The sixth in a series of papers providing an overview of topical shipping issues, this briefing reviews current international regulations and outlines a number of policy options designed to reduce the risks posed to the safety of life at sea.
Recent coverage of the migrant crisis in the Mediterranean has served to highlight the severe risks facing individuals attempting to make crossings between North Africa and Southern Europe on board overcrowded and unseaworthy vessels. The current situation is of increasing relevance to the shipping industry, as commercial vessels and their crews continue to be involved in operations to disembark persons from migrant boats and assist in their transportation to a place of safety. Engagement in these types of operations presents safety, security, commercial and operational risks to ship owners and operators.
Ships’ crews and Coastal States have a number of obligations placed on them under international treaties and conventions, but many requirements are open to interpretation. This briefing reviews current international regulations and outlines a number of policy options designed to reduce the risks posed to the safety of life at sea. While the problem is international, the policy options focus on the Mediterranean, where the number of migrants attempting to make sea crossings has increased rapidly since early April 2015 and immediate action is required.
In the past two years, more than 385,000 refugees and migrants have succeeded in reaching the EU via the Central and Eastern Mediterranean migration routes, according to FRONTEX figures. Sadly, the International Organisation for Migration (IOM) reports that more than 3,000 people attempting the crossing died at sea in 2014 and at least 910 have died in 2015 (as of 17 April). Commercial vessels often find themselves having to assist in search and rescue operations where migrant boats are in distress and recent developments have caused increased concern within the shipping industry.
In the majority of cases, refugees put to sea in overcrowded rigid inflatable boats or ageing fishing vessels stand little realistic prospect of reaching Europe. It is clearly the business model of people smugglers that the boats should be spotted by passing merchant ships, evidently in distress, and embarked aboard these ships. Once the refugees are rescued, the boats are often returned to their original departure point to pick up more would-be migrants.
The Ezadeen and Blue Sky M incidents at the turn of the year highlighted an apparent new tactic being used by people smugglers of placing refugees on merchant ships (usually in the cargo holds), then setting the vessel on autopilot before abandoning and allowing the ship to set out at full speed across the sea. This new approach, whereby the vessel essentially becomes a ghost ship or unguided missile, significantly increases the risks to those remaining on board, other vessels in the vicinity and any vessel engaged in rescue operations. However, these appear to have been isolated incidents
Developments during 2015 have demonstrated additional threats facing rescue vessels and crews. On 15 February, Italian Coastguard personnel rescuing around 600 migrants 50 miles north of Libya were threatened by four gunmen demanding that one of the boats cleared of migrants be returned to them. There have also been suggestions that Islamic State cells could use this means to make crossings into Europe, or gain access to commercial and rescue vessels.
Since mid-April, the number of attempted crossings from Libya has increased dramatically. This has led to a number of capsizes, resulting in significant loss of life, and the IOM estimates that the number of deaths in 2015 is 30 time higher than at the same stage in 2014. Responsibility for assistance in rescue operations is falling heavily upon commercial ships on passage through the Mediterranean, with reports of vessels taking over 420 persons on board from a single migrant boat. These commercial ships are rarely equipped with sufficient accommodation, food, water and medical supplies to carry the numbers of persons that they encounter and can only be reasonably expected to do so for short periods of time.
Once those who have been embarked are no longer in danger and the ship that has recovered them has reached a safe port, the responsibility of the ship’s Master and crew should be at an end and they should be able to disembark these persons into the custody of shore side authorities. However, attempts to do this are not always straightforward and there have been cases in which migrants have refused to disembark in Malta and insisted that they be taken to Italy. While more than 140,000 migrants have reached Italy since November 2013, UNHCR and Eurostat figures suggest that only a small percentage remains in the country to claim asylum, with the vast majority moving on towards northern EU countries.
The Italian Navy’s “Mare Nostrum” search and rescue operation, which was set up following a rapid increase in the number of migrants attempting to cross the Mediterranean, ended in November 2014, a move likely to increase the involvement of commercial shipping in rescue operations. It has now been replaced by the FRONTEX co-ordinated Joint Operation “Triton”, which is heavily dependent upon contributions from Member States.
Given the risks facing the migrants and rescuers, not to mention the ongoing impacts on EU immigration levels, Member States demonstrated an increased willingness to strengthen the search and presence at sea, tackle people smuggling operations directly and prevent illegal immigration flows through the agreement outlined in the European Council’s statement of 22 April. The Council’s agreed actions, plus the pledges of Members States to commit increased financial and hardware resources to FRONTEX, are beginning to provide the shipping industry with assurances that it will not be left to bear the brunt of the crisis.
The primary obligations of Shipmasters and IMO State Parties when faced with persons in distress at sea are set out under the United Nations Convention on the Law of the Sea (UNCLOS), the International Convention for the Safety of Life at Sea (SOLAS) and the International Conventions on Search and Rescue (SAR) and Salvage. These are summarised as follows:
Under Article 98(1) Masters are required to render assistance to any person found at sea in danger of being lost and must proceed at speed to the rescue of persons in distress. In addition, Article 98(2) imposes an obligation on Coastal States to promote the establishment, operation and maintenance of search and rescue services and to co-operate with neighbouring States where required.
Regulation V/33.1 obliges the Master of a ship which is in a position to be able to provide assistance to proceed with all speed to assist persons in distress at sea and, if possible, inform the relevant search and rescue service that the ship is doing so. State Parties are required by Regulation V/7 to ensure that necessary arrangements are made for distress communication and co-ordination in their area of responsibility and for the rescue of persons in distress at sea around their coast. Again, the regulation requires Coastal States to establish and operate search and rescue facilities.
Chapter 2.1.10 obliges State Parties to provide assistance to persons in distress at sea, regardless of nationality, status or circumstances. Chapter 1.3.2 requires States to provide for initial medical or other needs and deliver persons to a place of safety.
Article 10 places a duty on every Master to render assistance to any person in danger of being lost at sea, so far as he can do so without serious danger to his vessel and persons thereon.
In addition, rescue operations must take international refugee law, such as the 1951 Convention Relating to the Status of Refugees, into account. The Refugee Convention provides a definition of refugees and prohibits their expulsion or return to a territory where their life or freedom may be at risk on account of race, religion, nationality or membership of a particular social group or political opinion. However, it should be noted that the Convention does not place any obligations on ships or their Masters and crews. In addition it is not the Master’s responsibility to determine the status of rescued persons or hear any application for asylum. A refugee can only submit a claim for asylum to an official of a Government, not to the Master of a ship.
2004 amendments to SOLAS provided additional information on the Master’s discretion in taking and executing decisions necessary for the safety of life at sea and protection of the marine environment (Regulation V/34.1). However, any decision not to assist in a rescue operation (or, conversely, to assist where safety risks could be presented to the vessel and its crew) could still be open to legal challenges.
Some aspects of the international obligations summarised above create a degree of uncertainty for Masters and State Parties. While documents such as the IMO Resolution MSC.167(78) Guidelines on the Treatment of Persons Rescued at Sea and the IMO/UNHCR/ICS “Rescue at Sea” guide provide additional information, there are a number of areas in which uncertainties and challenges remain for the shipping industry:
- Ship owners face difficulties in complying with some international guidance. For example, adhering to a checklist approach to compliance may be impossible when a cargo ship crew is faced with the prospect of embarking hundreds of migrants.
- The unknown status of any persons rescued presents significant security challenges to commercial vessel crews. Smuggling operations are criminal activities and those responsible may well be on board.
- A disconnect exists between the obligations of Masters and Coastal State SAR services. Commercial vessels are often first to the scene of an incident and, while local Rescue Co-ordination Centres (RCC) are informed of any rescue attempt and SAR services should proceed to assist, there is a grey area in terms of the handover of responsibility. The SAR Convention clearly places responsibilities on State Parties to deliver rescued persons to a place of safety. However, Resolution MSC.167(78) confuses matters somewhat by requiring Masters to ensure that survivors are not disembarked in a place where their safety would be further jeopardised.
- There is no available guidance on the length of time acceptable for commercial vessels to stand by when assessing a distress situation. This links to the SOLAS amendment on the Masters’ discretion and his or her judgement on whether rescue operations can be undertaken without causing further risk to the safety of life at sea or the marine environment.
- Particular concerns have been raised by the cruise industry as a result of the potential impacts on passengers during any rescue operation (direct safety impacts, loss of future custom, etc.). The industry still requires clarification on the level to which passenger safety should be considered when assessing the viability of a rescue.
- The level of guidance from Flag varies from State to State. The Marshall Islands, for example, has been providing owners with advice on the appropriate course of action to take when assessing a potential rescue, but other Flag States have not. Legal interpretations of international obligations, as well as practical guidance, would be extremely useful to owners.
- Where difficulties have been faced in disembarking persons from commercial vessels engaged in a rescue, assurances that State security personnel will be on hand to assist could be beneficial. However, the potential for security personnel to create a hostile situation, posing increased risks to ships’ crews, needs to be considered carefully.
Despite these concerns, ship owners have made it clear that they will always seek to take the right course of action from both a legal and moral standpoint. What owners ultimately require are assurances that Masters’ calls on the safety of rescue operations will be accepted and that State Parties are taking the required steps to provide sufficient SAR resources and implementing measures to reduce the number of attempted crossings.
The industry’s focus is squarely on the safety, security, commercial and operational risks facing vessels and crews operating in the vicinity of the key migration routes and preventing the loss of life at sea. The uncertainties arising from international treaty and convention obligations need to be addressed in order to provide ship owners and crews with clarity on their expected response to an incident.
The following actions by EU Member States, many of which are now being taken, will assist in reducing the burden placed on commercial vessels:
Increase resource provision for search and rescue operations and surveillance in the Mediterranean and support the search and rescue commitments of the European Council.
- Take action to tackle people smuggling operations directly as their activities are a significant threat to the safety of life at sea.
iii. Continue to raise the issue at the IMO, with a focus on increased guidance for ship owners, Masters and Coastal State SAR services, bearing in mind the recent agreement by the IMO, ILO, UNHCR and OHCHR to establish mechanisms to support the shipping industry. Stronger enforcement of the SAR Convention, in order to relieve some of the pressure placed on commercial vessels, should be a key target.
- Develop Flag State guidance for ship owners and Masters, outlining legal interpretations of the obligations set out under international conventions and treaties.
Improved operational guidance and legal advice at both IMO and Flag State level will help to provide the industry with greater certainty over its expected role when faced with a migrant vessel in distress. However, the more pressing need is for Member States to commit resources to SAR and surveillance in the Mediterranean and agree on an immediate course of action in dealing directly with people smuggling operations. Only through these actions can further needless loss of life at sea be prevented.