Reflections on the Maersk Etienne Standoff and its Ramifications for the Duty to Render Assistance at Sea

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The duty to render assistance at sea is a long-established rule of international law. The genesis of this obligation lies in the overwhelming need to protect life at sea. In recent years, the duty has had to respond to challenges posed by the phenomenon of irregular mass migration by sea. The sheer magnitude of the problem has placed considerable pressures on commercial shipping as evidenced by the recent Maersk Etienne saga. This note assesses the legal regime regulating the duty to render assistance in light of contemporary challenges associated with large-scale irregular migrant rescue operations. It addresses the contentious issue of disembarkation and examines the potential responsibility of States embroiled in the Maersk Etienne case. It is argued that the lack of international cooperation in providing a place for disembarkation has serious practical, legal, and commercial ramifications for the shipping industry which may have detrimental repercussions on the duty to render assistance at sea.

The Maersk Etienne Rescue

On 4 August, the shipmaster of the Maersk Etienne, a Danish-flagged oil tanker, was reportedly instructed by the Maltese rescue co-ordination centre to attend to a small fishing vessel in distress off the coast of Tunisia in the Gulf of Gabes. The ship was diverted off its commercial route, while its shipmaster and crew rescued 27 migrants including a pregnant woman and a child. The shipmaster proceeded towards Malta where it was denied entry into port and remained anchored outside the Island’s contiguous zone. A historic 38-day standoff ensued with States involved, Denmark, Tunisia, and Malta refusing to accept responsibility for the migrants. Conditions began to deteriorate quickly with food and water supplies diminishing. Tensions and frustrations on board escalated leading to desperate migrants to jump into the sea. On 11 September, the migrants were transferred to an NGO operated vessel the Mare Jonio and finally disembarked in Pozzallo on the 13 September.

The plight of the shipmaster and crew of the Maersk Etienne bring back memories of the 2001 MV Tampa case, which led to the amendment of the relevant International Maritime Organization (IMO) treaties discussed below. Rescues effected by merchant vessels present various challenges. These types of vessels are generally not designed or equipped to undertake large-scale rescue operations. The crew, which is often outnumbered by the rescuees, is neither physically nor psychologically trained to carry out these types of operations. States are often reluctant to provide a place for disembarkation, a problem, which as discussed elsewhere, has become more pronounced in the COVID-19 pandemic. As seen in the Maersk Etienne case, political, economic, and sanitary circumstances may result in a vessel being stranded out at sea for long periods of time with vulnerable individuals onboard, with the possibility of security threats posed to the vessel and crew. The delay can be costly for shipowners and other interested third parties (see below). These problems may be further complicated by the need to safeguard the fundamental human rights of persons on board, some of whom may be asylum-seekers and therefore entitled to additional protections under refugee law.

The Legal Regime Regulating the Duty to Render Assistance at Sea

The duty to render assistance at sea under international law is primarily regulated by Article 98 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The regime found in the Convention is supplemented by other rules found in IMO treaties: the 1974 International Convention for the Safety of Life at Sea (1974 SOLAS), and the 1979 International Convention on Maritime Search and Rescue (1979 SAR). State practice demonstrates that the major rules regulating the duty under these conventions, which have been implemented and enforced through municipal laws, reflect customary international law. Accompanying these norms is also a body of soft law developed by IMO in collaboration with other organizations, including the International Chamber of Shipping (ICS) and the United Nations High Commissioner for Refugees. These instruments provide the shipmaster and crew with practical guidance concerning the implementation of the duty, particularly in large-scale rescue operations involving irregular migrants.

Article 98(1)(a) of UNCLOS provides that every flag State shall require the master of a ship flying its flag, “to render assistance to any person found at sea in danger of being lost”. Such assistance can range from the provision of navigational aids or fuel for the vessel to escorting the ship for part of its journey. Assistance may also extend to rescue. Under Article 98(1)(b) the shipmaster is required “to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him.” In both cases, the duty is qualified in so far as the shipmaster can provide assistance “…without serious danger to the ship, the crew or the passengers.” UNCLOS does not however provide a measure for the seriousness of the danger to his vessel, crew or passengers and the matter appears to be left solely to the discretion of the shipmaster. In this respect, it is expected that the shipmaster exercises his professional judgment taking account the circumstances of each rescue operation. The obligation of the shipmaster to render assistance is complemented by the duty of the coastal State to promote effective search and rescue (SAR) services under Article 98(2) of UNCLOS.

The rules regulating the duty to render assistance in UNCLOS discussed above are supplemented by provisions found in the 1979 SAR and 1974 SOLAS Conventions (1974 SOLAS, Annex, Chapter V, Regulation 33-1 and 1979 SAR, Annex, Chapter 2, para 2.1.10). This note will focus on rules of the 1979 SAR Convention which are particularly relevant to the case. The 1979 SAR Convention imposes detailed SAR obligations which include inter alia the establishment of rescue co-ordination centres (1979 SAR, Annex, Chapter 2) and the provision of rescue vessels, aircraft and personnel or equipment (1979 SAR, Annex, Chapter 3, para 3.1.6(4)). Under the Convention, States are responsible for delimited SAR regions (SRRs) (1979 SAR, Annex, Chapter 2, para.2.1.3) within which SAR services should be provided (1979 SAR, Annex, Chapter 2, para. 2.1.9).

A significant development, responding to the above-mentioned MV Tampa incident, were the 2004 Amendments to the 1974 SOLAS and 1979 SAR designed to reduce the burden on shipmasters and crew of commercial vessels in rescue at sea operations. The rules found therein require State parties to:

….co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships’ intended voyage…The Party responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and cooperation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety…In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably practicable (1979 SAR, Annex, Chapter 3, para 3.1.9).

The raison d’être behind the 2004 Amendments appears to be the need to reinforce cooperation between States to support shipmasters and crew in their efforts to render assistance. In this respect, all State parties, not solely the SAR State where the distress situation occurs are required to ensure that the shipmaster, after having rescued persons, is not burdened with unnecessary deviations and delays. A stricter obligation falls on State parties responsible for the SRR where the assistance is rendered. These States have a ‘primary responsibility’ to ensure that cooperation occurs so that persons rescued in its SRR are disembarked to a place of safety within a reasonable time. However, the precise legal meaning of the phrase ‘primary responsibility’ remains controversial. State practice is divided mainly in two schools of thought regarding the obligation to allow disembarkation. This first holds that the 2004 Amendments impose a ‘residual obligation’ on the SAR State to allow disembarkation into its own territory, which would only come into effect when all efforts to find a place of safety in another State have failed. The second finds this interpretation to be inconsistent with customary international law and argues that it is the State with the closest safe port from the location of rescue that must accept the disembarkation of rescuees. As discussed elsewhere, these opposing positions have led to numerous disputes amongst States in the Mediterranean, particularly between Italy and Malta.

The Question of Disembarkation of Rescued Persons under International Law and the Responsibility of States in the Maersk Etienne Case

Whilst an impressive body of rules have been developed to regulate the duty to render assistance at sea, the question of State responsibility for the disembarkation of rescued persons, as indicated above, remains a controversial and unresolved issue. As exemplified by the Maersk Etienne incident, the lack of agreement on the port of disembarkation places heavy burdens on the shipmaster and crew who remain dependent on the political will of States. The next part of this note will examine to what extent, if at all, where Tunisia, Denmark and Malta (all of which are parties to the UNCLOS, 1974 SOLAS and 1979 SAR) responsible for receiving the rescued migrants in this case. 

Tunisia’s Obligations as the SAR State and the Closest Place of Safety

The site of rescue conducted by Maersk Etienne in the Gulf of Gabes was located in Tunisia’s SRR. As the responsible SAR State, Tunisia was obliged to take the lead in coordinating the rescue. Furthermore, Tunisia was also required to undertake meaningful efforts to find a place of safety, and if this was not viable, possibly arrange for disembarkation of the migrants in its own territory. This argument for Tunisia to accept disembarkation is strengthened by its position as the closest place of safety at the time of the rescue. Therefore, irrespective of which school of thought on disembarkation is applied, Tunisia’s obligation to accept disembarkation is reflected in its dual role as the SAR State and the State providing the closest safe port. According to the Maersk, it was Malta who conducted the rescue operation.

Denmark and Flag State Responsibility 

Article 94 of UNCLOS provides that the flag State should “exercise its jurisdiction and control in the administrative, technical and social matters” over its registered vessels. Various Mediterranean States, including Malta and Italy, have argued that flag State responsibility extends over migrants rescued by its vessels on the high seas. In their view, flag States thus have an obligation to receive rescuees in their territory and process any asylum-claims. The possibility of flag State responsibility for accepting the disembarkation of migrants may be feasible if the vessel in question is close to the location of the flag State territory. If not, it would be unreasonable to expect the shipmaster to sail long distances and carrying large groups of vulnerable people. In such cases, it may be more appropriate for the flag State to seek assistance from the SAR State or another State close to the rescue site. In fact, in the Maesrk Etienne case, Denmark requested Tunisia to accept responsibility for the migrants on these grounds.

The vast majority of commercial vessels are generally registered in non-EU members such as Panama, the Marshall Islands, and Liberia. These States often lack the competence or resources to offer effective assistance to the shipmaster in such situations. An interesting dimension of the Maersk Etienne incident is the status of the flag State in this case. Denmark is a European Union (EU) member State. Consequently, it is bound by policies, in light of EU solidarity, to collectively manage irregular migratory flows. It should be recalled that during the 1970s Indochinese crisis, the international community adopted a system whereby coastal States permitted disembarkation of rescued migrants if the flag State of the rescuing vessel would take responsibility for resettling asylum seekers (see UN Doc A/34/637 paras 34-35) This approach appears to be mirrored in past ad hoc EU agreements concerning the relocation of migrants rescued within the Mediterranean. Unfortunately, this avenue of cooperation appears to have been excluded in the Maersk Etienne case, possibly due to problems of the COVID-19 crisis. In addition, Denmark is a party to the European Convention on Human Rights and therefore has additional human rights obligations imposed by the Convention and its protocols, which other flag States such as those mentioned above, may not have. 

Malta and its Obligations under the 1979 SAR

As noted above, after taking the migrants on board, the shipmaster proceeded towards Malta. It is not entirely clear what motivated his decision to do so. If it could be considered that Malta coordinated the rescue operation, the shipmaster may have been encouraged to contemplate Malta’s cooperation in disembarkation in accordance with its obligations under the 1979 SAR and as an EU member.

Under the 1979 SAR, States are required to foster cooperation and whenever necessary co-ordinate search and rescue operation with those of neighbouring States (1979 SAR, Annex, Chapter 2, para 2.1.1 and Chapter 3, para 3.1.1). In this respect, Malta in alerting Maersk Etienne shipmaster to assist was fulfilling its obligations under the 1979 SAR. However Malta, a persistent objector to the 2004 Amendments (see pages 40 and 427 here), did not have a responsibility to ‘arrange for such disembarkation to be effected as soon as reasonably practicable’. Furthermore, the Island was not the closest place of safety at the time of the rescue, and therefore may not be compelled to accept disembarkation in line with the closest safe port doctrine discussed above. Other considerations may play a role in compelling a State to accept disembarkation, for example, humanitarian considerations or a security or safety incident which poses a serious danger to the ship, the crew or passengers. However, much will depend on the circumstances of the case. For example, in August, it was reported that the European Court of Human Rights in examining the Maersk Etienne case dismissed a request for interim measures compelling Malta to accept disembarkation. The Court found that Malta’s decision did not place the migrants at risk of inhuman treatment and therefore, the safety of these individuals was not threatened.

Commercial Impact and the Implications for Rescue Compliance

Although the international community has applauded merchant seafarers for their heroic rescue contributions and also recognized the enhanced risks of using commercial vessels for large scale rescues, the commercial costs of such rescues are frequently overlooked. While these costs should never inform a shipmaster’s decision whether to comply with the obligation to rescue, they nonetheless remain a real consequence with critical practical implications. Much of these commercial costs flow not from the direct care provided by crew, but rather the diversions and delays to the primary voyage exacerbated by unpredictable disembarkation. Commercial delays in response to rescues routinely cause losses running in the hundreds of thousands of US dollars, even if disembarkation is swiftly arranged. As States have failed to achieve a systematic and consistent disembarkation policy in the Mediterranean region in recent years, this has threatened to increase the risks, costs, and frequency of merchant vessel contributions to migrant rescues. The Maersk Etienne standoff illustrates this threat coming to alarming fruition.

Insurance may cover some of the costs of rescue-related delays. Protection and indemnity insurers known as P&I clubs are non-profit mutual insurance organizations designed to cover a range of risks not traditionally covered by a vessel’s hull and machinery policy. The specific cover is articulated by the P&I club rules published by the club in which the vessel is enrolled. It has been reported that the Maersk Etienne is enrolled as a member of the Norwegian P&I club Gard. The Gard P&I Club Rules contain a provision under Rule 31 that allows cover for the extra costs of fuel, port charges, wages and provisions for the crew, “attributable to a diversion…for the purpose of saving persons at sea.” Rule 32 also explicitly identifies cover for other rescue-related liabilities, such as “costs and expenses directly and reasonably incurred in the consequence of the Ship having…refugees or persons saved at sea on board…” Rule 32, however, also highlights that “cover does not include consequential loss of profit or depreciation.”

P&I clubs, including Gard, have also regularly issued guidance in recent years explaining the limits of cover for rescue-related delays. These insurers have noted that much of the liability for delays will depend on the terms of the underlying contracts, including charterparties, which often articulate the rights and obligations between the participating commercial shipping interests, such as the shipowner and the charterer. Charterparties are negotiated on highly standardized forms promulgated by industry organizations, such as BIMCO and INTERTANKO. An examination of these contracts reveals that they are generally silent on the question of who bears the risk of rescue-related delays—in particular whether a charterer must continue to pay the shipowner the agreed rate of “hire” (if time charter) or “freight” (if voyage charter) during the period of delay. For large tankers, hire or freight routinely costs tens of thousands of US dollars per day, sometimes more depending on market conditions. To prepare for the eventuality of rescue-related delays, shipping industry participants may adopt a bespoke “rider” clause designed to address this possible commercial fallout. A “Refugee Clause” for charterparties can fulfill this role so that the risks of the delays are clearly allocated between the shipowner and charterer at the outset of commercial voyages, reducing uncertainty that might otherwise lead to the litigation on the issue as we have seen previously during periods of mass migration by sea.

However, it has been reported that the Maersk Etienne is actually owned and managed by Maersk Product Tankers AS and Maersk Tankers AS, which are Danish companies controlled by the owners of shipping behemoth AP Moller-Maersk AS. For this reason, there might not be an imminent charterparty dispute in this particular case. The more likely dispute caused by the delay would be between the Maersk companies operating as a carrier for any potential cargo owners. If so, the relevant contract of carriage could be the terms and conditions evidenced by a bill of lading or similar document issued by Maersk back to the cargo owner. If we examine the standard Maersk Terms of Carriage that typically bind Maersk customers, we find in Clause 19 a liberty to diverge from the contractual voyage for “assisting other vessels” and “disembarking any person(s).” This language mirrors liberties to deviate for life-saving purposes reflected in international conventions applicable to bills of lading, such as the Hague Rules, Hague-Visby Rules, Hamburg Rules, and Rotterdam Rules. For these reasons, Maersk would actually be on solid legal footing vis-à-vis a cargo owner initiating a claim regarding the delay.

Interestingly, however, it has been reported that the Maersk Etienne fortuitously was not carrying any cargo at the time of the rescue. While this happily negates Maresk’s exposure to cargo delay claims that often arise out of commercial vessel rescues, Maersk must still absorb losses in opportunity costs as the Maersk Etienne was unable to move any cargo for 38 days. While Maersk has not disclosed the costs of having the ship out of service for such a long period, with the capacity to move over 37,000 deadweight tons of petroleum or chemical products, this disembarkation standoff no doubt generated an enormous economic loss, most of which would not be covered by insurance.

These commercial repercussions are significant not only as evidence of economic knock-on effects arising out of the disembarkation controversy, but also because the costs of rescues are likely to disincentivize shipmaster compliance with the duty to rescue. While Maersk affiliates and other large commercial entities may be able to absorb even extensive rescue-related delays, smaller shipping companies or those employing vessels under expensive time or voyage charters are less likely to be able to bear such losses. Maersk representatives have concurred with shipping organizations such as the ICS that merchant seafarers will continue to honour their obligations and respond to calls for assistance, but there have also been allegations that some commercial shipmasters in the Mediterranean region are now actively avoiding getting involved in migrant rescues. These allegations contend that vessel operators are “going dark” by deactivating Automatic Identification Systems (AIS) that relay vessel positions. This conduct in itself could be a violation of 1974 SOLAS and other international legal instruments requiring shipping transparency to prevent collisions. But these tactics, if true, appear to be motivated at least in part as a response to the increased risks and costs flowing from State actors abandoning their international legal responsibility to quickly determine a safe place of disembarkation.

Conclusions

Whilst the incident was fortunately concluded by the generosity of Italy to accept the migrants, the procrastination in finding a safe port for disembarkation placed undue pressures and burdens on the shipmaster and crew of Maesrk Etienne after having fulfilled their obligations under international law. It may be justified to conclude that despite all the admiral developments referred to above, the situation of the shipmaster and crew in such circumstances has not improved. In the MV Tampa incident, it took 8 days to disembark the migrants from the vessel, whilst in case of the Maersk Etienne 38 days. This does not augur well for the implementation of the duty to render assistance. Irrespective of the rec-commitments to regional solidarity expressed in the EU’s New Pact on Migration and Asylum, industry participants are expressing concern that Maersk Etienne standoff is unlikely to be the last of its kind. As the COVID-19 pandemic has mobilized States to more carefully scrutinize immigration policy, this has already placed an immense burden on merchant seafarers unable to process crew changes. There is now also a growing sense that delays like the Maersk Etienne experienced are likely to happen again, unless state actors finally achieve a durable political solution to this recurring disembarkation dilemma.

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