Study On The Legal Issues Of The Wreck Removal Charge

According to the data of the International Maritime Organization (IMO) of the UnitedNations, because of lacking of fund, there are about1300sunken ships and wreck didn’t geteffective salvage in the world. Every year, more than230ships are sunken for all kinds ofaccidents in our country. When these debris harm to navigation safety, environmentalprotection and other relevant interests, it is urgent to clear up the wreckage rapidly, even if thehazards are potentially. It is also urgent to solve the disputes promptly. Regarding to theproblems of wreck removal, there is no specific provision in the relevant internationalconventions, neither nor some domestic legislations, especially concerning the salvage andremoval charge. The legal problem about wreck removal charge has become the focus of thedivergence of the legislation, including the definition of the cost, the bearing subject of thecost, the legal nature of the cost, the limitation of the liability, the realization of the cost, andthe safeguard mechanism of the mandatory removal charge. These problems directly affect therealization of the removal charge, they play a decisive role in the removal of the wreck.Based on the domestic and foreign laws and relevant international conventions related towreck salvage and removal, combined with the latest research achievements at home andabroad, this article uses the basic theory of civil and the administrative law, and the method ofhistorical analysis, comparative analysis and value analysis and other research methods, thenanalyses the legal issues on the wreckage salvage and the costs systematically andcomprehensively.This thesis is divided into five parts, disregarding the introduction and epilogue. There areabout forty thousand words.PartⅠ has an overview on the charge of the wreck removal, firstly, analyses the relatedconcepts of salvage and removal of wreck based on the international conventions anddomestic laws, then defines the wreck removal charge, including commercial removal chargeand mandatory removal charge. The commercial removal charge depends on the the type ofsalvage contract, the mandatory removal charge is much more complicated. Then introducesthe bearing subject of the cost. In the “2007Nairobi Wreck Removal Convention”, allregistered person should be responsible for the cost of location, marking and removal, but inour China, these legal issues are very complicated, especially the issue of the bearing subject. In our domestic laws, the bearing subjects of responsibility are different in various regulations.In a word, the bearing subjects ruled in regulations of our country are not fully consistent. Inpractice, maritime administrative authorities don’t know which subject should be forced todeal with the wreck, and it is also difficult to find the bearing subject.PartⅡ analyses the legal nature of the wreck removal charge detailedly.In the case ofcommercial removal,because the contract is based on the agreement concluded by theremoval company and the bearing subjects, so the bearing subjects should pay the charge.Paying the charge complies with his duty. Therefore, the commercial removal charge has thenature of civil liability.There is a big controversy about the legal nature of the mandatoryremoval charge, some scholars think that the charge have the nature of administration, somethink that the charge have the nature of civil liability, some other believe that it has the dualfunction, and some scholars discuss it in stages. Based on the analysis of the differentopinions, and combined with the maritime judicial practice, this paper holds the view that themandatory removal charge have the legal nature of civil liability. Firstly, take reference to thelegal nature of the mandatory sewage treatment charge, secondly, take considerations of thesafeguard mechanism of the charge, thirdly, take account of the range of cases which themaritime court should accept and hear.Part Ⅲdiscusses the limitation of liability of the commercial removal charge and themandatory removal charge respectively. Then come to a conclusion that neither commercialremoval charge nor mandatory removal charge can limit the liability. They both belong tonon-restrictive debt.Part Ⅳanalysis the realization of the wreck removal charge. In the condition ofcommercial removal, the mode and the time of payment are specified in the contract, thebearing subject usually pays the charge,if there is a breach of contract, the removal companycan sue to the court or apply for arbitration to get the charge, and the removal company canalso keep the work product completed according to the provisions of “contract law” in orderto get its removal charge. In the condition of mandatory removal, when the wreck are sold inauction, the removal company can get the charge, in another way, they can pursue of recoveryfrom the third party who has a fault in the wreck accident, also, they can get the removalcharge through the safeguard mechanism.Part Ⅴanalyses the safeguard mechanism of mandatory removal charge at full length. Atpresent there are two kinds of solutions, the compulsory liability insurance system and the special fund system. Compulsory liability insurance is one of the security liability insurancein Marine insurance, and it is also the important mechanism specified in “2007Nairobi WreckRemoval Convention”. This part introduces the content of the compulsory liability insurancesystem firstly, including the subject of the system, the object of insurance and the thirdperson, then analyses the advantages and disadvantages of the system. In practice, theinsurers usually associated in mutual steamship assurance association, which plays aimportant role in the system. The association do not support the system, so it is not perfect. Itis hard to work effectively, in addition, this system compensate the insured for wreck removalcharge after salvage, if it putted into effect, it will increase the burden of the maritimeauthority. These shortcomings makes the system undesirable. Regarding to the special fundsystem, some scholars have comprehensive framework of the system, but at present, the studyof the system is still in the preliminary stage. There is a lot of questions about theestablishment, collection, application procedures of the fund. Before putted into effect, thespecial fund system need be accepted by international community. It has maneuverability, andit does not increase the burden of the maritime authority,but this system also has itsdisadvantage, it can’t be perfect. It also requires further study.