WHO’S
ON BOARD? SECURITY CONCERNS RENEW FOCUS ON STOWAWAYS
(Published October 2004)
 |
| The age-old problem of stowaways presents economic implications and toll on human life which cannot be underestimated. |
Refugees attempting to escape war or religious persecution. Migrants looking to raise their standard of living. Political asylum seekers in search of relief from oppression. Illegal immigrants hoping to enter a country undetected. Criminals who may be involved with drug trafficking or other illegal activities. Whatever their motivation, stowaways are a major international problem. With the heightened awareness on international port security in the aftermath of the terrorist attacks of September 11, 2001, attention has once again been directed to the age-old issue of stowaways. Various landmark pieces of legislation and maritime policy, such as the Maritime Transportation Security Act of 2002 (“MTSA 2002”) and the International Maritime Organization’s (“IMO”) International Ship and Port Facility Security Code (“ISPS Code”) direct shippers, ports and governments to conduct extensive security audits of their practices and to develop and implement comprehensive plans designed to enhance international security and protect the safety and integrity of maritime commerce.
Stowaways pose significant safety, economic, and insurance issues to maritime commerce. The ISPS Code was specifically addressed in the October 2003 issue of Cruise & Carrier Legal Update. This article summarizes the practical operational, legal and insurance issues stowaways pose to shippers and ports in the wake of post-9/11 maritime policy and legislation.
Who Are Stowaways?
The
IMO defines a stowaway as, “a person who is secreted on a ship, or in
cargo which is subsequently loaded on the ship, without the consent of the
shipowner or the master or by any other responsible person and who is detected
on board after the ship has sailed, and is declared as a stowaway by the master
to the appropriate authorities.” In its most basic sense, the term “stowaway” refers
to any person found on board a ship without authorization. The initial status
of a stowaway is usually unclear. The incidences of stowaways is naturally
greater in ships that call on ports in areas of political unrest or severe
economic hardship. However, not all stowaways are in search of a better life
elsewhere. On board the vessel, it is difficult to ascertain whether a stowaway
is a refugee, an asylum seeker, an illegal immigrant or a criminal. It is also
unclear what a stowaway’s status is in relation to the Safety of Life
at Sea Convention (“SOLAS”).
Stowaways who are political refugees often seek to escape war, unrest or religious or political persecution. Stowaways who are economic refugees may simply be searching for a better standard of living elsewhere. Such persons are often illegal immigrants attempting to enter another country undetected. Whether motivated for political or economic concerns, the common denominator of such stowaways is opportunity and a lack of immigration or other documentation. A closely related group of stowaways are persons seeking political asylum. These persons may also be political, religious or economic refugees. Persons seeking political asylum frequently attempt to conceal their identity and national origin or attempt to adopt the nationality of an area where there is significant conflict or social unrest. The incidences of asylum-seeking stowaways are naturally greater in ports and jurisdictions where asylum is more likely to be granted.
Most troublesome and dangerous are those stowaways of the criminal element. Such persons can range from persons trafficking in illegal drugs to international terrorists. Drug smuggling remains the most prevalent crime affecting maritime security. Recognition of the problem, and cooperation and communication between governments, ports and the shipping industry are imperative. Strict access to port facilities, containers and ships is essential.
Ship Obligations
The IMO adopted new standards and recommended practices for dealing with stowaways which were adopted as amendments to the Convention on the Facilitation of International Maritime Traffic (“FAL” Convention). In the wake of September 11th and the Maritime Transportation Security Act of 2002, the United States Coast Guard deems the presence of stowaways aboard a vessel to be a potential security threat. The Coast Guard requires that “[m]asters of all vessels confirm before entry into territorial waters of the U.S., that there are no individuals on board other than those listed in the Advance Notice of Arrival. Should stowaways be discovered aboard any vessel, the stowaways must be detained on board and properly cared for until the proper authorities take the individuals into custody.”
The master should make every effort to determine immediately the port of embarkation of the stowaway and to make every effort to establish the identity, including the nationality/citizenship of the stowaway. The master should prepare a statement containing all information relevant to the stowaway in accordance with IMO guidelines. For example, the master should attempt to ascertain and memorialize the date and time the stowaway was found on board, the country of boarding, how long the stowaway spent in the country of boarding and how long the stowaway has been on board. In addition to the identity and nationality of the stowaway, the master should record identifying characteristics of the stowaway. The master should also attempt to ascertain the intended destination of the stowaway. The master should be prepared to give this information to the appropriate authorities. The master should immediately notify the shipowner and the P&I Club. Finally, the master should not deviate from the intended voyage to seek disembarkation of the stowaway unless repatriation has been arranged with adequate permission and documentation, or unless there are extenuating security or health or compassionate reasons.
Port Implications
Ports the world over are faced with security issues such as the smuggling of contraband, theft and terrorist threats. While vessel operators are responsible for the costs of repatriating stowaways and may be subject to immigration fines, the discovery of stowaways while vessels are in port can result in disruption of cargo services and expensive delays. Lest anyone trivialize the matter, one American-flagged liner estimated the repatriation costs of handling five European stowaways to be in the neighborhood of $100,000! Such issues have a tremendous economic impact and reduce competitiveness. Taking measures to deal with stowaways will reduce such threats. Governmental and industry measures designed to reduce threats to port security have attendant costs and obligations.
Under the FAL Convention, port authorities are required to cooperate with shipowners and public authorities to prevent stowaway incidents. Among other things, ports are directed to conduct regular patrols of facilities. Ports are further directed to create special storage facilities for cargo particularly susceptible to stowaway access, and to provide continuous monitoring of persons and cargo entering such areas.
The new security measures of the ISPS Code came into force in July 2004. The ISPS Code is designed to provide a consistent, standardized framework for evaluating and guarding against security risks. Each Contracting Government will be required to conduct port security assessments. These security assessments will have three fundamental components. First, port facilities must implement Port Security Plans. Second, port facilities must designate a Port Security Officer. Third, the port facility must employ certain security equipment. Ports will be required to verify a vessel’s International Ship Security Certificate (“ISSC”). The ISSC will be accepted as valid unless there are clear grounds that the vessel is not in compliance with the ISPS Code. Ports will also be required to control access to restricted areas and ensure supervision of cargo loading. Additionally, the Coast Guard has developed a concept of operation for an International Port Security Program. This program seeks to increase port security by facilitating a sharing and coordination of port security practices.
As a practical matter, port facilities in countries not party to the SOLAS or the ISPS Code, or where the government has yet to implement the ISPS Code, could raise cost or security issues. Charterers could incur liability under implied indemnity in shipping to and from such ports. In cases where a ship and port have different security levels, a Declaration of Security may be required as detailed in Part B, paragraph 5, of the ISPS Code.
Port security measures designed to combat the stowaway problem must be sufficiently effective to deter stowaways, yet not be so intrusive as to hinder the smooth flow of cargo to and from ports. Inspections of arriving passenger and cargo ships, as well as port facilities, must be sufficiently effective to prevent or detect stowaways without hindering the smooth flow of passengers and cargo to and from port areas. The logistics of modern container shipping and trade are such that undue delays caused by stowaways and the contraband they may seek to smuggle can have a ripple effect on maritime commerce worldwide.
Steps for Prevention
The most obvious and fundamental step to prevent or minimize the incidence of stowaways aboard vessels is an effective system of access control. Standards and recommended practices for dealing with stowaways have been adopted as amendments to the FAL. Passenger ships are specifically exempted from amendments to the FAL Convention. Ships calling at or originating from high-risk ports are to be thoroughly searched for stowaways, and measures to prevent stowaways from secreting themselves aboard are to be tightened. Shipowners and masters should strictly control the means by which access to a vessel is gained. All doors and means of access to holds or stores which are not in use during calls in port should be sealed and secured. Access points to the vessel should be kept to a minimum and adequately secured. Ships should have adequate on-board security practices in place. This can include adequate deck watch, permanently manning and monitoring areas of access, such as accommodation ladders, gangways, ramps, cargo loading or unloading equipment, and mooring ropes. Special attention should be directed to the seaward side of the vessel. Closed circuit camera monitors can also be used. Steps should be taken to ensure only authorized persons embark or disembark the vessel, such as the use of identity cards or boarding passes. To prevent stowaways from gaining access via cargo or containers, ship staff can take steps to ensure cargo container seals are intact.
Steps to Take Upon Discovery of Stowaways
Stowaways must be treated with measures respecting both humanitarian and security concerns. Notwithstanding their emphasis on security, the new standards of the MTSA and the ISPS Code recognize and reinforce the right of stowaways to just and humane treatment. When possible, stowaways found as a result of a pre-disembarkation stowaway search should be sent ashore. This can be complicated if the stowaways lack proper identification papers or are not of the nationality of the port country. When stowaways are found at sea, steps should be taken to determine if other stowaways are present. Then steps should be taken to ascertain the identity and nationality of the individuals. The master of the vessel should immediately contact the shipowner, the P&I Club and governmental authorities at the next port of call. The master has a humanitarian responsibility to provide food, water, sanitary facilities and shelter to the discovered stowaway.
Disembarkation
Disembarkation of stowaways should also be effected consistent with basic humanitarian and security considerations. The new measures of the MTSA and the ISPS Code provide that public authorities shall require all shipowners entitled to fly their flag to instruct their masters not to deviate from the planned voyage to seek disembarkation of stowaways discovered while at sea unless permission has been granted by the public authorities of the State to whose port the ship has deviated. Disembarkation may be facilitated by adequate documentation, or where there are extenuating security, health or compassionate reasons. When possible, stowaways found inadmissible in the country of disembarkation should be returned to the country where they boarded the vessel.
P&I Club Cover
The costs of having stowaways on board can be significant. Ships are responsible for funding the disembarkation and repatriation costs of stowaways. Many countries assess fines when stowaways escape from a vessel, and many countries require a guarantee or bond to cover the costs of detention and repatriation as a condition of allowing the disembarkation of stowaways.
Many P&I Clubs provide cover for stowaways and have specific rules regarding stowaways. P&I coverage may be reduced or rejected if the Club’s Directors find the Member failed to take appropriate steps to prevent the stowaways from boarding. Costs covered under P&I insurance can include the expense of employing guards to prevent stowaways from escaping, costs of jail and detention, fines levied due to stowaways being on board, costs of food and clothing, and embassy fees or repatriation expenses. Certain costs may be specifically excluded, such as lost profits due to diversion, or damage caused to a vessel or cargo by stowaways. P&I Club Members should contact their Association to advise of a stowaway incident or claim, to advise of diversion and to confirm whether a diversion is covered. It may be appropriate to arrange additional insurance coverage to ensure protection of the shipowner should a stowaway incident result in a breach of the contract of carriage.
Stowaways Clause for Time Charters
Although the expenses arising from the presence of stowaways on a vessel are normally the responsibility of the shipowners or operators, there may be instances where the charterer may be liable for some or all of the expenses. This can occur, for example, should stowaways board by hiding away in containers or should the stowaway risk be from stevedores who are the responsibility of the time charterer. In such cases, it is advisable to incorporate a stowaways clause in the charter party agreement. One such clause is published by The Baltic and International Maritime Council (“BIMCO”) and can be found on its website here.
Carefully drafted stowaway clauses can remove the element of uncertainty from the charter party and reduce the likelihood and cost of disputes.
Conclusion
The economic implications of stowaways pale in comparison with the toll on human life. In a single incident in 2000, for example, 54 Chinese nationals were found dead in a container truck that had crossed from Belgium to the United Kingdom. Increased international efforts to reduce the stowaway problem will not only increase national security and save the maritime industry money, they will save lives. The problem of stowaways is as ancient and enduring as maritime trade and travel. Recent legislation and maritime policy, such as the MTSA and the ISPS Code of July 1, 2004, are unlikely to end the stowaway problem. Even at the highest levels of security, no system can be completely foolproof to the determined independent stowaway.
