18 Mar Migrant crisis
Global Opportunity 2015 | DWF
The migrant rescue issues are probably some of the most complex and worrying for decades, says Jonathan Moss. Head of Transport Sector, DWF
Since the crisis in the Mediterranean began to escalate at the start of 2014, over 1,000 merchant ships have so far been involved in migrant rescue operations, assisting with the rescue of more than 50,000 people.
More than 750,000 migrants have arrived in Europe by sea thus far this year, not including those passing through borders undetected, and numbers are expected to increase further (1).
When this is compared to the number of migrants at EU boarders in 2014, at 280,000 (2), it is no wonder that there has been such a large impact and effect on vessels at sea.
The 1982 United Nations Convention stipulates that any vessel deemed able to is obliged to provide assistance to vessels in distress, regardless of nationality, cargo or route. Cargo ships are often the first to respond, and often have to divert their journey to take on board any migrants in trouble.
There is a major concern for the seafarers and shipping companies involved as merchant ships are usually ill-equipped for such large scale humanitarian responses.
According to the International Organization for Migration (“IOM”) 3,406 individuals have died in the Mediterranean in 2015. While efforts continue at a political level to reduce the number migrants seeking to travel by sea in unseaworthy craft, the industry is faced with the increasingly frequent need to conduct large scale rescues.
There is a sense that the Shipping Industry will continue to pressure governments to do more to meet their obligations during this crisis and will make no apology for doing so.
What this means for the Industry
Shipping companies are being faced with added costs owing to their obligations to rescue migrants at sea. This means that adequate insurance cover may be hard to find. Insurance premiums will rise and shipping companies may have to alter their routes at additional expense.
Taking part in a rescue operation also means delays that can prove costly for merchant ships on tight schedules. With commercial vessels playing their part in the humanitarian crisis, there is likely to be an impact on trade with the Shipping Industry facing a hit to its profits.
One of the most significant concerns for a vessel instructed to complete a search and rescue mission will likely be the cost and expense of the diversion of the ship to rescue, and thereafter land, the migrants.
There is a view that the smugglers who often force migrants out to sea in unseaworthy boats are deliberately targeting ships. Experts believe that those responsible know that ships will be bound to try and rescue migrants, so they send their victims sailing off with rescue as the only option.
As the Mediterranean migrant crisis mounts, some believe that only those commercial ships operating with security personnel onboard should assist in rescuing seaborne migrants and ship safety and security must remain the number one priority (3).
With additional measures and requirements being placed on ships, shipping companies’ costs will have already started escalating.
The Insurance Position
However the issue of whether merchant ships are insured to carry migrants is an increasing grey area. There are worries ships are not compensated for helping in rescues or they will be fined for arriving late at port with any deliveries, as well as being at risk of being in breach of their safety certificates by taking on board more passengers than have been legally agreed upon.
Similar grey areas are found regarding where liability would fall if migrants should die or be injured while being rescued by a ship’s crew (4).
Bound by the laws of the sea to help vessels in distress, shipping companies say Europe’s migration crisis has placed unreasonable demands on their crews to act as lifesavers in the Mediterranean.
It seems many rescues under the 1982 United Nations Convention on the Law of the Sea go uncompensated and insurance industry professionals are now casting doubt on whether certain policies on the ship extend coverage to the rescue of migrants and others in distress (5).
Insurers already have the consequential issues caused by rescues at sea within their contemplation, and it is the variations within individual insurance agreements on liability and marine policies that will determine whether ships are covered for the people they actually rescue.
Last October the Campbell Shipping fleet ship received a call from the Maritime Rescue Centre in Malta requesting it divert immediately and go to the aid of a boat in distress that was carrying 300 to 400 people (6). Their schedule was delayed by four days and the shipping company was penalised by its insurer following a successful claim for the clean-up of the ship.
The money was reimbursed but as a deductible and it was mentioned on their claim record. The ship’s captain however has said the insurer is looking positively on the matter and he is hopeful the decision will be reversed.
The key reason for the insurance claim was the post-rescue ship clean-up effort, which had left a hazardous mess. The ship had to be cleaned and fumigated and medical checks were required for the crew. The ship also had to claim for the cost of calling at more than one port and for the pilotage.
Shipping has faced many challenges, but the migrant rescue issues are probably some of the most complex and worrying for decades, perhaps even more so than piracy. With seafarers facing life threatening decisions, death, chaos, security and safety issues the problems of irregular migration have come to the fore.
All too often merchant ships are diverted to help in large-scale rescue operations they are not properly equipped to handle safely. Governments are still relying on the moral and legal obligations of ships and their crew to cope with a migration movement of an unprecedented scale.
Seafarers are often risking their own safety and security in these large scale rescues. They are also face situations for which they may require long term support such as recovering bodies and dealing with the very sick or injured, and who will pay for this?
It should be accepted that if a commercial vessel has to aid a vessel in distress with migrants on board and if it is morally the right thing to do and required under national conventions, then the vessels should not be financially burdened in doing so and the Shipping Industry should not be penalised.
- With thanks to Jamie Hoffman, Solicitor, for providing additional research