Adele Faure and Anthony Moffa are J.D. candidates at Yale Law School, and Sandy Aylesworth and Ben Goldfarb are Master’s candidates at the Yale School of Forestry and Environmental Studies. As part of Yale’s Environmental Protection Clinic, the students are partnering with Archipelagos Institute of Marine Conservation to compel the removal of the Sea Diamond wreck. This month they will file a complaint to the EU demonstrating that failure to remove shipwrecks violates EU Directives that seek to protect human and environmental health.

 

Imagine yourself leaning against the railing of your European cruise liner. You marvel at the Mediterranean scenery, the sparkling blue sea, the dazzling island that awaits you as the ship glides toward the next port. Suddenly, a jolt throws you against the railing—the ship hit a reef and is taking on water. The vessel begins to list and loudspeakers blare instructions in five different languages. You frantically climb to the high side of the ship, dodging throngs of panicked passengers at the lifeboat stations. You manage to get onto a lifeboat and reach land safely, but, tragically, not everyone is so lucky—a number of passengers drown.

Sound familiar? Maybe you are thinking of the Costa Concordia cruise ship, which sank off the coast of Italy in January. However, this scene depicts another shipwreck—one that was just as large, but escaped public attention. The Sea Diamond sank off the Greek island of Santorini in 2007, and is just one of many predecessors to this January’s Costa Concordia disaster. A number of other forsaken passenger ships, such as the ferry MS Express Samina, still lie on the sea floor.

While the human toll is the most visible aspect of these accidents, these wrecks impose another, hidden cost. The hulking remains of sunken ships poison the surrounding ecosystems with chemicals like HCFC, lead, asbestos, toxic metals, and oil, and menace public health, local economies, and endangered marine mammals.

Luckily for the Mediterranean’s coastal population and marine habitats, the Costa Crociere cruise line intends to remove the Costa Concordia wreck. But if public attention and government support do not compel removal, yet another sunken ship will remain on the sea floor, polluting the waters, without any international mechanisms to compel its removal. Take the case of the Sea Diamond. After hitting a near-shore reef, the decision was made to tow the Sea Diamond out to sink in one of the deepest parts of Santorini’s Caldera, in a sensitive ecosystem next to a protected area. The result? The marine insurer paid ship owner Louis Cruises $55 million for the loss—about $20 million more than what Louis Cruises originally paid for the ship. Meanwhile, despite the best efforts of Greek civil society organizations like the Archipelagos Institute of Marine Conservation, the cruise line continues to dodge its liabilities, while the Sea Diamond rots on the sea floor—a ticking ecological time bomb.

Currently, the international laws that could apply to pollution from shipwrecks provide only a patchy solution. Certainly, the maritime conventions that aim to protect the marine environment do not clearly apply to pollution from shipwrecks. The International Maritime Organization has a widely-ratified convention that targets pollution from ships, known as MARPOL. However, MARPOL focuses on routine or operational pollution and oil tankers—sunken passenger ships fall through the seams. If a Mediterranean country, like Greece or Italy, chooses to ignore a polluting shipwreck within its waters, these conventions offer little recourse.

One proposed rejoinder to this regulatory void is the Nairobi International Convention on the Removal of Wrecks, which, if implemented, would ensure that hazardous wrecks are removed promptly. But the Nairobi Convention currently has only four signatories—well short of the ten required for it to come into binding effect. Even if it were ratified, the Nairobi Convention would only mandate the removal of shipwrecks beyond a State’s territorial waters (12 nautical miles out to sea), which is not where most passenger ships sink.

A solution to this problem of abandoned wrecks in the Mediterranean would be to create a specific EU directive—legislation that member states must fold into their domestic law. Admittedly, the EU’s existing “Waste Directive,” requiring a country to ensure proper disposal of waste, and the “Environmental Liability Directive,” instituting a polluter-pays principle, apply in theory to situations like the Sea Diamond and Costa Concordia. However, as the Sea Diamond case illustrates, it is difficult to persuade the European Commission (EC) to take action based on expansive interpretations. A specific directive would help prevent polluters from relying on ambiguities in these directives to avoid the burden of removing a wreck.

The EU would do well to study the United States’ stringent cleanup procedures, codified in the Oil Pollution Act of 1990. When a potentially toxic wreck sinks in US waters, the OPA stipulates that a Federal On-Scene Coordinator immediately begin assessing the threat of pollution and pressing the vessel’s owner to respond. Although the Coordinator manages the effort, the owner is ultimately liable for cleanup costs and even, if it’s deemed necessary, the removal of the ship. In the event that the ship’s owner can’t be located or refuses to pay, the government bankrolls the cleanup itself through the Oil Spill Liability Trust Fund (OSLTF), which finances cleanup projects and restoration.

The Trust Fund came into play during one of the most notorious shipwreck cleanups in recent US history, when Typhoon Val stranded nine fishing vessels on a reef in American Samoa in 1991. When it was determined, several years later, that the wrecks were leaking oil and other toxic substances such as ammonia into the waters of Pago Pago Harbor, the Coast Guard embarked on an ambitious plan to clean up the hazardous substances and remove the ships. Because the ship’s Korean owners could not be found, the OSLTF was used to foot the nearly $15 million bill for removing the threat and restoring the site; by 1999, most of the damage had been ameliorated. While cleanups are not always prompt or successful, the United States’ shipwreck policy typically induces for aggressive, environmentally sound action from the Coast Guard and other federal agencies.

The absence of similar EU laws targeting pollution from shipwrecks poses a moral hazard problem. Short of a more muscular EC interpretation of existing directives or a targeted directive requiring states to dispose of wrecks, sinking a floundering ship in deep water rather than paying for its removal could be, for the unscrupulous, a seductive and lucrative option. As these 80,000-ton steel and fiberglass behemoths sit quietly on the seafloor, oozing out oil and toxic waste, a cruise ship’s owner, also sits—on a cool $55 million.