in SAR operations has been constant in a time where NGOs were still operating at
high seas. Now, that they are forced to withdraw from the Mediterranean Seas
because of State pressure, the involvement of merchant ships and fishing vessels
might increase. Yet, they also face the problem of disembarkation as the case of the
Alexander Maersk cargo ship illustrates (ECSA 2018). After the rescue of over
100 migrants, the 16 crew members were left to assist them for seven days until
finally Italy accepted their disembarkation.
If the topic is approached from a business perspective, the non-compliance with
the law of the sea by coastal States causes enormous financial problems. Delays
incurred in rescuing people are not compensated under the Salvage Convention that
focuses on the salvage of property (Fakhry 2016), and neither requires remuneration
from persons whose lives are saved, nor from responsible States, leaving the issue to
be decided by national law.
28 Insurance may help in recovering extra cost of
bunkers, insurance, wages, stores, provisions and port charges (Stevens 2016) and
deviations to save people may not imply a breach of contract.
29 However, these
provisions have been made on the assumption of immediate disembarkation keeping
delays in business at a minimum, i.e. loss of profit is not covered by insurance.
Moreover, the Salvage Convention explicitly exonerates the shipowner from
liability in the event of a breach of the master’s duty to render assistance to any
person in danger of being lost at sea.
30 Hence, masters might be put under pressure to
comply with either the law of the sea or their obligations as regards to the ship
operation, and there will not be further consequences for shipowners if they opt for
the second option. In contrast, if they honour their rescue obligations, they not only
might encounter problems with their employer, but also risk to be criminalized as
human smugglers or traffickers. And yet, despite the acute conflicts of interests and
the subsequent psychological risks involved in this type of operations, and as
indicated by the UN Security Council (2018), “In the first six months of 2018,
merchant ships rescued 1329 people. Merchant seafarers continue to bravely perform their duties of rescue, although the presence of untrained and distressed persons
on board presents risks to both the seafarers and those they rescue”.
More specifically, the rescue of a large number of people poses issues of safety,
security and health for seafarers and fishermen. The International Safety Management (ISM) Code deals with the rescue itself whose operation is addressed in the
vessel’s Safety Management System (SMS) within the Emergency procedures
manual. However, the rescue of a large number of people at sea is not specifically
contemplated in the SMS. As it is not in the Ship’s Security Plan (SSP) which is
binding for ships in international trade in accordance with the International Ship and
Port Facility Security (ISPS) Code. Crewmembers lack the specific training to deal
with the maritime migration challenge.
28 Art. 16(1) of the Salvage Convention.
29 Art. 4 of the Hague-Visby Rules.
30 Art. 10(2) of the Salvage Convention.
Occupational Hazards in the Light of the Maritime Migration Challenge
89
high seas. Now, that they are forced to withdraw from the Mediterranean Seas
because of State pressure, the involvement of merchant ships and fishing vessels
might increase. Yet, they also face the problem of disembarkation as the case of the
Alexander Maersk cargo ship illustrates (ECSA 2018). After the rescue of over
100 migrants, the 16 crew members were left to assist them for seven days until
finally Italy accepted their disembarkation.
If the topic is approached from a business perspective, the non-compliance with
the law of the sea by coastal States causes enormous financial problems. Delays
incurred in rescuing people are not compensated under the Salvage Convention that
focuses on the salvage of property (Fakhry 2016), and neither requires remuneration
from persons whose lives are saved, nor from responsible States, leaving the issue to
be decided by national law.
28 Insurance may help in recovering extra cost of
bunkers, insurance, wages, stores, provisions and port charges (Stevens 2016) and
deviations to save people may not imply a breach of contract.
29 However, these
provisions have been made on the assumption of immediate disembarkation keeping
delays in business at a minimum, i.e. loss of profit is not covered by insurance.
Moreover, the Salvage Convention explicitly exonerates the shipowner from
liability in the event of a breach of the master’s duty to render assistance to any
person in danger of being lost at sea.
30 Hence, masters might be put under pressure to
comply with either the law of the sea or their obligations as regards to the ship
operation, and there will not be further consequences for shipowners if they opt for
the second option. In contrast, if they honour their rescue obligations, they not only
might encounter problems with their employer, but also risk to be criminalized as
human smugglers or traffickers. And yet, despite the acute conflicts of interests and
the subsequent psychological risks involved in this type of operations, and as
indicated by the UN Security Council (2018), “In the first six months of 2018,
merchant ships rescued 1329 people. Merchant seafarers continue to bravely perform their duties of rescue, although the presence of untrained and distressed persons
on board presents risks to both the seafarers and those they rescue”.
More specifically, the rescue of a large number of people poses issues of safety,
security and health for seafarers and fishermen. The International Safety Management (ISM) Code deals with the rescue itself whose operation is addressed in the
vessel’s Safety Management System (SMS) within the Emergency procedures
manual. However, the rescue of a large number of people at sea is not specifically
contemplated in the SMS. As it is not in the Ship’s Security Plan (SSP) which is
binding for ships in international trade in accordance with the International Ship and
Port Facility Security (ISPS) Code. Crewmembers lack the specific training to deal
with the maritime migration challenge.
28 Art. 16(1) of the Salvage Convention.
29 Art. 4 of the Hague-Visby Rules.
30 Art. 10(2) of the Salvage Convention.
Occupational Hazards in the Light of the Maritime Migration Challenge
89