2 Rescue Versus Interception
Assistance to anyone in distress at sea is a rule of the sea that goes back further in
time. Humanitarian at its core, all ships are obliged by it and all people in distress
benefit from it, as enshrined in the United Nations Convention on the Law of the Sea
(UNCLOS), the International Convention for the Safety of Life at Sea (SOLAS), the
International Convention of Maritime Search and Rescue (SAR) and the International Convention on Salvage (the Salvage Convention).
More specifically, the ship’s master is obliged to render assistance to anyone in
danger of being lost with all possible and reasonably expected speed as long as the
rescue operation does not involve serious danger to the ship, the crew or the
passengers.
3 For its part, coastal States are obliged to promote the establishment,
operation and maintenance of search and rescue services,
4 helping those at sea
regardless of nationality.
5 The search-and-rescue operation may involve a
non-rescue vessel, public or private, to respond to the distress call if a rescue unit
is not available in the area, and authorities might go as far as requisition of a private
vessel in the vicinity.
6 Coastal States are also under the obligation of providing for
the disembarkation of rescued people at a place of safety, whenever a commercial
ship has provided assistance.
7 Generally speaking, this rule seeks to benefit rescued
people as much as the commercial ship engaged in the rescue operation to the extent
that it may then proceed with minimum further deviation and thus economic losses.
Tradition has established that disembarkation is meant to happen at the next port
of call and this State will be in charge of returning the rescued person to his or her
country of origin taking advantage of diplomatic or consular channels. However, the
increase in migratory flows has seriously affected this traditional approach and more
and more coastal States refuse disembarkation to avoid irregular migration and the
costs of resettling boat people. The MV Tampa case is an excellent example of this
policy, that has been followed in other cases, also in the fishing sector. In 2006, the
crew of the Spanish-flagged fishing vessel Francisco y Catalina spotted on international waters a small fishing boat in distress whose 51 passengers had run out of gas
and food two days ago.
8 The vessel had communication problems and was unable to
reach the closest State authorities, those of Malta, thereby the crew rescued the
migrants, including one woman and her child. While heading towards La Valetta, the
ship was halted by the Maltese Coast Guard and made to wait at high seas as
diplomatic negotiations unravelled to decide migrants’ final destination. A similar
3 See Article 98(1) of UNCLOS; Chapter V, Regulations 10a and 33(1) of SOLAS; Article 10(1) of
the Salvage Convention.
4 UNCLOS and Chapter V, Regulation 7(1) of SOLAS; Articles 10(1) of the Salvage Convention.
5 See Chapter 2.4.1 of SAR.
6 Chapter V, Regulation 33 of SOLAS.
7 Chapter 1.3.2 and 2.1.2 of SAR.
8 This case was brought to the cinema by the documentary film ‘Malta Radio’ directed by Manuel
Menchón and released in 2009.
80
L. Carballo Piñeiro
Assistance to anyone in distress at sea is a rule of the sea that goes back further in
time. Humanitarian at its core, all ships are obliged by it and all people in distress
benefit from it, as enshrined in the United Nations Convention on the Law of the Sea
(UNCLOS), the International Convention for the Safety of Life at Sea (SOLAS), the
International Convention of Maritime Search and Rescue (SAR) and the International Convention on Salvage (the Salvage Convention).
More specifically, the ship’s master is obliged to render assistance to anyone in
danger of being lost with all possible and reasonably expected speed as long as the
rescue operation does not involve serious danger to the ship, the crew or the
passengers.
3 For its part, coastal States are obliged to promote the establishment,
operation and maintenance of search and rescue services,
4 helping those at sea
regardless of nationality.
5 The search-and-rescue operation may involve a
non-rescue vessel, public or private, to respond to the distress call if a rescue unit
is not available in the area, and authorities might go as far as requisition of a private
vessel in the vicinity.
6 Coastal States are also under the obligation of providing for
the disembarkation of rescued people at a place of safety, whenever a commercial
ship has provided assistance.
7 Generally speaking, this rule seeks to benefit rescued
people as much as the commercial ship engaged in the rescue operation to the extent
that it may then proceed with minimum further deviation and thus economic losses.
Tradition has established that disembarkation is meant to happen at the next port
of call and this State will be in charge of returning the rescued person to his or her
country of origin taking advantage of diplomatic or consular channels. However, the
increase in migratory flows has seriously affected this traditional approach and more
and more coastal States refuse disembarkation to avoid irregular migration and the
costs of resettling boat people. The MV Tampa case is an excellent example of this
policy, that has been followed in other cases, also in the fishing sector. In 2006, the
crew of the Spanish-flagged fishing vessel Francisco y Catalina spotted on international waters a small fishing boat in distress whose 51 passengers had run out of gas
and food two days ago.
8 The vessel had communication problems and was unable to
reach the closest State authorities, those of Malta, thereby the crew rescued the
migrants, including one woman and her child. While heading towards La Valetta, the
ship was halted by the Maltese Coast Guard and made to wait at high seas as
diplomatic negotiations unravelled to decide migrants’ final destination. A similar
3 See Article 98(1) of UNCLOS; Chapter V, Regulations 10a and 33(1) of SOLAS; Article 10(1) of
the Salvage Convention.
4 UNCLOS and Chapter V, Regulation 7(1) of SOLAS; Articles 10(1) of the Salvage Convention.
5 See Chapter 2.4.1 of SAR.
6 Chapter V, Regulation 33 of SOLAS.
7 Chapter 1.3.2 and 2.1.2 of SAR.
8 This case was brought to the cinema by the documentary film ‘Malta Radio’ directed by Manuel
Menchón and released in 2009.
80
L. Carballo Piñeiro