1. Saving persons in distress upon the sea
It is a sad truth of our time that when a Master finds or is informed of persons in distress at sea, he will give serious consideration to the action that he should take and the risk of endangering his own vessel and crew. The persons sighted may all be in distress but could be refugees, economic migrants, asylum seekers, undocumented migrants or pirates, all of which bring problems for the Master to manage.
The Mediterranean Sea, Andaman Sea and Arafura Sea are on different parts of the Globe, but are all in areas which have people fleeing from war, tyranny, famine and poverty. Those in flight generally have a common purpose; a search for a better life. In their endeavour, they frequently put their lives and those of their families at peril on the sea. Such people have little knowledge of the sea and this can result in tragedy. The UN High Commissioner for Refugees (UNHCR) reported at the end of 2015 that some 300,000 ‘boat people’ made it across the Mediterranean Sea but some 3,760 perished in the attempt. So, what are the requirements of a Master when boat people are sighted at sea and in need of assistance?
Under SOLAS Ch.V Reg. 33, the Master of a ship which is in a position to provide assistance upon receiving a distress call at sea is bound to proceed with all speed to their assistance. His obligation to render assistance is similar to that contained in the 1982 UN Convention on Law of the Sea and the 1979 Search and Rescue Convention. He is not concerned about the individual’s nationality or status of such persons or the circumstances in which they are found. His simple duty is to render humanitarian assistance. If the Master is unable or considers it unreasonable or unnecessary to assist, he is required to enter in the log book the reason for failing to do so.
So, what must a Master satisfy himself of and what must he do?
• Are these people in distress?
• Is his vessel and crew able to provide assistance?
• In all the circumstances, is his vessel able to and does he consider it reasonable to, proceed and provide assistance?
So, what must a Master satisfy himself of and what must he do?
Upon arrival at the distress location, the Master may take the view that the sea conditions are so horrendous that he cannot risk putting his vessel beam onto the weather or alongside the distressed vessel. He can only stand off and assist, possibly by streaming a life raft astern in the hope of saving those from the sea. His primary obligation is the safety of his own vessel and crew and he is only required to do that which is reasonable in all the circumstances.
The sheer number of persons requiring assistance may mean that the vessel cannot accommodate them all. Such humanitarian assistance would entail standing by and calling for other merchant vessels and Government vessels to assist, providing food and medical support as best they can. However, time, weather conditions, location and dangers may result in the vessel having to take on board many of the survivors. This could prove a hard decision for the Master. If he is incapable of taking them all on board, should he sacrifice one of his own lifeboats or life rafts to aid the survival of those that have to be left behind and so reduce his own safety standards?
Conditions on Board:
For those who have been taken on board, there is a new dilemma for the Master, having to allocate his supplies of food and manpower to sheltering, provisioning and caring for the survivors. It could be a logistical nightmare. Providing shelter from the weather, in all its guises, can be a formidable task if his crew of twenty has swelled by a further twenty survivors, but there could be several hundred to take on board. If the Master knows he will be transiting an area where ‘boat people’ may be found, should he as a precautionary measure, have additional stores and equipment on board to deal with such an eventuality?
Of the survivors, what happens next? It may be that they had hoped to make a particular landfall and that being on board a merchant vessel, they would expect to be landed at the nearest port. Imagine their surprise if picked up in the Timor Sea to be told that their next port of call is to be the port they departed from, or that they were bound for Rio-de-Janeiro or Cape Town! Would that result in a violent outburst from those the Master had just saved? If so, how would it be controlled when all of his crew are already fully tasked?
Throughout the time on-board, the Master has to treat the survivors humanely, taking account of his own resources. SOLAS requires the vessels providing assistance to be released from their obligations with minimum (further) deviation from the ship’s intended voyage. In resuming his voyage with the boat people on board, the Master is not required to deviate to the nearest port, but subject to orders, may proceed to the port to which his vessel had been bound, irrespective of where it is. He is only required to land them at a safe port, but getting permission to enter that port may mean arguing with the Local Authorities whose view of the legislation may differ from that of their own Government.
It is the (contracting) State within which the Maritime Rescue Co-ordination Centre (MRCC) controlling the rescue operation is located that is required to facilitate the disembarkation of survivors and deliver them to a place of safety. If that port is out with the jurisdiction of the MRCC that was controlling the rescue, then SOLAS requires the (MRCC) State to be overall responsible for State co-operation, ensuring that the boat people are disembarked as soon as reasonably practicable and taken to a place of safety. Finding out who to go to within a State organisation is never an easy task, even less so if they do not want to get involved.
If the Owners decide that the Master should deviate to another port, who pays for the victuals, lost time and deviation expenses? Not the distressed persons, who probably have little more than the clothes they are wearing and some personal effects. As far back as 1873, the English High Court held that such personal effects could not be arrested and did not form a claim in (life) salvage.
The fuel and crew costs as well as the expense of feeding and providing for those assisted will be paid by the shipowner. His P&I Club and hull underwriters may be likely to be there to assist and compensate. Subject to the terms of cover, deviation/diversion expenses together with the cost of medical treatment and victuals for those rescued, can be claimed. What is clear however, is that except where there is property salved with the survivors, there is no claim for salvage and therefore no claim for life salvage. Article 16 of the 1989 International Convention on Salvage affirms that no remuneration is due from persons whose lives are saved. That provision does not restrict a State from making their own laws which may require saved persons to make recompense, but such a situation would be rare.
Time is a different factor. Deviation and thus lost time is not an expense and so out with the terms of P&I cover. Unless the vessel is under a time charter where the charterer has agreed to share the expense of deviation to save life and/or property, the lost hire or cost of delay will be on the Owners account.
Deviation to a Suitable Port:
It is usually an Owners decision on whether to deviate to a suitable port, en route to their planned next port of call. Upon arrival, the Master having done all that is required of him will be under the common belief that the survivors are landed and the vessel departs with the minimum of delay. Such are the obligations under SOLAS but we all learn from history. The Master of the “PRESTIGE” thought he was heading for a port of refuge when his vessel started breaking up, but was refused entry by France, Spain and Portugal. Would the Authorities order the vessel to another port? If so, would the Master be required to comply with such orders, or just best advised to do so?
What of the survivors? The Master is not required to give any consideration to their status and indeed SOLAS regulations expressly prohibit such distinctions being made. It is only when an attempt is made to land the survivors that the Authorities ashore start labelling them. What the Master thought would be a few hours’ delay could be many days, whilst the Authorities process those on board and decide whether they can be landed. The Master may find that some are refused entry, whilst others may refuse to go ashore.
The UNHCR recorded in their round table paper for discussion in March 2002, that there was a lack of clarity and possible lacunae in international maritime law when determining the steps that follow once a vessel has taken survivors on board, i.e., where should the vessel proceed to? It is not clear as to why this is an issue, since time memorial merchant shipping have assisted everyone in peril on the sea and proceeded thereafter to their next intended port of call, since such would result in the minimum of deviation from the vessel’s voyage. Why should there be a new obligation on a Master to deviate to the nearest place of safety (which could be many hundreds of miles away and in the ‘wrong’ direction) if he is of the opinion that he can safely reach his intended port?
Ten years on, and the UNHCR paper on Refugees and Asylum Seekers in Distress at Sea – How best to respond (Nov. 2011) records that changes in International Conventions have strengthened the framework governing rescue at sea, notably by establishing an obligation for all (signatory) States to co-ordinate and co-operate in rescue at sea operations. The Conventions only raise an obligation, they cannot force a State to do anything and therefore practical and operational challenges remain. They say these are due in part to search and rescue operations triggering the responsibilities of different States and that those responsibilities may conflict with “migration management and security objectives relating to irregular sea arrivals.” Lack of capacity to implement search and rescue obligations or to receive persons rescued at sea upon disembarkation, can complicate matters.
Their dialogue does not make for a clear understanding as to what they mean; Are they saying that only some coastal States are fulfilling their International obligations to permit distressed persons to be landed and the vessel depart without unnecessary delay? The scheduled port of call is frequently agreed upon by Owners because some delay is expected and if the vessel can continue her operations whilst survivors are disembarked, then time lost will be minimised.
The UNHCR paper highlights a core challenge in any particular rescue at sea operation involving asylum-seekers and refugees (who may be unknown to the Master) and that is the timely identification of a place of safety for the swift disembarkation of the distressed persons. They suggest that if a Master faces delay in disembarking those that he has rescued, then he may be less ready to come to the aid of others in the future.
Difficulties in landing distressed persons are not going to change the ingrained tradition of seafarers helping those in peril on the sea. What it will require is a more detailed assessment by the Master and the Owners before agreeing to take persons on board.
Can assistance be given without those in peril abandoning their own vessel? What number can be taken on board? Where are the distressed persons to be landed?
Some local Authorities may consider the disembarking of survivors as a matter for vessel’s Flag State. Therefore, before proceeding on passage to a particular port, the various options should be considered: the nearest safe port within the MRCC area of responsibility; a Flag State port or the preferred port, taking account of the vessel’s commercial interests?
The Local Authorities infrastructure to deal with a mix of persons to be landed, may be inadequate. There is a further complication, refugees and asylum seekers are protected under the 1951 Refugee Convention from being returned to the territory (or any other territory) where their life or freedom would be threatened. This is why returning those persons saved to their port of embarkation may promote unrest and may result in a refusal by those individuals to leave the vessel. The Authorities may decide to hold the persons on board, causing inevitable delay, whilst the administrative work is carried out ashore.
The Authorities ashore will hear the applications of those to be landed and decide whether an asylum seeker, who is seeking international protection from their own country of nationality for fear of persecution, truly is a refugee. A classification on their nationality is crucial to their asylum application.
Economic migrants who could be at the mercy of people smugglers, trying to escape war, civil strife or poverty and in search of a better life, may not qualify as refugees. Their plight may not extend to a risk of persecution as defined by the Refugee Convention. The Authorities may have to resolve criminal issues, if the rescue had to be carried out whilst a (people) smuggling operation was ongoing. Such an event does not prevent those rescued from seeking asylum, it only adds a further complication to the mix, particularly if the people smugglers were on-board and are numbered with the survivors.
Responsibility for stowaways has long been placed at the door of the shipowner and remains with them until resolution of the stowaway’s asylum application. Whilst Masters could deal with one or two stowaways, who would usually remain onboard to the next port and there be landed and ‘handled’ by the Owner’s P&I Club representative, today’s boat people are so numerous that only State intervention can resolve the issues which arrive with each boat.
As a foot note, what if the true intentions of those seeking assistance was to attack the vessel? Of course the Master could legitimately take measures to prevent boarding and proceed away from the scene. It is surprising how vulnerable one can feel on the bridge of a slow moving bulker with a much smaller but faster boat alongside, crewed with armed men, determined to board. But then, the situation is unlikely to be as clean cut - armed men seen approaching in fast boats from their Mother ship. The ‘distressed’ vessel could appear to be a broken down fishing boat many miles from shore, waiting for the arriving ship to slow down. With legitimate concerns, a Master would be within his rights to put the safety of his crew first and proceed away from the area. His only obligation would be to enter a remark in the log book as to his decision. He could report the incident to the IMB Piracy Reporting Centre. It may be that those fishermen were truly in distress, but such is the doubt that has been created with the increase in piracy worldwide that a Master cannot risk getting it wrong. His primary obligation remains the wellbeing of his ship and crew.