Decreto n.º 28/2017

Decreto n.º 28/2017

de 25 de agosto

A Convenção Internacional de Nairobi sobre a Remoção de Destroços, adiante designada Convenção, negociada no âmbito da Organização Marítima Internacional (OMI) e adotada no Quénia, a 18 de maio de 2007, estabeleceu um quadro jurídico internacional para uma rápida e eficaz remoção de destroços que podem ter o potencial de afetar, de forma adversa, a segurança de vida humana, bens e propriedades no mar, bem como o ambiente marinho.

A Convenção procurou, assim, preencher uma lacuna existente no quadro jurídico internacional, criando o primeiro conjunto uniformizado de regras internacionais, que possibilitam garantir a remoção, tanto eficiente como eficaz, dos destroços localizados além do mar territorial, nela se inclui ainda uma cláusula facultativa, que permite ao «Estado Parte» aplicar certas disposições da Convenção de Nairobi ao seu território, incluindo ao seu mar territorial.

Nela é criada a figura do «Proprietário Registado», enquanto responsável pelos custos de localização, de marcação e de remoção de um destroço, que constitua um risco ou obstáculo para a navegação, que seja razoavelmente espectável que resulte em graves consequências para o ambiente marinho ou danos para a faixa costeira ou interesses relacionados com um ou mais «Estados».

A Convenção não prejudica o direito do armador de limitar a responsabilidade sob qualquer regime nacional ou internacional aplicável, sendo o comummente o que se encontra previsto no Protocolo de 1996 à Convenção sobre o Limite da Responsabilidade para Sinistros Marítimos, de 1976, Protocolo LLMC 1996.

A Convenção veio também esclarecer, a obrigatoriedade do «Proprietário Registado» de um navio, com Arqueação Bruta (AB) igual ou superior a 300, subscrever um seguro ou outra garantia financeira, nomeadamente a garantia de um banco ou de uma instituição financeira semelhante, que cubra os custos da remoção dos destroços e confira aos «Estados Parte» o direito de agirem diretamente contra as seguradoras ou entidades garante.

Atendendo à possibilidade conferida pelo n.º 2 do artigo 3.º da Convenção, Portugal decide estender a aplicação da Convenção aos destroços localizados no seu território, incluindo o mar territorial, observado o n.º 4 do artigo 4.º, sem prejuízo dos direitos e deveres de Portugal em tomar medidas em relação a destroços localizados no seu território, incluindo o mar territorial, que seja localizá-los, marcá-los e removê-los de acordo com a própria Convenção.

Assim:

Nos termos da alínea c) do n.º 1 do artigo 197.º da Constituição, o Governo aprova, para adesão, a Convenção Internacional de Nairobi sobre a Remoção de Destroços, adotada a 18 de maio de 2007, cujo texto, em versão autenticada em inglês e respetiva tradução para a língua portuguesa, se publica em anexo.

Visto e aprovado em Conselho de Ministros de 29 de junho de 2017. - António Luís Santos da Costa - Augusto Ernesto Santos Silva - Ana Paula Mendes Vitorino.

Assinado em 10 de julho de 2017.

Publique-se.

O Presidente da República, Marcelo Rebelo de Sousa.

Referendado em 18 de julho de 2017.

O Primeiro-Ministro, António Luís Santos da Costa.

Nairobi International Convention on the Removal of Wrecks, 2007

The States Parties to the present Convention,

Conscious of the fact that wrecks, if not removed, may pose a hazard to navigation or the marine environment,

Convinced of the need to adopt uniform international rules and procedures to ensure the prompt and effective removal of wrecks and payment of compensation for the costs therein involved,

Noting that many wrecks may be located in States' territory, including the territorial sea,

Recognizing the benefits to be gained through uniformity in legal regimes governing responsibility and liability for removal of hazardous wrecks,

Bearing in mind the importance of the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982, and of the customary international law of the sea, and the consequent need to implement the present Convention in accordance with such provisions,

have agreed as follows:

Article 1

Definitions

For the purposes of this Convention:

1 - «Convention area» means the exclusive economic zone of a State Party, established in accordance with international law or, if a State Party has not established such a zone, an area beyond and adjacent to the territorial sea of that State determined by that State in accordance with international law and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.

2 - «Ship» means a seagoing vessel of any type whatsoever and includes hydrofoil boats, air-cushion vehicles, submersibles, floating craft and floating platforms, except when such platforms are on location engaged in the exploration, exploitation or production of seabed mineral resources.

3 - «Maritime casualty» means a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to it, resulting in material damage or imminent threat of material damage to a ship or its cargo.

4 - «Wreck», following upon a maritime casualty, means:

(a) a sunken or stranded ship; or

(b) any part of a sunken or stranded ship, including any object that is or has been on board such a ship; or

(c) any object that is lost at sea from a ship and that is stranded, sunken or adrift at sea; or

(d) a ship that is about, or may reasonably be expected, to sink or to strand, where effective measures to assist the ship or any property in danger are not already being taken.

5 - «Hazard» means any condition or threat that:

(a) poses a danger or impediment to navigation; or

(b) may reasonably be expected to result in major harmful consequences to the marine environment, or damage to the coastline or related interests of one or more States.

6 - «Related interests» means the interests of a coastal State directly affected or threatened by a wreck, such as:

(a) maritime coastal, port and estuarine activities, including fisheries activities, constituting an essential means of livelihood of the persons concerned;

(b) tourist attractions and other economic interests of the area concerned;

(c) the health of the coastal population and the wellbeing of the area concerned, including conservation of marine living resources and of wildlife; and

(d) offshore and underwater infrastructure.

7 - «Removal» means any form of prevention, mitigation or elimination of the hazard created by a wreck. «Remove», «removed» and «removing» shall be construed accordingly.

8 - «Registered owner» means the person or persons registered as the owner of the ship or, in the absence of registration, the person or persons owning the ship at the time of the maritime casualty. However, in the case of a ship owned by a State and operated by a company which in that State is registered as the operator of the ship, «registered owner» shall mean such company.

9 - «Operator of the ship» means the owner of the ship or any other organization or person such as the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship from the owner of the ship and who, on assuming such responsibility, has agreed to take over all duties and responsibilities established under the International Safety Management Code, as amended.

10 - «Affected State» means the State in whose Convention area the wreck is located.

11 - «State of the ship's registry» means, in relation to a registered ship, the State of registration of the ship and, in relation to an unregistered ship, the State whose flag the ship is entitled to fly.

12 - «Organization» means the International Maritime Organization.

13 - «Secretary-General» means the Secretary-General of the Organization.

Article 2

Objectives and general principles

1 - A State Party may take measures in accordance with this Convention in relation to the removal of a wreck which poses a hazard in the Convention area.

2 - Measures taken by the Affected State in accordance with paragraph 1 shall be proportionate to the hazard.

3 - Such measures shall not go beyond what is reasonably necessary to remove a wreck which poses a hazard and shall cease as soon as the wreck has been removed; they shall not unnecessarily interfere with the rights and interests of other States including the State of the ship's registry, and of any person, physical or corporate, concerned.

4 - The application of this Convention within the Convention area shall not entitle a State Party to claim or exercise sovereignty or sovereign rights over any part of the high seas.

5 - States Parties shall endeavour to co-operate when the effects of a maritime casualty resulting in a wreck involve a State other than the Affected State.

Article 3

Scope of application

1 - Except as otherwise provided in this Convention, this Convention shall apply to wrecks in the Convention area.

2 - A State Party may extend the application of this Convention to wrecks located within its territory, including the territorial sea, subject to article 4, paragraph 4. In that case, it shall notify the Secretary-General accordingly, at the time of expressing its consent to be bound by this Convention or at any time thereafter. When a State Party has made a notification to apply this Convention to wrecks located within its territory, including the territorial sea, this is without prejudice to the rights and obligations of that State to take measures in relation to wrecks located in its territory, including the territorial sea, other than locating, marking and removing them in accordance with this Convention. The provisions of articles 10, 11 and 12 of this Convention shall not apply to any measures so taken other than those referred to in articles 7, 8 and 9 of this Convention.

3 - When a State Party has made a notification under paragraph 2, the "Convention area" of the Affected State shall include the territory, including the territorial sea, of that State Party.

4 - A notification made under paragraph 2 above shall take effect for that State Party, if made before entry into force of this Convention for that State Party, upon entry into force. If notification is made after entry into force of this Convention for that State Party, it shall take effect six months after its receipt by the Secretary-General.

5 - A State Party that has made a notification under paragraph 2 may withdraw it at any time by means of a notification of withdrawal to the Secretary-General. Such notification of withdrawal shall take effect six months after its receipt by the Secretary-General, unless the notification specifies a later date.

Article 4

Exclusions

1 - This Convention shall not apply to measures taken under the International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969, as amended, or the Protocol relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, 1973, as amended.

2 - This Convention shall not apply to any warship or other ship owned or operated by a State and used, for the time being, only on Government non-commercial service, unless that State decides otherwise.

3 - Where a State Party decides to apply this Convention to its warships or other ships as described in paragraph 2, it shall notify the Secretary-General, thereof, specifying the terms and conditions of such application.

4 - (a) When a State Party has made a notification under article 3, paragraph 2, the following provisions of this Convention shall not apply in its territory, including the territorial sea:

(i) Article 2, paragraph 4;

(ii) Article 9, paragraphs 1, 5, 7, 8, 9 and 10; and

(iii) Article 15.

(b) Article 9, paragraph 4, insofar as it applies to the territory, including the territorial sea of a State Party, shall read:

Subject to the national law of the Affected State, the registered owner may contract with any salvor or other person to remove the wreck determined to constitute a hazard on behalf of the owner. Before such removal commences, the Affected State may lay down conditions for such removal only to the extent necessary to ensure that the removal proceeds in a manner that is consistent with considerations of safety and protection of the marine environment.

Article 5

Reporting wrecks

1 - A State Party shall require the master and the operator of a ship flying its flag to report to the Affected State without delay when that ship has been involved in a maritime casualty resulting in a wreck. To the extent that the reporting obligation under this article has been fulfilled either by the master or the operator of the ship, the other shall not be obliged to report.

2 - Such reports shall provide the name and the principal place of business of the registered owner and all the relevant information necessary for the Affected State to determine whether the wreck poses a hazard in accordance with article 6, including:

(a) the precise location of the wreck;

(b) the type, size and construction of the wreck;

(c) the nature of the damage to, and the condition of, the wreck;

(d) the nature and quantity of the cargo, in particular any hazardous and noxious substances; and

(e) the amount and types of oil, including bunker oil and lubricating oil, on board.

Article 6

Determination of hazard

When determining whether a wreck poses a hazard, the following criteria should be taken into account by the Affected State:

(a) the type, size and construction of the wreck;

(b) depth of the water in the area;

(c) tidal range and currents in the area;

(d) particularly sensitive sea areas identified and, as appropriate, designated in accordance with guidelines adopted by the Organization, or a clearly defined area of the exclusive economic zone where special mandatory measures have been adopted pursuant to article 211, paragraph 6, of the United Nations Convention on the Law of the Sea, 1982;

(e) proximity of shipping routes or established traffic lanes;

(f) traffic density and frequency;

(g) type of traffic;

(h) nature and quantity of the wreck's cargo, the amount and types of oil (such as bunker oil and lubricating oil) on board the wreck and, in particular, the damage likely to result should the cargo or oil be released into the marine environment;

(i) vulnerability of port facilities;

(j) prevailing meteorological and hydrographical conditions;

(k) submarine topography of the area;

(l) height of the wreck above or below the surface of the water at lowest astronomical tide;

(m) acoustic and magnetic profiles of the wreck;

(n) proximity of offshore installations, pipelines, telecommunications cables and similar structures; and

(o) any other circumstances that might necessitate the removal of the wreck.

Article 7

Locating wrecks

1 - Upon becoming aware of a wreck, the Affected State shall use all practicable means, including the good offices of States and organizations, to warn mariners and the States concerned of the nature and location of the wreck as a matter of urgency.

2 - If the Affected State has reason to believe that a wreck poses a hazard, it shall ensure that all practicable steps are taken to establish the precise location of the wreck.

Article 8

Marking of wrecks

1 - If the Affected State determines that a wreck constitutes a hazard, that State shall ensure that all reasonable steps are taken to mark the wreck.

2 - In marking the wreck, all practicable steps shall be taken to ensure that the markings conform to the internationally accepted system of buoyage in use in the area where the wreck is located.

3 - The Affected State shall promulgate the particulars of the marking of the wreck by use of all appropriate means, including the appropriate nautical publications.

Article 9

Measures to facilitate the removal of wrecks

1 - If the Affected State determines that a wreck constitutes a hazard, that State shall immediately:

(a) inform the State of the ship's registry and the registered owner; and

(b) proceed to consult the State of the ship's registry and other States affected by the wreck regarding measures to be taken in relation to the wreck.

2 - The registered owner shall remove a wreck determined to constitute a hazard.

3 - When a wreck has been determined to constitute a hazard, the registered owner, or other interested party, shall provide the competent authority of the Affected State with evidence of insurance or other financial security as required by article 12.

4 - The registered owner may contract with any salvor or other person to remove the wreck determined to constitute a hazard on behalf of the owner. Before such removal commences, the Affected State may lay down conditions for such removal only to the extent necessary to ensure that the removal proceeds in a manner that is consistent with considerations of safety and protection of the marine environment.

5 - When the removal referred to in paragraphs 2 and 4 has commenced, the Affected State may intervene in the removal only to the extent necessary to ensure that the removal proceeds effectively in a manner that is consistent with considerations of safety and protection of the marine environment.

6 - The Affected State shall:

(a) set a reasonable deadline within which the registered owner must remove the wreck, taking into account the nature of the hazard determined in accordance with article 6;

(b) inform the registered owner in writing of the deadline it has set and specify that, if the registered owner does not remove the wreck within that deadline, it may remove the wreck at the registered owner's expense; and

(c) inform the registered owner in writing that it intends to intervene immediately in circumstances where the hazard becomes particularly severe.

7 - If the registered owner does not remove the wreck within the deadline set in accordance with paragraph 6(a), or the registered owner cannot be contacted, the Affected State may remove the wreck by the most practical and expeditious means available, consistent with considerations of safety and protection of the marine environment.

8 - In circumstances where immediate action is required and the Affected State has informed the State of the ship's registry and the registered owner accordingly, it may remove the wreck by the most practical and expeditious means available, consistent with considerations of safety and protection of the marine environment.

9 - States Parties shall take appropriate measures under their national law to ensure that their registered owners comply with paragraphs 2 and 3.

10 - States Parties give their consent to the Affected State to act under paragraphs 4 to 8, where required.