On 1st November 2014, Italy officially ended the sea rescue mission “Mare Nostrum” which launched almost a year ago, following the fatal drowning of more than 360 African immigrants off the Island of Lampedusa on 3rd October 2013.
During its operation the Italian naval assets were engaged in 421 operations and rescued up to 150,000 migrants in 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The rescue mission, which was intended as an emergency plan, has been replaced by a smaller operation named “Triton”, overseen by the European Union’s Agency for External Border Security (Frontex).
The change is important to note for Club Members passing through the Mediterranean Sea, whose obligation to assist people in distress at sea remains intact.
The “Triton” operation started its activities on the 1st November 2014 in the geographical area extending over the Central Mediterranean. “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 Member State have offered to participate by supplying 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.
Triton will be operating under respect of international and EU obligations, such as the respect of fundamental rights and the principle of non-refoulement.
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
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)
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.”
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.
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.
For more information on this article or advice on people claims in general please contact our dedicated People Claims Syndicate - LS3.
London Syndicate 3 – The People Claims Syndicate exclusively handles all P&I/Defence matters relating to crew, stevedores, passengers, stowaways, refugees and third party visitors involving injury, illness, death, drug smuggling, immigration fines, loss of or damage to effects of crew/others and occupational disease.