Search and rescue authorities based on the Mediterranean coast and the shipping companies sailing through it are facing an ongoing humanitarian crisis, brought about by political upheaval, economic migration and the unscrupulous actions of people traffickers. In response to the challenges presented by this phenomenon, the International Chamber of Shipping (“ICS”) has recently released guidance on ensuring the safety and security of seafarers and rescued persons in its booklet “Large Scale Rescue Operations at Sea”, supplementing guidance from the United Nations High Commission for Refugees (“UNHCR”), in co-operation with the IMO and ICS. Whilst this guidance is useful to all crews handling these situations, the prevalence of such incidents highlights the need for office-based staff and their advisers to have an appreciation of the underlying issues in order to best advise those faced with often difficult decisions.
This article focuses on the practical difficulties faced by masters, owners and their P&I insurers who find themselves faced with the rescue of sometimes large numbers of persons in distress whilst trying to minimise disruption to their planned voyages.
Rapid escalation of a perennial problem
The number of migrants attempting the risky Mediterranean crossing, and getting into difficulties, has risen sharply in recent years. In February 2015, over 300 migrants are believed to have drowned off Lampedusa, the southernmost Italian island that was also the scene of the loss of life that prompted Italy to launch the major search and rescue operation Mare Nostrum in October 2013. This has now been partially superseded by Operation Triton, a scaled-down EU initiative with only a third of the budget of Mare Nostrum.
The reduction of search and rescue resources, coinciding with the political crises in Libya and Syria has exacerbated the problem. The collapse of political authority in Libya has made it all too easy for people smugglers to use that country as a conduit for economic migrants and the Syrian refugee situation has created opportunities for criminals operating from Turkey, who have developed a method dubbed the “ghost ship”. For example, in January 2015, two ships, the Blue Sky M and the Ezadeen, were abandoned by their crews, leaving hundreds of people to be rescued by the Italian authorities or drown. It is estimated that people smugglers collect over three million dollars for each of these voyages, a vast profit on ships that might otherwise barely be worth selling for scrap.
The reduction of state resources dedicated to this issue is leading to commercial shipping taking on much of the burden of rescuing those in distress at sea. This situation puts all concerned in danger, as ships’ masters and crews are, with the best will in the world, often ill-equipped for rescue operations, albeit they have a well-established obligation to intervene in such situations.
The relevant treaties
For ship-owners and coastal states, there are three main treaties concerning rescue at sea: The UN Convention of the Law of the Sea 1982 (“UNCLOS”), The International Convention for the Safety of Life at Sea 1974 (“SOLAS”) and The 1979 International Convention on Maritime Search and Rescue (“SAR”).
Masters are often at the forefront of rescue at sea and their obligation to assist is an established part of international law. UNCLOS requires flag states to ensure that masters of ships flying their flags “render assistance” to persons “in danger of being lost” and “proceed with all possible speed” to them if they are informed of the need, insofar as this can be “reasonably expected”. Both duties are subject to the qualification that the master is only obliged to assist if “he can do so without serious danger to the ship, the crew or the passengers”.
SOLAS creates a similar obligation: upon receiving a distress signal, the master of a ship that is “able to provide assistance” must “proceed with all speed” to help those in distress. If the master is unable to help, or considers it unreasonable or unnecessary to do so, he must log the reasons for this and inform search and rescue services of the fact. Importantly, SOLAS provides that owners, charterers and operators are forbidden to interfere with the master’s “professional judgement” in making these decisions.
Coastal states have similar obligations under UNCLOS, SAR and SOLAS. UNCLOS, for example, obliges them to “promote the establishment, operation and maintenance” of search and rescue services. SOLAS contains similar provisions. SAR gives more detail and defines search and rescue regions and rescue co-ordination centres (“RCCs”) – vital to determine which areas are covered by which state’s authorities – and obliges them to help those in distress at sea “regardless of nationality” and in cooperation with neighbouring states. RCCs cannot simply sit back if a commercial ship has provided the first assistance and must ensure that “as soon as reasonably practicable” arrangements are made to disembark rescued persons at “a place of safety”, so that the ship may proceed “with minimum further deviation” from its intended voyage.
Practical challenges facing the master
Despite the established legal framework, a master faces an unenviable task – he must manage and balance his duties towards those in distress with the safety of his ship and crew. At the same time, he will inevitably be aware of the commercial considerations of the underlying voyage: for example, time lost as a result of deviation may well not exceed the deductible for any loss of hire insurance. He may be caught between multiple uncooperative and underfunded RCCs and even face criminal prosecution for breach of his duties.
No matter how many training drills are undertaken, or however thorough a ship-owner’s procedures and systems may be, the logistical difficulties of rescue at sea are considerable. For example, channels of communication must remain open between parties: RCCs, owners, insurers and others will all want to be continuously updated. The master must also consider whether there are any signs of infectious diseases such as Ebola, as a significant proportion of rescued persons are from West Africa. This may magnify the problem of security on board the rescuing ship, as the rescued persons may be emotionally distressed and significantly outnumber the crew. Ideally, emergency provisions will exist on board in anticipation of this type of scenario, but such supplies will only last for so long. The hardest challenge may prove to be securing the swift and safe disembarkation of those rescued. As well as liaising with RCCs, the master must be aware of measures to take where the rescued persons may include asylum-seekers or refugees. Whilst he does not have any capacity or responsibility for assessing a person’s status (and such assessment should not in any event take place at sea), the master should be aware of the general principles concerning refugees and take care not to be complicit in a breach of the 1951 Refugee Convention by sending potential refugees or asylum seekers to a place in which they may be in danger.
The practical difficulties outlined above are not theoretical, but real. We were, for example, asked to advise P&I insurers as to the scope of a master’s legal obligations towards a vessel, seemingly in distress, with over 100 migrants on board. A number of challenges arose, including the reluctance of the migrants to be assisted unless they were to be taken to a particular port where they anticipated favourable asylum treatment. The closest coastal state was reluctant to co-operate with its international law duties. Owners were concerned that, although a second nearby state was cooperating, it might withdraw if the migrants needed to be disembarked in its territory. The situation clearly demonstrated the practical challenges masters and owners can face, despite the existence of a comprehensive international legal framework setting out the duties of both the assisting ship and the RCCs.
The search for a solution
Unless and until significant resources are committed to this issue, the pressure on all involved may increase to an unmanageable degree. Owners must recognise the importance of training masters and crews for rescue scenarios, keeping ships equipped with supplies and having contingency plans to cope with the legal and practical challenges during emergencies, but masters are facing ever more challenging situations that potentially threaten the safety of their existing crew and ship. Likewise, stretched local authorities struggle to cope with a growing problem as traffickers continue to line their own pockets. There have been a number of welcome developments recently. The UNHCR has decided to develop a two-year Global Initiative on Protection at Sea and, in March 2015, set out 12 concrete steps aimed at saving lives and concentrating on three main areas: within the EU; collaboration with countries of transit; and first asylum and collaboration with countries of origin. It appears that the international community recognises the seriousness of the problem but must now take decisive and rapid action, requiring both commitment and funding at levels equivalent to those seen in response to the Somalian piracy problem, to prevent the escalation of this on-going, life-threatening practice.