On the morning of February 16, 2020, a jogger running near the cliffs at Ballycotton in Co Cork made the first reported sighting of the cargo ship MV Alta since it had been encountered by the Royal Navy, adrift and derelict in the Atlantic the previous autumn.

Almost one year prior to that encounter – in October 2018 – its crew of 10 sailors had been rescued by the US Coast Guard about 1,400 nautical miles off Bermuda, having apparently lost propulsion on a voyage from Greece to Haiti.

Salvage company

By the time of their rescue, the crew of the Alta had been drifting for three weeks and had run out of food. To compound their misfortune, Tropical Storm Leslie was fast approaching. It was reported that the ship’s owners were negotiating with a salvage company and later claims surfaced to the effect that the ship had been hijacked.

MV Alta, shipwrecked off the Ballycotton coast, Cork. Wikimedia Commons

Whether or not that is true, by February 16, 2020, the wreck of the Tanzanian registered, 2295 GRT Alta was on the rocks in Cork, the most credible explanation being that it had been carried by the Gulf Stream along the coast of the US and across the Atlantic towards the Irish coast.

The ship had been built in Norway 44 years earlier when it had initially been named the Tananger and had plied its trade under that country’s ownership and flag until 2000 when it began its slow journey towards retirement, flying the Maltese, the Greek, the Panamanian and finally the Tanzanian flags.

Jurisdiction of the state of its registry

The 'flag' of a ship is important as the foundation of order on the high seas traditionally rests upon the concept of the nationality of the ship and the consequent jurisdiction of the state of its registry whose flag it is entitled to fly.

Article 91 of the UN Convention on the Law of the Sea stipulates that there must be a “genuine link” between the state and the ship, a provision which was intended to check the use of open registries or so-called flags of convenience, which confer nationality as a service to be sold to foreign ship owners.

Commercial ships such as the Alta are subject to an amount of international regulations which the flag state is duty bound to implement.

While several international organisations make some contribution to maritime safety and security, it is the specialised maritime agency of the United Nations, the International Maritime Organisation (IMO), which has had the most substantial effect upon the law of the sea.

Maritime pollution

Its predecessor, the Inter-Governmental Maritime Consultative Organisation, had been principally occupied with safety at sea and efficiency of navigation but following the Torrey Canyon tanker incident in 1967, the prevention of maritime pollution through the regulation of shipping assumed greater importance.

The European Union has also become especially active in the area of maritime safety and pollution. This progressed in the 1970s as island nations, such as the UK and Denmark acceded and incidents such as the sinking of the tanker Amoco Cadiz off the coast of Brittany in 1978 required a reaction.

Initially, the then-EEC was willing to invoke 'soft' law with the council adopting non-binding recommendations. However, over the course of the 1980s and 1990s, following a number of ferry disasters, such as the Herald of Free Enterprise in 1987 and the soft law began to be replaced by 'hard' regulations, directives, and decisions.

The Erika and Prestige tanker incidents in 1999 and 2002 resulted in a three-tier action plan which led to more effective monitoring and control of ships in EU waters, the establishment of a community vessel traffic monitoring and information system and the European Maritime Safety Agency.

Unseaworthy condition

It is therefore dispiriting that against this regulatory background, the MV Alta left a European Union port in what would appear to have been an unseaworthy condition.

Notwithstanding that its reported voyage from Greece to Haiti – almost 5,000 nautical miles – was unusual for a small coastal cargo ship at the end of its life, a well-run cargo ship should not have been incapable of repair at sea by its crew.

A vessel is not seaworthy if at the start of its voyage, it is not in a state to perform its contract voyage in safety. Looking to the case law on carriage of goods by sea contracts, unseaworthiness can apply in such obvious circumstances as a leaky hull (Lyon v. Mells (1804) 5 East 428) or defective propellers (Snia v. Suzuki (1924) 29 Com Cas 284) and may even apply in the non-physical sense if a ship lacks required documentation.

For example, in Ciampa and Ors v. British India SN Co [1915] 2 KB 774 the ship lacked documentation to certify a ‘clean bill of health’ after calling to port in the grip of plague and had to be fumigated.

While we do not know exactly how the MV Alta got here or how it slipped through the regulatory net, we do know that a wrecked ship now needs to be removed from the Irish coast.

Legal frameworks

To do so, states had until recently to rely on patchwork of different legislation and on their own legal frameworks. Despite commercial ships normally carrying a number of insurance policies, including third party protection and indemnity (P&I) insurance, which typically cover wreck removal expenses, the situation led to legal uncertainty and a lack of transparency.

To address this, in April 2015 the IMO’s Nairobi International Convention on the Removal of Wrecks (the Nairobi Convention) came into force.

It introduced set of uniform rules for prompt and efficient removal of wrecks and imposes virtually strict (ie without fault) liability on registered owners of a ship that has become a wreck, subject only to very limited defences and requires ships to maintains compulsory insurance to cover wreck removal.

Art. 9.1.a  provides that when an affected state determines that a wreck constituting a hazard exists, it shall immediately inform the state of the ship's registry and the ship’s registered owner which has responsibility for the removal of the wreck rests. Art. 10.1 provides that the registered owner is liable for the costs incurred locating, marking and removing the wreck as set out in Art. 7-9.

The convention entered into force in 2015 following ratification by sufficient signatory states. Ireland was not one of those states and must therefore rely on the relevant domestic legislation. T

he Merchant Shipping (Salvage and Wreck) Act 1993 gives effect to 1989 Salvage Convention. Section 40 provides that the Minister of Transport, Tourism and Sport has general superintendence throughout the state for all matters relating to every wrecked or stranded vessel.

Section 41 gives the minister power to appoint an official known as a receiver of the wreck to deal with the mess. The 1976 Convention on Limitation of Liability for Maritime Claims was enacted into Irish law by the Merchant Shipping (Liability of Shipowners and Others) Act 1996 and the Sea Pollution (Hazardous Substances) Compensation Act 2005.

Section 11 of the 1996 Act provides that the right to limit liability shall not apply to claims in respect of the raising, removal, destruction or rendering harmless of a ship which is sunk, wrecked, stranded or abandoned.

However, in reality, a ship’s actual owners can be difficult to identify, especially among a web of international companies. Notwithstanding salty tales of pirates in the Caribbean and the Bermuda Triangle, time is running out for the Alta and while it might have been relatively easy to remove the intact ship close to its grounding, it will certainly become more difficult and more expensive and there will be environmental concerns if it is allowed to disintegrate.

A recent report stated that the local authorities had already spent €200,000 removing oil from the vessel and there is nothing to suggest that this bill will not increase in the future.

Author: Ciarán McCarthy is a barrister-at-law specialising in maritime law. He lectures in the National Maritime College of Ireland, and is a visiting lecturer in maritime law at University College Cork and the United Nations Conference in Trade & Development. He is a former ship’s officer who served in the Irish and Merchant Navies and holds a master mariner’s licence and degrees from UCC, CIT and the Kings Inns.