16/03/2017 UPDATE - NEW EXECUTIVE ORDER ON IMMIGRATION SUSPENDED The E.O. had an effective date of March 16, 2017. However, the key provisions of E.O. 13780, banning the issuance of new visas to nationals of the six designated countries for 90 days, have now been suspended by two Federal district court judges, one in Hawaii and the other in Maryland. A ruling is awaited from a third Federal judge in the State of Washington. Freehill Hogan & Mahar have released a client alert detailing the suspension and what it means for Members. 10/03/2017 President Trump signed a new Executive Order on the 6th March. This may lead to Members needing advice on the specifics of crew and stowaways if their ships are trading to the US. Chaffe McCall explain further: 'A new Executive Order (E.O), entitled ‘Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States’ was signed by President Trump on 06 March 2017 and it places new travel restrictions to the United States from Iran, Libya, Somalia, Sudan, Syria and Yemen.  Iraq is no longer included.

In the wake of the Order, maritime and port security issues headed for the spotlight. The Order includes no specific provisions altering the current status of the law on maritime border security, or specifying the legal consequences for vessels calling at U.S. ports. Moreover, law enforcement authorities have declined to comment on how they will go about implementing the Order. Nevertheless, the relevant applicable law provides some answers about the potential practical ramifications of the Order. 

Vessels with crewmembers who are nationals of the six banned countries

In order to maintain border protection, the Department of Homeland Security (DHS) has brought together a number of executive branch agencies, including Customs and Border Protection (CBP), Immigration and Customs Enforcement, U.S. Citizenship and Immigration, and the U.S. Coast Guard (“USCG”). These agencies are responsible for the implementation of the statutory and regulatory immigration regime, which generally provides that aliens may only enter the United States after their compliance with entry or admission requirements is verified at an immigration inspection station.

We expect that crew members who are nationals from the six aforementioned countries will be temporarily prohibited from leaving their vessels and entering the U.S. We do not expect the Order to prevent the calling of vessels with such crew members to U.S. ports as the impact on commerce may potentially be severe, not to mention the fact that the E.O.’s intent seems to be aimed at targeting “terrorists” and not commerce. Instead, the CBP and the USCG will likely exercise their broad immigration law enforcement powers to board vessels and examine crew members' documentation to ensure compliance with the law.  Ever since 9/11, vessels which are deemed to pose threats to national security have already been subject to guards being on board during their stay in U.S. ports.  Although in every instance the USCG refuses to explain what in particular has made a vessel a threat to national security, unofficial comments from the USCG seem to indicate that vessels coming from countries on the US watch list, or whose crew members come from certain Muslim countries, are the ones targeted.  We do not expect this to change.  If anything, now Owners may expect to see more requirements for the placing of guards on their vessels.  Of course, the expense of having guards can be reduced by proactive Owners and Operators who remove any and all crew members who are nationals of the six listed countries well in advanced of their vessels calling in a US port.

Crew changes in US ports

We expect that the Order will impact crew changes. Chapter 7 of the USCG Mission Management System provides that "it is unlawful for any person, including the owner, master, agent, charterer, or consignee of any vessel or aircraft, to bring into [the United States] any alien who does not have a current visa, if a visa is required." Since the Order suspends all visas of nationals from the six banned nations, crew changes including such nationals would most likely not be permitted during the ninety (90) day period of the ban.

Disembarking of sick or injured crew members in the US

The Order does not provide detailed exceptions to the immigration ban. Nevertheless, "when in the national interest" and "on a case-by-case basis," the Order leaves certain leeway for the issuance of "visas or other immigration benefits." Accordingly, we expect that sick or injured crew members may be paroled for medical treatment at the US port of entry, at the discretion of the CBP.  We expect that crew members from the six countries who are granted a medical parole will probably have to be treated while under guard – an added expense for the Owners. 

Stowaways

In the event that a stowaway-national from one of the six banned countries is found on board, we expect that standard law enforcement protocol will be implemented. Specifically, the owner, agent, or master of the vessel must immediately report the suspected or actual presence of a stowaway to the CBP. Further, the alien stowaway must be detained on board the vessel in order to be presented for inspection. The stowaway is to be treated in a humane and dignified manner. Typically, the stowaway will be detained and removed from the United States, pursuant to the instructions of the CBP. Stowaway detention and removal expenses remain with the vessel owner.

In summary, the exact ramifications of the Executive Order remain unclear with regard to foreign crews. Vessels calling at U.S. ports will most likely go through standard immigration law enforcement procedure.'

For further information and advice, please contact Daniel A. Tadros (tadros@chaffe.com; +1-504-585-7054).