Web Alert: Assisting vessels in distress in the Mediterranean in light of recent developments
23 July 2019
With the calmer, summer seas of the Mediterranean, conditions are more favourable for migrants to depart Libya in unseaworthy vessels with the hope of reaching Europe.
Commercial vessels transiting the waters around Libya, Tunisia and Malta are likely to receive a distress call from these vessels or be requested by the coast guard of any of those States to assist.
Recently, rescue operations have been terminated by the Italian authorities and private organisations, in reaction to the flow of migrants reaching its borders. Malta’s ports are closed to the disembarkation of migrants from Libya, and France and Greece take a similar approach.
Italy has begun to criminalise the disembarkation of migrants at its ports. The Master of MV SEA WATCH 3, Carola Rakete, was arrested on 29 June 2019 by Italian authorities for aiding and abetting illegal immigration and for forcing her way into the port of Lampedusa despite being denied permission to enter and causing damage to a police speedboat that tried to block entry. She was carrying onboard forty rescued migrants and had waited in international waters outside of Lampedusa for seventeen days whilst many of the migrants’ physical and mental conditions deteriorated. Rakete had warned the Italian authorities that she feared for the safety of her vessel and those on board, but they continued to deny access.
Other NGO search and rescue vessels have been treated in a similar way by the Italian authorities. The crew of MV IUVENTA are currently awaiting similar charges by the Italian courts for a similar act which took place in 2017. The vessel was seized, and the crew face criminal sanctions of up to twenty years in prison.
Charges against Rakete have since been dismissed by a judge in the court of Agrigento, on the basis that she was protecting human life and that Tunisia and Libya were not safe ports for disembarkation. Crucially, the judge held that Italian law must be interpreted in line with international law.
Subsequent vessels have disembarked migrants into the port of Lampedusa such as MV ALEX. Charges have again been brought against the crew for aiding and abetting illegal immigration.
Whilst this new law seems to be aimed at NGO vessels, the relevant decree has not stated as such. Given the ruling of the judge in Rakete’s case, the decree which has not yet entered into law may fail to become effective legislation. The position under Italian law therefore remains unclear as to how commercial vessels needing to disembark rescued migrants, will be treated by Italian authorities.
The problem for commercial vessels rescuing migrants in accordance with international law is finding a place receptive to migrants. Doing so could entail lengthy delays, costs, expenses and deviation. This could disrupt schedules and the integrity of cargo on board could be affected. This web alert examines the legal framework currently in place and P&I coverage.
In reaction to the disembarkation of migrants in Italy from NGO vessels, the Italian government passed decree no. 141001141 (8) on 14 June. Article 1 allows Italian authorities to limit or prohibit the entry or transit of vessels in Italian waters for reasons of public order and security. The only exceptions to that are military or governmental vessels.
The sanction for breaching such orders could result in administrative fines against the Master and /or owners of between EUR 10,000 to EUR 50,000. Repeat offending may result in vessel confiscation. If criminal charges of aiding and abetting illegal immigration are brought against the crew, the vessel will form part of the criminal investigation and will be detained by Italian authorities as evidence.
Whilst NGO vessels have been the target of Italian policy, the decree applies to all vessels with listed exceptions. Potentially, this law could be applied to any commercial vessel in Italian waters, attempting to disembark refugees in Italian ports.
Owners are obliged to render assistance to vessels in distress and they must rescue those whose life is in danger at sea. This is an accepted norm of international customary law and has been enshrined in numerous international treaties. The Convention For The Safety of Life At Sea (SOLAS) 1974, The International Convention on Maritime Search and Rescue (SAR) 1979, The Convention of the High Seas 1958 and the United Nations Convention on the Law of the Sea (UNCLOS) encode the obligation to rescue those in distress at sea.
Once on board, those who have been rescued must be taken to a place of safety in accordance with SAR ch. 1.3.2. The interpretation of this may cause difficulties. It could be anywhere including the next port of call on the vessel’s schedule, the closest port to where they were rescued or anywhere else where they will be safe to disembark and where they will receive medical treatment if required. In accordance with the doctrine of sovereignty, states must give permission for the entry of any person into their territory.
If the rescued persons claim refugee status, they must not be returned to a place where their human rights will be violated.
With uncertainty over whether some European ports will give or refuse permission to disembark those rescued at sea, returning to Libya maybe the only option. However, this may be far from ideal for both owners and migrants. For owners, there is a risk of delay and potentially local unrest. With regard to the migrants, Libya has been determined unsafe by the UNHCR (The UN Refugee Agency) because of its inhumane treatment, culminating in the recent airstrike which destroyed a detention centre and killed several detainees.
Standard Club P&I Rules
Should members be called to rescue migrants, rule 3.4 broadly covers the following costs and expenses which could be incurred in consequence:
- Port and other charges solely incurred for the purpose of landing those saved at sea or to secure their necessary medical treatment.
- The net loss to the member in respect of:
incurred for such purpose.
Fines may be covered under rule 3.16.2 for breaches of any customs or immigration laws or regulations.
Members are reminded that the extent of cover will depend upon the facts in each case. This is particularly true given the volatile political background to this issue.
The Rules do not cover delays which could be incurred as a result of awaiting permission to enter a port in order to disembark. These could be lengthy, especially as finding a port to accept migrants is proving more and more difficult.
If possible, it would be prudent to distribute the costs of delays between charterers and owners by incorporating an adequately worded clause into the charterparty. We are available to advise on the wording of such clauses and encourage our members to have these drafted by a qualified legal practitioner of the law governing the charterparty.
Given the delays that owners face in disembarking refugees, the extra costs and the difficulties in negotiating cost-sharing clauses, the Strike Club coverage may provide some certainty in these uncertain times. Please contact us for more information about how they can provide tailor-made coverage solutions for commercial delays resulting is unrecoverable lost time.
With special thanks to Mario Rondinella of Studio Legale Cimmino Carnevale De Filippis for advising on the Italian Law aspects of this web alert.