months following the date on which 10 states have ratified it. The Bill will not apply to historic wrecks—that is, any wreck that occurred before its entry into force.
A wreck, which may be a ship, part of a ship or something that was on board a ship, can cause a number of major problems. It may constitute a hazard to navigation, potentially endangering other vessels and their crew. It may also cause substantial damage to the marine and coastal environments, depending on what is in the ship or its cargo. Consequently, the costs associated with locating, marking and removing a wreck can be substantial. However, those costs can also be difficult to recover, particularly where a wreck has been abandoned by its owners, so inevitably the taxpayer and payers of light and harbour dues risk having to bear a significant proportion of these costs, which is totally inappropriate.
The Bill would address these issues by implementing the convention’s provisions in the United Kingdom, its territorial waters and an area equivalent to an exclusive economic zone that extends from its territorial waters up to 200 nautical miles from the shore. Most importantly, the Bill places the primary responsibility for the removal of a wreck that poses a hazard to navigation or the environment in this area on the ship owner. It would also provide the Secretary of State with the necessary powers to ensure that all reasonable steps are taken to locate and mark a wreck.
In doing so, the Secretary of State would have the discretion to direct conservancy, harbour and general lighthouse authorities to mark the wreck and to exercise or not their existing powers for dealing with the wreck. Crucially, it would also provide the Secretary of State with the necessary powers to intervene and remove the wreck if the owner does not do so expeditiously or at all. In doing so, he may act through the Maritime and Coastguard Agency or direct the appropriate general lighthouse authorities or harbour and conservancy authorities responsible for managing our ports to intervene. Although such authorities already have powers to deal with some wrecks in their existing areas, those powers lack a clear means of cost recovery. The use of the power of direction by the Secretary of State would bring the significant benefit of linking these authorities to the convention’s regime so that they can take full advantage of the cost recovery provisions—an important point.
These steps are to be welcomed. At present, the powers of these authorities are limited to their areas within territorial waters. Just as for the Secretary of State’s representative for salvage intervention, SOSREP, safety-related powers are limited to territorial waters. Only his powers in respect of pollution may be exercised in the larger pollution zone, but the Bill’s powers to locate, mark and remove wrecks and to recover the costs for that work will cover dangers to navigation and pollution all the way out to the edge of the UK zone. Under the Bill the ship owner would also be responsible for any costs associated with locating, marking and removing a wreck. This would include any preventive action that may have to be taken and any mitigation or elimination of any hazard caused by the wreck, including measures to prevent pollution emanating from the wreck. This liability would apply to all ships regardless of size. In addition, no ships of 300 gross tonnage and above would be required to maintain compulsory insurance for this liability, which would be enforced through a wreck removal insurance certification scheme.
The certificates, provided by the relevant authorities of a flag state, would provide evidence that insurance was in place and must be carried on board any ship of 300 gross tonnage and above entering or leaving a port or terminal in the United Kingdom so that they can be checked as part of the port state control procedures. Any ship found to be without the required insurance during these checks could be detained, and liability on the ship owner is strict. Therefore, if an incident has occurred that has led to the UK’s authorities incurring costs under the Bill’s regime, they will be able to recover these costs from the owner or directly from the insurer.
This right of direct action, which already exists in other maritime liability and compensation regimes, is intended to help claims to be settled more quickly. Similarly, the issue of a direction by the Secretary of State to the general lighthouse authorities and harbour and conservancy authorities to locate, mark and remove a wreck will establish the link to the procedures under the convention so that these bodies may benefit from the convention’s cost recovery provisions. All this would represent a marked improvement on the existing system because there is at present no mandatory mechanism allowing these costs to be recovered. Indeed, it greatly increases the probability of the state recovering most, if not all, of its costs where it has had to incur them in locating, marking or removing a wreck.
To conclude, SOSREP, the Maritime and Coastguard Agency and the general lighthouse authorities, along with those responsible for managing our harbours, will continue with their first-class work to prevent accidents. Of that, this novice has no doubt. But we also need to ensure that they are able to respond as effectively as possible to any problems that arise. This Bill will put them in the best possible position to do that and I commend it to the House. I beg to move.
Baroness Stowell of Beeston
My Lords, I am extremely grateful to all noble Lords who have contributed to the debate today. I thank them for their broad support for the Bill.
My noble friend the Minister has responded to most of the questions raised, but there are one or two points to which I should like to respond. The noble Lord, Lord Berkeley, asked about progress on ratification of the convention. So far, three states have ratified it: India, Iran and Nigeria. Furthermore, in December 2008, all EU member states made a firm commitment to express their consent to be bound by the convention by no later than 1 January 2013. The noble Lord also raised questions, to which the Minister referred, around the Secretary of State being able to “direct” the general lighthouse authorities. Perhaps I may reinforce what the Minister and the noble Lord, Lord Greenway, said by explaining that the term “direct” is important because it means that, if the Secretary of State decides to issue a direction, the authorities will then be parties to the convention. If the Secretary of State does not “direct”, they will not enjoy the same benefits of the convention as others.
The noble Lord, Lord Davies of Oldham, suggested that I could look forward to lively and interesting debates in Committee. I like lively and interesting, and I hope by that stage to be able to respond to the suggestion of the noble Lord, Lord Berkeley, that the memorandum of understanding between the Government and the GLA be made possible for other authorities involved.
The noble Lord, Lord Berkeley, asked about the role of the harbour authorities under the terms of the convention. It is worth making it clear that the instruction from the Secretary of State to harbour authorities will apply only in the harbours or waters that they already control. There would be no extension of any responsibility for them beyond that which they already have.
I think that I have covered all of the issues relevant to me. If there is anything further, I am sure that I can follow it up in writing.