Maritime refugees: practical and legal issues that arise

Background

2015 has seen increased reporting of maritime casualties in the Mediterranean, as vessels carrying refugees from North Africa and the Middle East get into difficulties. The problem is not new. Refugees have been attempting to leave their home nations by sea for millennia. In the Mediterranean, migrants have been leaving Libya on a regular basis since 2013.

However, the scale of the problem (and heightened attention from the media) is at a new level. For example, at the start of 2015 alerts were issued to assist BLUE SKY M, and over 2000 migrants were rescued from 12 vessels on the weekend of 14-15 February 2015. More recently, up to 900 migrants are feared dead following the tragic capsize of another vessel on 19 April.

The international and national legal framework

Pursuant to Article 98 of UNCLOS1, "in so far as he can do so without serious danger to the ship, the crew or the passengers" the Master of a merchant vessel has a duty to "render assistance to any person found at sea in danger of being lost". This obligation is replicated under SOLAS2 Chapter V Regulation 33 which provides that absent "special circumstances" a vessel is "bound to proceed with all speed" to assist persons in distress3. Failure to do so can result in a fine or up to two years imprisonment.

A Master is therefore under a general duty to answer a distress call, whether received from a vessel directly or via an order of a competent maritime authority.

Position of Governments: Tension

Lady Anelay, a Foreign Office Minister in the UK House of Lords stated last year that: "We do not support planned search and rescue operations in the Mediterranean" as the prospects of assistance was a "pull factor . encouraging more migrants to attempt the dangerous sea crossing and thereby leading to more tragic and unnecessary deaths".4 Such a stance means that it is likely that commercial shipping will need to continue to go to the aid of migrant refugees in distress where national authorities have not targeted sufficient resources at this problem.

Issues that arise

The migrant issue poses many immediate issues for a shipowner, particularly where States do not offer immediate assistance to relieve the burden on merchant shipping. These include practical, safety, commercial and legal concerns, such as the following:-

1. The vessel's certificates which regulate authority to carry passengers/limits on number of people safely permitted onboard may be compromised, although usually there are exemptions for vessels engaged in rescue operations;
2. The presence of numerous additional person onboard may nonetheless call into question the vessel's seaworthiness;
3. There is a potential security threat posed to the crew both in terms of physical safety (in the face of overwhelming numbers) but also to the crew's health and other concerns;
4. The vessel may have insufficient supplies to cater for the additional people onboard;
5. If nearing the end of a voyage, the vessel may have insufficient remaining bunkers to engage in a lengthy rescue operations;
6. Delay will impact time sensitive cargoes or even render them dangerous;
7. As a minimum, the vessel will almost certainly experience commercially significant delays, or will need to deviate, giving rise to potential disputes under contracts of carriage.  For example, disputes may arise as to whether hire is payable for the period during which rescue operations are conducted.

It remains unclear however, whether any of the above will amount to a "special circumstance" within the meaning of SOLAS Chapter V Regulation 33. Many of these considerations may not do so although this will be fact dependent in each case.

Practical Advice and Guidance for Members and Masters

As noted above, in most situations, the Master of a merchant vessel is under an obligation to assist with migrant rescues at sea. One of the primary sources of practical guidance in such situations is available via the

International Chamber of Shipping

including the Checklists for Owners and Masters within Appendix A and B of