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Refugees in the Mediterranean

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Refugees in the Mediterranean

Studio Legale Mordiglia has kindly provided us with the following information.

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On November 1, 2014, Italy officially put an end to sea rescue mission “Mare Nostrum” launched almost a year ago, a couple of weeks after the fatal drowning of more than 360 African immigrants off the Island of Lampedusa on October 3, 2013. During its operation over the past year, the Italian naval assets were engaged in 421 operations and rescued up to 150.000 migrants under all weather conditions; 5 mother ships were seized and 330 alleged human smugglers were brought to justice. These results were achieved with the aid of 900 soldiers, engaged every single day, 32 naval units and 2 submarines, working in shifts for over 45,000 hours.

The rescue mission, which closed down because it was an emergency plan according to the Italian Government, was replaced by a smaller operation, named “Triton”, overseen by the European Union’s Agency for External Border Security (Frontex).

The transition from “Mare nostrum” to “Triton” constitutes an important change with major impact on a social, economic and political level within the EU. What is remarkable is the fact that it was not welcomed by all EU Member States; the UK, for example, refused to be a part of “Triton”.

At the same time, the aforementioned change is of utmost importance for the Club Members passing through the Mediterranean Sea, whose obligation to assist people in distress at sea remains intact and therefore they should stay alert and be constantly informed about their duties, once they find themselves in a similar situation.

“Triton” Operation

The “Triton” operation, which emanated from the strong requests of the Italian authorities, started its activities on November 1, 2014 in the geographical area extending over the Central Mediterranean, in support of the Italian efforts. “Triton” is a limited joint EU “border protection” operation, which will offer  support to Italian humanitarian efforts and will solely patrol within 30 miles of the Italian coast. The necessary assets and the organisation of the operation will be directly coordinated by Frontex and Italy, whilst the Italian Navy will maintain a reduced presence in the Mediterranean throughout a two-month transition period.

To date, 21 State Members have shown willingness to participate with human and technical resources. The technical equipment provided consists of 2 fixed wing surveillance aircrafts, 1 Helicopter, 4 open shore vessels, 1 coastal Patrol Vessel and 3 coastal patrol boats. As for the human resources, the operation will comprise 65 men per month.

The monthly budget will amount to €2.9 million, less than a third of that of ”Mare Nostrum”, and the funds will derive from the Internal Security Fund (ISF) and from the Frontex budget. Additionally, Frontex will receive an extra bonus of €20m from the EU and will superintend the opening of an International Coordination Centre in Pratica di Mare in Italy. Triton will be operating under respect of international and EU obligations, such as the respect of fundamental rights and the principle of non-refoulement. 

Legal Framework

A number of International Conventions, among which 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 Convention on Maritime Search and Rescue (SAR), lay down a comprehensive regime of law and order in the world's seas and oceans creating rules governing the obligation to provide assistance in distress at sea situations.

Vessel’s obligation to save life at sea

As regards a vessel’s obligation to save life at sea, shipmasters are obliged to provide assistance regardless of the nationality or status of such persons or the circumstances in which they are found. This is a rule of fundamental importance, the respect of which guarantees the integrity of the search and rescue planning system.

More specifically, Art. 98(1) of UNCLOS (1982) provides that “Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him” whereas under Regulation 33.1 (Chapter V) of SOLAS (1974)  it is provided that “The master of a ship at sea which is in a position to be able to provide assistance on receiving a signal from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service that the ship is doing so.” Plus, Art. 10 of the International Convention on Salvage (1989) provides that “1. Every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea.”

Coastal State’s obligation to save life at sea

Furthermore, there are several International Instruments, to which Italy is party, that regulate the ratifying parties’ duty to save life at sea. In particular Art. 98(2) of UNCLOS (1982) imposes upon each contracting coastal state the obligation to “promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose” whereas SOLAS (1974) requires from all Contracting  Governments “to ensure that the 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 its coasts. These arrangements shall include the establishment, operation and maintenance of such search and rescue facilities as are deemed practicable and necessary, having regard to the density of the seagoing traffic and the navigational dangers and shall, so far as possible, provide adequate means of locating and rescuing such persons.” (Chapter V, Regulation 7).

The International Convention on Maritime Search and Rescue (SAR) imposes upon the Contracting States the obligation to provide for the stowaways’ “initial medical or other needs, and deliver them to a place of safety” (part 1.3.2), to “ensure that assistance be provided to any person in distress at sea. They shall do so regardless of the nationality or status of such a person or the circumstances in which that person is found” (part 2.1.10) and “to make the necessary arrangements in co-operation with other RCCs to identify the most appropriate place(s) for disembarking persons found in distress at sea.” (Annex, Chapter 3.1.2).

The Convention on the High Seas (1958) provides that “every State shall require the master of a ship sailing under its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers, (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress if informed of their need of assistance, in so far as such action may reasonably be expected of him” (Art. 12.1). In addition, Art. 10 of the International Convention on Salvage (1989) provides that “2. The States Parties shall adopt the measures necessary to enforce the duty set out in paragraph 1. 3. The owner of the vessel shall incur no liability for a breach of the duty of the master under paragraph 1.”

Lastly, the Convention on Facilitation of International Maritime Traffic (FAL 1965) imposes upon the Contracting Governments to “require that shipmasters operating ships entitled to fly their flag, take appropriate measures to ensure the security, general health, welfare and safety of the stowaway while he/she is on board, including providing him/her with adequate provisioning, accommodation, proper medical attention and sanitary facilities” (Section 4.4.2)

IMO Guidelines

Additionally, there are several IMO Guidelines, which provide guidance to States in framing national regulations and in operationalising the States’ obligations relating to maritime safety.

Under IMO Resolution MSC. 167(78), “the responsibility to provide a place of safety, or to ensure that a place of safety is provided, falls on the Government responsible for the SAR region in which the survivors were recovered” (§2.5), “when ships assist persons in distress at sea, co-ordination will be needed among all concerned to ensure that all of the following priorities are met in a manner that takes due account of border control, sovereignty and security concerns consistent with international law:

Lifesaving All persons in distress at sea should be assisted without delay. Preservation of the integrity and effectiveness of SAR services Prompt assistance provided by ships at sea is an essential element of global SAR services; therefore it must remain a top priority for shipmasters, shipping companies and flag States. 66 Relieving masters of obligations after assisting persons Flag and coastal States should have effective arrangements in place for timely assistance to shipmasters in relieving them of persons recovered by ships at sea” (§3.1), “a ship should not be subject to undue delay, financial burden or other related difficulties after assisting persons at sea; therefore coastal States should relieve the ship as soon as practicable” (§6.3) and “an assisting ship should not be considered a place of safety based solely on the fact that the survivors are no longer in immediate danger once aboard the ship. An assisting ship may not have appropriate facilities and equipment to sustain additional persons on board without endangering its own safety or to properly care for the survivors. Even if the ship is capable of safely accommodating the survivors and may serve as a temporary place of safety, it should be relieved of this responsibility as soon as alternative arrangements can be made.” (§6.13).

Under IMO Circular MSC/Circ.896/Rev.1 “States should co-operate to the fullest extent possible to prevent and suppress unsafe practices associated with the trafficking or transport of migrants by sea, in conformity with the international law of the sea and all generally accepted relevant international instruments. It is consistent with international law for a flag State to authorize a vessel flying its flag to be.” (Annex §8)

Under IMO Resolution MSC.312(88) “Public authorities, port authorities, ship owners and masters, should co-operate to the fullest extent possible in order to resolve stowaway cases expeditiously and secure that an early return or repatriation of the stowaway will take place. All appropriate measures should be taken in order to avoid situations where stowaways must stay on board ships indefinitely.” (Annex §3.5)

Under IMO, FAL.3/Circ.194,  “The coastal States should ensure that the search and rescue (SAR) service or other competent national authority coordinates its efforts with all other entities responsible for matters relating to the disembarkation of persons rescued at sea” (§2.1) and “All parties involved should cooperate in order to ensure that disembarkation of the persons rescued is carried out swiftly, taking into account the master’s preferred arrangements for disembarkation and the immediate basic needs of the rescued persons. The Government responsible for the SAR area where the persons were rescued should exercise primary responsibility for ensuring such cooperation occurs. If disembarkation from the rescuing ship cannot be arranged swiftly elsewhere, the Government responsible for the SAR area should accept the disembarkation of the persons rescued in accordance with immigration laws and regulations of each Member State into a place of safety under its control in which the persons rescued can have timely access to post rescue support” (§2.3)

International Refugee Law

At the same time close attention should be paid to the rights of refugees in host countries and particularly to the provisions of the Convention Relating to the Status of Refugees (1951), under Art. 33(1) of which “No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Italian Law

Under Italian Law, Art. 70 of the Italian Code of Navigation provides that regarding the employment of vessels for assistance, “the Maritime Authority or, in default, the communal Authority, can order that the vessels in the port or in its neighbourhood be put at their disposal with the relative crews.”  Moreover, Art. 1158 of the Italian Code of Navigation provides that “The Master of a national or foreign ship, craft or airplane, who fails to assist or who does not attempt a  salvage in those cases in which he is obliged to do so in accordance with the present code, is punishable with imprisonment for up to two years.”

Guidance for ships and masters

The advent of the “Triton” operation will not bring any changes to the main duty of member vessels to provide assistance to persons in distress at sea and their obligations will have to be fulfilled exactly as under “Mare Nostrum”.

If a vessel encounters individuals in distress, the Shipmaster should adopt the following measures.  

Firstly, he should provide the Rescue Coordination Centre (RCC) with details about the vessel  undertaking the rescue operation and, specifically:

  • the vessel’s name, flag, port of registry and IMO number
  • the vessel’s full contact details, its owner and its manager at the next port
  • the vessel’s exact position, its next scheduled port of destination, the vessel’s security conditions or her technical specifications, taking into consideration the additional number of passengers

Secondly, he should provide as much information as possible regarding the number of persons found and particularly:

  • their name, age (if possible) and gender
  • their health condition, physical integrity and special medical needs
  • where these persons have been located and how the vessel found them
  • the exact co-ordinates of the persons found

Thirdly, he should communicate what actions he has already taken or is eager to take, as well as how and where he prefers to arrange for the rescued persons to disembark.

Fourthly, he should provide information about any assistance needed by the vessel that has undertaken the rescue operation, the vessel’s primary destination and any other information relating to the rescue operation (weather conditions, sensitivity of cargo, etc.)

Should the rescued persons ask for political asylum, the shipmaster should inform the nearest Rescue Coordination Centre (RCC) and the UN Refugee Agency accordingly, whereas he should not ask for any disembarkation license at their country of origin or the country that they escaped from and he should not reveal any personal data of those who applied for asylum to the above countries or to any other third party that might transfer the relevant information to these authorities.

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Refugees at Sea - what is covered and what is not? 

A considerable number of people are leaving their home countries for economic and/or political reasons. Many of these refugees end up in distress at sea aboard unseaworthy and sometimes even un-crewed vessels, on their desperate journey in search of a better life.

There is a longstanding tradition that vessels assist when another vessel is in distress, however, putting tradition aside, there is also, based on several International Conventions, a legal obligation for the shipowner to provide assistance in distress situations at sea. 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 Convention on Maritime Search and Rescue (SAR), among other conventions, create a framework concerning the obligations of a vessel to provide assistance and disembark those rescued to a place of safety. 

Consequences for shipowners 

The obligation to assist could have major consequences for the shipowners concerned. Refugees saved at sea may be considerable in number and could lead to significant problems and costs. Vessels trafficking the Mediterranean have, in the past, been expected to take part in Search and Rescue (SAR) operations involving boats carrying as many as 300 refugees. Quite a few of the Club’s members have already encountered these situations where they are called up by a Marine Rescue Coordination Centre (MRCC), or the relevant Coast Guard in any of the European Coastal states and are requested to participate in an SAR operation. When the boat carrying the refugees is found it is often a relatively small boat in distress, clearly not seaworthy and overloaded with refugees.

A member might well find themselves with hundreds of refugees aboard a vessel manned only by a crew of 20. Clearly, this creates an extraordinary, and potentially very dangerous, situation. The shipowner faces quite a challenge; these people have to be taken care of in the best possible way, at the same time as the security of the crew also has to be ensured. 

What costs are covered by the P&I insurance?

While the obligation to assist is clear, as are the possible criminal and civil legal consequences of failing to do so, the question concerning where the costs for the operation should fall as between a shipowner or a charterer, and/or their respective insurers, is not always as clear-cut. The constant stream of refugees coupled with the obligation to render assistance when lives are endangered, have led to many questions about what expenses should be covered by P&I insurance. 

First of all, it should be stressed that only expenditure which cannot be compensated by another party will be reimbursed by the P&I insurance. Consequently, before seeking reimbursement from the Club, the member should explore the possibility of being reimbursed by the authority instructing the shipowner to take part in the SAR operations, alternatively the flag state.

Costs for diversion – a considerable item 

The most considerable item for the shipowner will, in many cases, be the costs for the diversion of the vessel in order to rescue and disembark the refugees. SAR operations in the area around the busy Mediterranean routes typically last from a few hours up to a few days, depending on the circumstances of the individual case as well as the relevant vessel’s involvement. 

The member will also often have a very limited say about where the refugees should be disembarked. Often the local authorities decide a specific port to which the vessel is ordered. This port is not always the closest one as the local authorities are aware that in some ports that neighbour the sea-lanes where refugees are frequently found, landing arrangements may be strained to the limit already.

Costs for a diversion are covered by P&I insurance if the diversion is justified and reasonably undertaken, which is typically the case when a shipowner is requested to assist by a national authority. It is however important that the member always informs the Club about the event before the vessel diverts, in order to obtain approval and advice from the Club. The diversion starts when the ship changes course to rescue refugees and ends when the vessel is reasonably back on course to its original destination. 

Additional expenses 

The diversion costs that can be reimbursed include expenses for fuel, insurance, stores and provisions, as well as additional port charges attributable to the diversion and incurred as a direct consequence thereof. 

Port charges include pilots and tugs as well as port dues and fees. Cover is only provided for costs in excess of those that would have been incurred had it not been for the diversion. Credit should be made for costs saved, if any.

The member may be asked to supply details of actual and calculated costs in order for the Club to establish the compensation due. A bunker calculation should be supplied together with a bunker invoice and details of the additional distance sailed. All actions should be recorded in the deck log and a log extract is required from the member to obtain compensation from the Club for expenses incurred. 

Another item that is usually not as substantial as the diversion costs, but may still be considerable, are the costs that the shipowner incurs in order to manage the refugees´ care and maintenance while aboard. These additional expenses will also be covered by the P&I insurance.

Need for complementary insurance cover?

The diversion could lead to time being lost for the shipowner/charterer, however it is important to note that no compensation will be paid out under the P&I insurance for hire lost during the diversion. The Club is currently developing a cover, complementary to traditional P&I insurance, for such shortfall in revenue while the vessel isn’t able to trade. Please contact the Club for further information.

How to minimise negative consequences? 

When a request has been given to the shipowner to divert the ship, the member should, in addition to immediately notifying the Club, also alert the ship agents in the port where the refugees are to be landed or appoint an agent there to take care of the formalities. 

It should be noted that often when the vessel has entered port in order to disembark refugees and during the actual disembarkation, neither the Club’s correspondents nor the local agents are allowed to board the vessel until the refugees have been disembarked. Instead the vessel is basically seized by local authorities i.e. Harbour Master, Coastguard etc. 

Consequently, correspondents and agents can’t offer the Master much assistance at this stage. However, they render valuable assistance in taking the precautions necessary, before the vessel arrives, to allow a smooth disembarkation of the refugees. Such precautions taken before the ship’s arrival will ensure that the member meets his obligations and it will also speed up the procedure and minimise the delay to the vessel. They can also be on standby during the disembarkation and attend the vessel on completion of the formalities to offer any support that is needed.

Paying party could be the shipowner or the charterer – or both 

It should be noted that the starting point in this article has been that the shipowner is liable for costs. However it should be stressed that if the vessel is under a charter, the wording of the C/P will decide where the costs for the diversion, as well as other costs, will fall. The paying party could be the shipowner or the charterer or there could be an apportionment between the two, depending on the wording of the relevant C/P. In view of the high amounts that might be involved it is important to keep this question in mind when drafting charterparties, to minimise the exposure and avoid uncertainty through clear wording

 

The clubs point of view regarding your P&I cover

Refugees saved at sea may be considerable in number and could lead to significant problems and costs. In view of this, the stream of refugees has led to many questions concerning what expenses that could be covered by the P&I insurance.

The most considerable item for the ship owner will in many cases be the costs for the diversion of the vessel in order to save and also land the refugees. Costs for a diversion are covered by the P&I insurance if the diversion is justified and reasonably undertaken which typically is the case when a ship owner is contacted by coast guard and asked to assist with rescue operations of refugees. It is however important that the Member always inform the Club about the event before the vessel diverts in order to obtain approval and advice from the Club.

The diversion starts when the ship changes course for the rescue of the refugees. It ends when the ship is reasonably back on course to her intended destination. The diversion costs which will be reimbursed include expenses for fuel, insurance, extra wages, stores, provisions and port charges attributable to such a reasonable diversion.

Port charges include pilots and tugs as well as port dues and fees. Cover is only admitted for costs in excess of those which would have been incurred if it had not been for the diversion. It means that costs which the Member would have incurred anyway should not be reimbursed. Credit should be made for costs saved, if any. The Member may be asked to supply details of actual and calculated costs in order for the Club to establish the compensation due.

A bunker calculation should be supplied together with a bunker invoice. All actions should be recorded in the deck log and a log extract is required from the Member to obtain compensation from the Club for his expenses. It is important to note that no compensation will be given for hire lost during the time of a diversion.

When the decision has been taken to divert the ship, the Member should also alert the ship agents in the port where the refugees should be landed or appoint an agent there to take care of the formalities. The local Club correspondent can also render valuable assistance in taking the precautions necessary to allow a smooth disembarkation of the refugees. Such precautions taken before the ship’s arrival will ensure that the Member meets his obligations and it will also speed up the procedure and minimize the delay for the vessel.

Another item that usually is not as substantial as the diversion costs, however still sometimes considerable, is the costs that the ship owner incurs in order to manage the refugees´ care and maintenance while aboard. These expenses will also be covered by the P&I insurance.

If you have any additional questions, you are always welcome to contact the Club.


Member Alert is published by The Swedish Club as a service to members. While the information is believed correct, the Club cannot assume responsibility for completeness or accuracy.

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