Chapter 1 The Shipmaster’s Duty to Render Assistance at Sea: Challenges and Considerations Posed by Irregular Migration by Sea

In: The Duty of the Shipmaster to Render Assistance at Sea under International Law
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Felicity G. Attard
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1.1 Introduction

Throughout history, political and social changes in various parts of the world have contributed to the phenomenon of irregular migration by sea. The majority of these clandestine mixed migration 1 crossings are organised by human smugglers 2 and generally take place in small, overcrowded, and unseaworthy vessels. 3 As a result, distress situations have become a regular occurrence resulting in numerous human tragedies 4 and negatively affecting the safety of navigation. 5 Shipmasters are regularly requested to respond to distress at sea situations, which often occur on the high seas. This generally places them in a better position to provide a rapid and effective response than sar State vessels, which may take longer to arrive at sites of distress. This Chapter provides the reader with an overview of developments relating to the shipmaster’s duty to render assistance in the face of irregular migration by sea. It identifies and examines challenges and considerations faced by the shipmaster when conducting imros, and how these burden further the shipmaster’s duty to render assistance at sea.

1.2 The Shipmaster’s Duty to Render Assistance at Sea in Irregular Migrant Rescue Operations

The practice of shipmasters rendering assistance to migrants in distress is not new. During the 1970s Indochinese crisis, 6 the establishment of communist governments in Vietnam, Cambodia, and Laos led to more than 1.6 million migrants fleeing by sea to neighbouring States such as Hong Kong, 7 Thailand, and Singapore. 8 These individuals were labelled ‘boat people’, a term now commonly used to describe migrants who flee countries by sea in small and overloaded boats. 9 During this period, thousands of migrants were rescued by shipmasters of passing commercial vessels. 10 Overwhelmed by the growing numbers of arrivals by sea, many of the governments of Southeast Asian States refused to allow disembarkation of rescuees. 11 The crisis was solved by joint efforts of various nations. Certain countries in Southeast Asian region provided ‘boat persons’ temporary asylum, whilst the United States of America, 12 Australia, and other European States offered refugees resettlement. 13 Vietnamese officials also took measures to halt ‘boat people’ fleeing the country, preventing many migrant crossings. 14 Whilst the irregular maritime routes in the 1970s appeared to be largely confined to Southeast Asia, today they can be found in other regions such as the Mediterranean. 15

The mv Tampa incident reignited international concerns with respect to the shipmaster’s problems emanating from the duty to render assistance in cases of imros. On 22 August 2001, the Norwegian-registered container ship, 16 manned by a twenty-seven member crew, 17 commenced its voyage, sailing from Australia to Singapore. 18 After four days at sea, the Australian authorities instructed the vessel to assist an Indonesian boat carrying more than 400 migrants in distress. 19 The mv Tampa’s shipmaster diverted course and successfully brought on board all migrants, despite exceeding the vessel’s capacity. The situation was further complicated by the fact that a number of rescuees required urgent medical attention. 20 In light of these circumstances, the shipmaster felt compelled to request to disembark the migrants at the closest port in Christmas Island. 21 The Australian government denied access to the port, and the mv Tampa remained anchored 14 nautical miles 22 off the coast for several days. 23 After tense diplomatic negotiations, a solution was eventually announced in terms of which Australia, New Zealand, and Nauru agreed on a process of resettlement of the migrants, 24 allowing the mv Tampa to proceed with its original voyage. 25 The delay was estimated to have cost the shipowner thousands of dollars. 26

In more recent years, the conflict and instability in different regions of the world have led to a dramatic increase in mixed migration by sea, and consequently increased requests for shipmasters to carry out imros. As noted above, 27 generally maritime migration routes are determined by the source of problems and political realities in various countries. Turmoil in African States has led to increased irregular migration by sea through the central Mediterranean towards Europe. The problem intensified with the commencement of the Libyan crisis. 28 Likewise, mixed migration flows to Europe increased via the eastern Mediterranean route as a result of the Syrian conflict, 29 and irregular maritime migration resurfaced in Southeast Asia following heightened tensions and persecution of Rohingya minorities in Myanmar’s northern Rakhine State. 30 Irregular maritime migration has also been documented in other regions, including in West Africa, 31 the Horn of Africa, 32 the Caribbean, 33 the Black Sea, 34 and the English Channel. 35

Despite the emergence of various migration by sea hotspots, the Mediterranean remains the most active maritime passage. It is also a major commercial shipping route. These factors have resulted in unprecedented levels of imros carried out by shipmasters in this region. 36 With the escalation of the migration crisis between 2014 and 2015, more than 1,000 merchant ships were involved in rescue operations, assisting more than 65,000 migrants. 37 During this period, commercial vessels became the primary sar assets in the central Mediterranean. 38 Between 2016 and 2017, there was a slight decline in commercial vessels carrying out imros due to the increased involvement of non-governmental organisation 39 vessels in providing sar services. 40 Nevertheless, active commercial vessel involvement in imros continued during these years. Shipping organisations such as the International Chamber of Shipping 41 noted that ‘…the number of merchant ships involved in rescue operations has remained relatively constant since 2015 and the average number of persons rescued by each merchant ship remains over 110…’, 42 while the European Community of Shipowners’ Association 43 found that ‘merchant vessels are still often involved in sar operations in the central, western and eastern Mediterranean’. 44 The continuous efforts of shipmasters in imros also received special recognition from the imo. 45

Political developments which occurred between 2017 and 2018 dramatically shifted the paradigm of rescue operations within the Mediterranean. Italy’s introduction of the 12-point Code of Conduct for ngos undertaking Activities in Migrants’ Rescue Operations at Sea, adopted in July 2017, 46 placed significant restrictions on ngo sar activities, 47 where failure to comply effectively meant refusal of disembarkation into Italy. Furthermore, the European Union 48 made efforts to support the Libyan coastguard through military operations designed to curb smuggling, which were entrusted to Italian authorities. 49 Patrol boats, training, and funding were provided to Libyan authorities with the aim of intercepting vessels before they could reach Europe. 50

A change in government in early 2018 led Italy’s then deputy prime minister to adopt a strict approach to disembarkation. The summer of 2018 marked a steep decline in ngo SAR operations in the central Mediterranean, as various ngo vessels were impounded and their shipmasters prosecuted. 51

These practices prompted an immediate reaction from ics, which argued as follows:

If ngo vessels are prevented from disembarking rescued persons in Italy, this would also have significant implications for merchant ships and the movement of trade throughout the Mediterranean, as merchant ships would again have to become involved in a greater number of rescues. 52

In fact, the decline in ngo sar operations did indeed lead to a resurge in shipmasters being required to provide assistance, with negative commercial implications. One high-profile case involved the Danish-flagged Alexander Maersk, 53 which was instructed by Rome’s rescue co-ordination centre to assist a distressed vessel off the Southern coast of Italy. 54 The shipmaster safely brought on board 113 migrants, but was left waiting out at sea for five days before being authorised to disembark in Pozzallo on 26 June 2018. 55

Incidents such as the Alexander Maersk rescue and other imros, have placed increased burdens on those who have to exercise the duty to render assistance, particularly the shipmaster. The following sections explore the legal and practical challenges faced in the implementation of this duty to render assistance at sea in light of contemporary realities associated with imros.

1.3 Safety, Seaworthiness, and Security Challenges

The number of migrants rescued by a commercial vessel often outnumbers its crew. 56 This may create major difficulties in ensuring safe and swift rescues, especially in perilous weather conditions. Commercial vessels are not generally designed to approach much smaller vessels, which are often being steered by unskilled people and rescuees. 57 Merchant vessels’ high sides and lack of equipment for the transfer of people increase risk during rescues. 58 Such dangers were evidenced in the 2015 King Jacob incident involving a Portuguese-registered 152-metre cargo ship. 59 On 18 April 2015, the vessel’s shipmaster, on instructions from Italian authorities, attended to a fishing vessel in distress off Lampedusa. 60 The twenty-seven-meter-long boat was carrying more than 800 migrants. 61 The shipmaster described how on approaching the fishing vessel, the steerer allegedly manoeuvred erratically and rammed into the King Jacob. 62 The migrants on board the fishing vessel appeared to have panicked and shifted to one side of the vessel, causing it to capsize. Only twenty-eight people were known to have survived the incident. 63 This event prompted an immediate reaction from then ics Secretary General, who stated that the:

…tragic events of the weekend seem to have shown, merchant ships are really not best equipped to deal with such large-scale operations involving hundreds of people. 64

Crew members have been known to put their own lives at risk when assisting in imros, 65 and bringing the migrants aboard the vessel could increase health and safety concerns. Crew members may be exposed to infectious diseases and illnesses, 66 which may result in the vessel’s quarantine or lead States to prohibit the vessel from entering their waters. 67 This was a major concern in the wake of the West African Ebola epidemic in 2014, when certain States prevented vessels carrying persons affected by the virus to dock at their ports. In September 2014, Malta turned away the mv Western Copenhagen on suspicion that at least one person on board was infected by the Ebola virus. The vessel had left from Guinea, one of the areas most affected by the disease, and was en route to Ukraine. After being refused entry into Malta’s internal waters, the vessel finally docked in Sicily. 68

The shipmaster and crew may also face violent and armed migrants. 69 During the mv Tampa affair, the rescuees on board threatened to use violence if they were disembarked in Indonesia. 70 Moreover, concerns have been raised that terrorists may pose as migrants to obtain access to a State territory. 71 Seafarers employed on merchant vessels are rarely experienced with undertaking or trained to undertake imros. 72 Rescue efforts may take days to complete, and their toll on a stressed crew may be significant. 73 Additionally, boarding merchant vessels may pose risks to the migrants themselves. Such vessels rarely have enough provisions to accommodate large groups of migrants, and they seldom have the resources to attend to any urgent medical requirements. 74 It may not be possible for the shipmaster to maintain law and order; he may be unable, for example, to monitor the movements of all rescuees. The latter could wander off to restricted areas of the ship such as the engine room or cause damage to the cargo or the vessel itself. 75

1.4 Commercial Challenges

The shipmaster is considered to be the representative of the shipowner, and is required to implement the commercial objectives of the ship’s voyage. 76 This implies that the shipmaster has to consider commercial challenges associated with carrying out imros. The problem here is that most rescue operations are of an urgent nature and generally have negative commercial consequences. Indeed, it may be argued that in the face of the overwhelming duty to save lives at sea, commercial considerations play a subsidiary role; it appears difficult to defend the argument that a rescue operation should not be undertaken because of commercial costs.

Migrant rescue operations tend to be complex and costly. 77 Ambivalence appears to exist regarding which parties should be responsible for bearing the costs associated with imros. 78 Whilst certain expenses may be covered by the vessel’s insurance, 79 much will depend on the type of insurance cover. A lack of adequate insurance may expose the shipowner to hefty financial and commercial losses; 80 for example, providing assistance may entail loss of profit or damage due to, inter alia, deviation or delayed disembarkation. A review of major Protection and Indemnity 81 Clubs’ insurance rules demonstrates that most coverage provided extends to limited expenses related to rescues or landing of rescued refugees, 82 specifically costs of fuel, insurance, port charges, wages, stores, and provisions. 83 However, most Clubs do not cover costs incurred in respect of the delay, such as the loss of freight in hire for the vessel or demurrage on, detention of, or delay of the vessel. 84 For instance, Rule 3, section 2.13 of the American Club Rules explicitly excludes cover for consequential loss of profit or depreciation arising from rescue operations. 85

Delays in the vessel’s voyage may be further increased due to the reluctance of States to agree on the disembarkation of migrants, a concern which was exemplified by the events surrounding the mv Tampa 86 and more recent cases such as that of the mv Salamis. On 4 August 2013, the Rome rescue co-ordination centre instructed the shipmaster of the Liberian-flagged mv Salamis to rescue a group of migrants off Libya. 87 After embarking 102 migrants, Italy instructed the shipmaster to proceed to the Libyan port of Khoms, which they considered to be the nearest port of safety to the site of rescue. 88 However, the shipmaster disregarded Italy’s orders and proceeded to Malta, his next port of call, hoping to avoid delays and any eventual commercial costs and inconvenience. 89 On approaching the Valletta Grand Harbour, he was denied permission to disembark the migrants and was ordered to remain outside the Island’s territorial sea. 90 It was only after intense diplomatic discussions between Italy and Malta, as well as increased pressure from international organisations such as the unhcr, that the Italian authorities finally agreed to accept the migrants and the mv Salamis docked in Syracuse. 91

In some cases, migrants themselves may induce delay when they refuse to be rescued or disembarked in a particular State. On 22 October 2014, Malta instructed the cs Caprice to divert its course and attend to a vessel in distress carrying over 500 migrants. 92 The shipmaster made contact with the migrants on board the vessel, informing them that they were going to be rescued and brought on board; they repeatedly refused assistance, as they believed that he would not take them to their intended destination which was Italy. It took days before the migrants were safely embarked on the cs Caprice. 93

1.5 Human Rights and Refugee Rights Considerations

The challenges mentioned above may be further complicated by the shipmaster’s duty to protect human rights. The shipmaster and his crew must treat rescued migrants humanely once they are taken aboard. 94 Furthermore, some may be entitled to additional protection under refugee law. 95 According to the well-established principle of non-refoulement, the shipmaster may not disembark rescuees to a place where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group, or political opinion. 96 This may not always be the easiest task for the shipmaster, considering the lack of opportunities to assess an individual’s status out at sea, as well as the general reluctance of coastal States to accept rescued migrants. 97

1.6 Conclusion

This Chapter examined major challenges and considerations surrounding imros, which are creating major burdens for the shipmaster. It has recently been reported that shipping companies are avoiding shipping routes where they are likely to encounter migrant vessels, as seafarers are reluctant to agree to work on such routes. 98 unhcr also reports that certain vessels have even become unwilling to disclose their positions to avoid being directed by sar authorities to assist in imros. 99 In the following chapters, the effects of these challenges on the shipmaster’s duty to render assistance at sea are analysed. It is now proposed to commence this analysis with a review of the historic development that led to the formulation of rules regulating the duty to render assistance at sea.

1

According to the International Organization for Migration (iom), mixed migration refers to ‘complex population movements including refugees, asylum seekers, economic migrants and other migrants’; see iom, ‘International Dialogue on Migration 2008 – Challenges of Irregular Migration: Addressing Mixed Migration Flows Discussion Note’ (7 November 2008) MC/INF/294, para 6.

2

The European Police Office (europol) and the International Criminal Police Organization (interpol) estimate that people smuggling operations facilitate more than 90 per cent of the migrant influx coming to Europe; see europol-interpol, ‘Migrant Smuggling Networks: Executive Summary’ (May 2016) 2.

3

United Nations General Assembly (unga), ‘Report of the Secretary-General on Oceans and the Law of the Sea’ (10 March 2008) UN Doc A/63/63, paras 39, 89–97; imo msc, ‘Interim Measures for Combating Unsafe Practices Associated with the Trafficking or Transport of Migrants by Sea’ (12 June 2001) MSC/Circ.896/Rev.1; United Nations Office on Drugs and Crime (unodc), Issue Paper: Smuggling of Migrants by Sea (unodc 2011) <https://www.unodc.org/documents/human-trafficking/Migrant-Smuggling/Issue-Papers/Issue_Paper_-_Smuggling_of_Migrants_by_Sea.pdf> accessed 5 August 2019, 26–32.

4

Particularly in the Mediterranean Sea which has been labelled by various international oranisations as the world’s most dangerous destination for irregular migrants; see Philippe Fargues, ‘Four Decades of Cross-Mediterranean Undocumented Migration to Europe – A Review of the Evidence’ (iom 2017) 1. The United Nations High Commissioner for Refugees (unhcr) reported that between 2014 and 2019, more than 19,000 have died or gone missing in the Mediterranean; see unhcr Operational Portal, ‘Situations’ <https://data2.unhcr.org/en/situations/mediterranean/location/676> accessed 6 May 2019.

5

Natalie Klein, Maritime Security and the Law of the Sea (oup 2012) 123; James Kraska and Raul Pedrozo, International Maritime Security Law (Martinus Nijhoff Publishers 2013) 658–659; Anne T Gallagher and Fiona David, The International Law of Migrant Smuggling (cup 2014) 446.

6

Barry Wain, ‘The Indochina Refugee Crisis’ (1979) 58 Foreign Affairs 160, 160–180.

7

Hereafter referred to as HK.

8

Wain (n 6) 116.

9

Mark Cutts, The State of the World’s Refugees 2000: Fifty Years of Humanitarian Action (oup 2000) 79.

10

unga ‘Report of the Secretary-General on Oceans and the Law of the Sea’ (7 November 1979) UN Doc A/34/627 (1979 Report on the Oceans and the Law of the Sea), anx i para 19.

11

Ibid para 21.

12

Hereafter referred to as the US.

13

William Courtland Robinson, ‘The Comprehensive Plan of Action for Indochinese Refugees, 1989–1997: Sharing the Burden and Passing the Buck’ (2004) 17 JRefugStud 319, 319–332.

14

Ibid.

15

See pages 8–11.

16

Jessica E Tauman, ‘Rescued at Sea, But Nowhere to Go: The Cloudy Legal Waters of the Tampa Crisis’ (2002) 11 PacRimL&PolyJ 478, 476.

17

Ibid.

18

Paul Myburgh, ‘We Request You to Take Mercy: Human Flotsam and Inhumane Jettison in the Tampa Incident’, Maritime Law Association of Australia and New Zealand Branch Seminar (Wairakei, 15–17 March 2002) 2.

19

Myburgh (n 18) 1; Frederick J Kenney Jr and Vasilios Tasikas, ‘The Tampa Incident: imo Responses and Perspectives on the Treatment of Persons Rescued at Sea’ (2003) 12 Pacific Rim L&P J 144, 146; Tauman (n 16) 462; Erik Røsæg, ‘Refugees as Rescuees – the Tampa Problem’ (2002) 295 simply 43, 45.

20

Rolf E Fife, ‘The Duty to Render Assistance at Sea: Some Reflections after Tampa’ in Jarna Petman and Jan Klabbers (eds), Nordic Cosmopolitanism: Essays in International Law for Martti Koskenniemi (Martinus Nijhoff Publishers 2003) 471–472; Tauman (n 16) 464; Kenney and Tasikas (n 19) 146–147.

21

Fife (n 20) 472.

22

Hereafter referred to as nm.

23

Kenney and Tasikas (n 19) 147.

24

Fife (n 20) 473; Tauman (n 16) 466.

25

Myburgh (n 18) 3; Tauman (n 16) 466.

26

The shipping company, Wallenius Wilhelmsen, had to hire two freighters to replace the mv Tampa during its eight-day delay. It also suffered additional losses as a result of diverting the vessel and provisioning it while it was anchored off Christmas Island; see Tauman (n 16) 476.

27

See pages 5–7.

28

See further Martin Baldwin-Edwards and Derek Lutterbeck, ‘Coping with the Libyan Migration Crisis’ (2018) JEthnMigrStud 1, 4–11.

29

According to statistics provided by unhcr, between 2014 and 2019 more than 1 million refugees and migrants arrived in Europe by sea; see unhcr Operational Portal, ‘Situations’ <https://data2.unhcr.org/en/situations/mediterranean> accessed 27 May 2019.

30

See generally unhcr, ‘Mixed Maritime Movements in South-East Asia in 2015’ (unhcr 2015); see also Sebastien Moretti, ‘Protection in the Context of Mixed Migratory Movements by Sea: The Case of the Bay of Bengal and Andaman Sea Crisis’ (2018) 22 ijhr 237, 237–261.

31

Particularly maritime migration routes from Morocco to Spain; see Regional Mixed Migration Secretariat (rmms), ‘Mixed Migration in West Africa – Data, Routes and Vulnerabilities of People on the move’ (rmms 2017) 8.

32

Increased irregular migration by sea flows have been documented from States such as Ethiopia, Somalia, and Djibouti in the Horn of Africa across the Gulf of Aden towards Yemen; see iom, ‘Irregular Migration by Sea from Horn of Africa to Arabian Peninsula Increases’ <https://missingmigrants.iom.int/irregular-migration-sea-horn-africa-arabian-peninsula-increases> accessed 1 June 2019.

33

In particular, maritime crossings from Haiti towards the US, which have persisted for decades; see generally Elizabeth Ferris, ‘Recurrent Acute Disasters, Crisis Migration: Haiti Has Had It All’ in Susan F Martin, Sanjula Weerasinghe, and Abbie Taylor (eds), Humanitarian Crises and Migration: Causes, Consequences and Responses (Routledge 2014) 77–95. Furthermore, in 2018, several maritime crossings through the Caribbean were reported as a result of outflows from the Bolivarian Republic of Venezuela; see unga ‘Report of the Secretary-General on the Oceans and the Law of the Sea’ (11 September 2019) UN Doc A/74/350, para 29.

34

The European Border and Coast Guard Agency (Frontex) reports that in 2017 more than 500 migrants were detected crossing the Black Sea; see Frontex, ‘Risk Analysis for 2018’ (Frontex 2018) 19; see also Kit Gillet, ‘Smugglers Make Test Runs with Migrants Across the Deadly Black Sea Route’ The Guardian (London, 12 September 2017).

35

According to statistics provided by the United Kingdom’s Home Secretary, more than 500 migrants attempted to travel into the country in small boats in 2018; see Aamna Mohdin, ‘Channel Migrant Crossings: Who Is Coming and Why?’ The Guardian (London, 28 December 2018); Greg Heffer, ‘Channel Migrants: What Are the Numbers Behind the “Major Incident”’ Sky News (London, 2 January 2019). In 2019, the number of migrants crossing the English Channel towards British shores doubled to over 1,000; see House of Commons Library, ‘Migrants crossing the English Channel’ (4 November 2019) <https://commonslibrary.parliament.uk/insights/migrants-crossing-the-english-channel/> accessed 7 November 2019.

36

Hernan del Valle, ‘Search and Rescue in the Mediterranean Sea: Negotiating Political Differences’ (2016) 35 rsq 1, 1–2.

37

Jonathan Saul, ‘In Mediterranean, Commercial Ships Scoop Up Desperate Human Cargo’ (21 September 2015) <http://www.reuters.com/investigates/special-report/europe-migrants-ship/> accessed 16 September 2017.

38

Gallagher and David (n 5) 446–447.

39

Hereafter referred to as ngo.

40

For a further analysis of ngo sar activities within the Mediterranean, see generally Ch 4, s 4.2.2; see also Eugenio Cusumano, ‘Emptying the Sea with a Spoon? Non-governmental Providers of Migrants Search and Rescue in the Mediterranean’ (2017) MarPolicy 91, 91–98; Eugenio Cusumano, ‘Humanitarians at Sea: Selective Emulation Across Migrant Rescue ngos in the Mediterranean’ (2019) 40 ContempSecurPolicy 239, 239–262.

41

Hereafter referred to as ics.

42

Reported in imo, ‘Statement to the International Dialogue on Migration Geneva’ (19 July 2017) <https://www.iom.int/sites/default/files/our_work/ICP/IDM/2017_IDM/Panel%206%20-%20IMO%20is%20the%20UN%20Agency%20responsible%20of%20safety%20of%20life%20at%20sea.pdf> accessed 4 June 2018.

43

Hereafter referred to as ecsa.

44

ecsa, ‘Merchant Ships’ Involvement in Migrants’ Search and Rescue Operations Growing Again’ (24 May 2017) <https://www.ecsa.eu/news/merchant-ships-involvement-migrants-search-and-rescue-operations-growing-again> accessed 1 June 2017.

45

imo Assembly, ‘Special Recognition for Merchant Vessels and their Crew involved in the Rescue of Mixed Migrants at Sea’ (17 December 2015) Res A.1093(29).

46

Code of Conduct for ngos undertaking Activities in Migrants’ Rescue Operations at Sea (July 2017) <https://www.avvenire.it/c/attualita/Documents/Codice%20ONG%20migranti%2028%20luglio‌%202017%20EN.pdf> accessed 3 December 2018 (Code of Conduct).

47

In fact, several ngos refused to sign the code; see further Eugenio Cusumano, ‘Straightjacketing Migrant Rescuers? The Code of Conduct on Maritime ngos’ (2019) 24 Mediterranean Politics 106, 106–114.

48

Hereafter referred to as EU.

49

In particular the EU’s Naval Force in the Mediterranean’s Operation Sophia; see eg Sophia’s expanded mandate with the adoption of Council Decision (cfsp) 2016/993 of 20 June 2016 amending Decision (cfsp) 2015/778 on a European Union military operation in the Southern Central Mediterranean (eunavfor med operation sophia) [2016] oj L162/18, arts 2a-b. See further Giuseppe Campesi, ‘Italy and the Militarisation of Euro-Mediterranean Border Control Policies’ in Elaine Burroughs and Kira Williams (eds), Contemporary Boat Migration (Rowman & Littlefield International Ltd 2018) 66–67.

50

European External Service Action, ‘eubam Libya Initial Mapping Report Executive Summary’ (25 January 2017) Doc 56167, 42.

51

Ch 4, s 4.2.2.2.b.

52

ics, ‘Shipping Industry Very Concerned about Italian Policy on Migrants Rescued at Sea’ (11 June 2018) <http://www.ics-shipping.org/news/press-releases/view-article/2018/06/11/shipping-industry-very-concerned-about-italian-policy-on-migrants-rescued-at-sea> accessed 20 June 2018; see also ecsa, ‘European Shipowners: Italian Policy of Refusing Migrants to Enter its Ports Alarming’ (11 June 2018) <https://www.ecsa.eu/news/european-shipowners-italian-policy-refusing-migrants-enter-its-ports-alarming> accessed 20 June 2018.

53

World Maritime News, ‘Merchant Ships Hostage of Italian Immigration Policy’ (28 June 2018) <https://worldmaritimenews.com/archives/255676/merchant-ships-hostage-of-italian-immigration-policy/> accessed 1 August 2018.

54

Ibid.

55

‘Italy Lets in Container Ship Carrying Migrants after Standoff Lasting Days’ The Times of Malta (Birkirkara, 26 June 2018).

56

This is especially true since improvements in technology have led to decreased crew numbers and an attendant reduction in facilities for crew. Commercial vessels are typically manned by a small crew of around twenty to thirty people. See further Amnesty International (ai), ‘Europe’s Sinking Shame: The Failure to Save Refugees and Migrants at Sea’ (ai 2015) eur 03/1434/2015 (2015 ai Report) 17; Record of the Views of the Inter-agency meeting with the Maritime Industry on Mixed Migration, held at imo on 30 October 2017 (2017 Inter-agency Report) <https://refugeesmigrants.un.org/sites/default/files/stocktaking_imo_arbour.pdf> accessed 1 August 2018, para 1.4.

57

2017 Inter-agency Report, para 1.3.

58

Gallagher and David (n 5) 446; 2015 ai Report (n 56) 17.

59

Jim Yardley and Dan Bilefsky, ‘Migrant Boat Captain Steered Toward Tragedy in Mediterranean, Authorities Say’ The New York Times (New York, 21 April 2015).

60

Julian Miglierini, ‘Migrant Tragedy: Anatomy of a Shipwreck’ bbc News (London, 24 May 2016).

61

Ibid.

62

Yardley and Bilefsky (n 59).

63

Ibid.

64

ecsa, ‘Shipping Industry Calls on EU Leaders to be Decisive and Immediately Increase Mediterranean Search and Rescue Resources’ (23 April 2015) <https://www.ecsa.eu/news/shipping-industry-calls-eu-leaders-be-decisive-and-immediately-increase-mediterranean-search> accessed 27 November 2017.

65

During the mv Tampa rescue operation, the vessel’s first officer was reported to have leapt between the stricken ferryboat and the mv Tampa in order to bring the migrants to safety; see Barbie Dutter, ‘Australia Let Us Down, Says Captain of Refugee Ship’ The Telegraph (London, 7 September 2001).

66

Saul (n 37).

67

For a detailed discussion on the issue of disembarkation of rescued migrants; see Ch 3, ss 3.2.3.3.c and 3.4.1.4.

68

Miriam Dalli, ‘Malta Turns Away Merchant Ship over Ebola Suspicion’ Malta Today (San Gwann, 18 September 2014); ‘Ebola Outbreak: Malta Rejects Ship Carrying Suspected Case’ bbc News (London, 18 September 2014); Herman Grech, ‘Malta Bars Ship Carrying Suspected Ebola Patient’ The Times of Malta (Valletta, 18 September 2014).

69

See also the El Hiblu 1 and Vos Thalassa incidents discussed in Ch 4, s 4.2.1.3.a.

70

Tullio Scovazzi, ‘The Particular Problems of Migrants and Asylum Seekers Arriving by Sea’ in Laura Westra, Satvinder Juss, and Tullio Scovazzi (eds), Towards a Refugee Oriented Right of Asylum (Routledge 2016) 202.

71

This danger was reflected in the allegation that one of the 2015 Paris bombers entered Greece posing as a refugee. He was purportedly rescued from a sinking migrant vessel; see Ben Farmer, ‘Who is Salah Abdeslam and who were the Paris terrorists? Everything we know about the isil attackers’ The Telegraph (London, 18 March 2016) <http://www.telegraph.co.uk/news/worldnews/europe/france/11996120/Paris-attack-what-weknow-about-the-suspects.html/> accessed 1 September 2018. See also ‘Nine men with links to terrorism caught in Tunisia before embarking on boat to Europe’ The Malta Independent (St.Julian’s, 14 August 2018); and Valsamis Mitsilegas, ‘Immigration Control in an Era of Globalization: Deflecting Foreigners, Weakening Citizens, Strengthening the State’ (2012) 19 IndJGlobalLegalStud 3, 11–12.

72

Asne K Aarstad, ‘The Duty to Assist and its Disincentives: The Shipping Industry and the Mediterranean Migration Crisis’ (2015) 20 Mediterranean Politics 413, 415.

73

2017 Inter-agency Report, para 1.4.

74

Ibid.

75

Merchant vessels may be carrying highly flammable and dangerous cargoes that could cause major accidents if tampered with; see James Politi and Joel Lewin ‘Shipping Companies Warn of Migrant Rescue Risks’ The Financial Times (London, 18 January 2015).

76

Nikoleta Radionov, ‘Presumption of the Shipmaster’s Criminal Responsibility for Narcotic Drugs in Ship’s Cargo – Maritime Reality Check’ (2010) 49 cml 269, 294; John A C Cartner, Richard P Fiske, and Tara L Leiter, The International Law of the Shipmaster (Informa 2009) 122–124.

77

According to analysts, costs for a single imro may exceed 100,000 US dollars; see Jackie Northam, ‘Merchant Ships Called on to Aid Migrants in the Mediterranean Feel the Strain’ National Public Radio (Washington, DC, 22 April 2015) <http://www.npr.org/‌sections/parallels/2015/04/22/401321950/merchant-ships-called-on-to-aid-migrants-in-mediterranean-feel-the-strain> accessed 2 January 2018. For a review of different types of costs associated with commercial vessel involvement in imros, see Richard L Kilpatrick Jr and Adam Smith, ‘The International Legal Obligation to Rescue During Mass Migration at Sea: Navigating the Sovereign and Commercial Dimensions of a Mediterranean Crisis’ (2016) 28 usf mlj 141, 154–155.

78

Richard L Kilpatrick Jr, ‘The “Refugee Clause” for Commercial Shipping Contracts: Why Allocation of Rescue Costs is Critical During Periods of Mass Migration at Sea’ (2018) 46 GaJIntl&CompL 403, 412–431.

79

Martin Davies, ‘Obligations and Implications for Ships Encountering Persons in Need of Assistance at Sea’ (2003) 12 PacRimL&PolyJ 109, 137–139; Aarstad (n 72) 11; Tauman (n 16) 16; Kilpatrick and Smith (n 77) 159.

80

William Spindler, ‘Between the Devil and the Deep Blue Sea’ (2007) Refugees Magazine 4; see also Tauman (n 16) 476–479; Gallagher and David (n 5) 443; Politi and Lewin (n 75).

81

Hereafter referred to as P&I.

82

The American Club By-Laws, Rules, List of Correspondents 2019, s 12.

83

Ibid r 1, s 12; West of England, Rules of Classes 1 & 2, 2019, Rules of Class 1, pt 1, s 5; Standard Club, P&I and Defence Rules and Correspondents, 2019/20, s C, r 3.4; Gard Rules 2019, pt ii, ch 1, r 32; The London P&I Club, Class 5 The Protection and Indemnity Rules 2019/2020, rr 9.7.1.2 and 9.9; Skuld 2019 P&I Rules, rr 11.1.2(c) and (d); UK P&I Club Rules & Articles 2019 for UK (Europe), UK P&I N.V., r 2(7) and (8).

84

See eg Skuld 2019 P&I Rules, r 11.2; Gard Rules 2019, pt ii, ch 1, r 32; see further Gard, ‘Refugee Rescue – P&I Cover and Assistance’ <http://www.gard.no/web/updates/content/20844660/refugee-rescue-pi-cover-and-assistance> accessed 25 June 2019.

85

The American Club By-Laws, Rules, List of Correspondents 2019, r 3, s 2.13.

86

Ch 1, s 1.2.

87

Sharon Attard, Christine Cassar, and Jean-Pierre Gauci, ‘The Malta Human Rights Report 2013’ (The People for Change Foundation 2013) (2013 Malta Human Rights Report) 12.

88

Patricia Mallia, ‘The mv Salamis and the State of Disembarkation at International Law: The Undefinable Goal’ (2014) 18 asil Insights <https://www.asil.org/insights/volume/18/issue/11/mv-salamis-and-state-disembarkation-international-law-undefinable-goal> accessed 6 May 2017.

89

2013 Malta Human Rights Report 12.

90

Ibid.

91

‘Migrants Expected to be Taken to Italy’ The Times of Malta (Valletta, 6 August 2013).

92

Saul (n 37).

93

Ibid.

94

For a detailed an examination of human rights considerations relating to the shipmaster’s duty to render assistance at sea; see Ch 5, s 5.2.

95

For an in-depth discussion of international protection afforded to refugees; see generally Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (3rd edn, oup 2007) Part 1; James C Hathaway, The Rights of Refugees under International Law (3rd edn, oup 2005) 154–270. For an analysis of refugee law considerations relating to the duty of the shipmaster to render assistance at sea; see Ch 5, s 5.3.

96

Ch 5, ss 5.3.1–5.3.2.

97

Gallagher and David (n 5) 443.

98

Speech given by Emanuele Grimaldi, President of Grimaldi Lines, Symposium on Maritime Search and Rescue: The Ship and the Shipowner (imo International Maritime Law Institute, Malta, 29 May 2015).

99

unhcr, ‘unhcr Proposals to Address Current and Future Arrivals of Asylum-seekers, Refugees and Migrants by Sea to Europe’ (unhcr 2015).

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