Commercial Rescues Down, But Serious Legal Problems Emerge

Around 44% of commercial shipping lines in the Mediterranean turn off a legally required tracking device, to avoid being sent to do rescues, Migrant Report has learned.

The Automatic Identification System (AIS) is an open source VHF radio system that shows a ship’s exact position along with destination and speed other information that is needed in a May Day situation.

Switching off the AIS is becoming a global problem now”, according to Glen Forbes, former UK Royal Naval Officer and head of the maritime focused news website, OCEANUS Live.

But the phenomenon is particularly salient in the Mediterranean where many vessels are going off the system to avoid being noticed by rescue coordination centres.

According to the Italian coastguard, more than 250 commercial ships were involved in rescues last year, saving more than 42 000 people, a number predicted to increase significantly in 2015.

But Forbes, who was also recently chosen to join the Global Initiative against Transnational Organized Crime, also cautions that the trend is not only connected to migration. Some of these vessels would be engaged in illegal activities such as fishing out of season or for prohibited stocks.

 

Others may have technical issues, particularly off Libya, where there is only one AIS beacon to retransmit the signal of passing ships. When the system gets overloaded ships disappear off the system then reappear much later – a recurring situation off the Libyan coast that has been corroborated by multiple shipmasters.

The AIS system and voyage data recorders (VDRs) were made mandatory by the International Maritime Organisation (IMO) in 2002.

Under the International Convention for the Safety of Life at Sea (SOLAS) all ships over 300 tones for international and 500 tons for local are obliged to keep the AIS system in operation at all times except in specific circumstances where international agreements or rules “provide for the protection of navigational information”.

An exception, for instance had been made during the piracy crisis off the Horn of Africa in 2010, when ship masters were allowed to turn off their AIS if it compromised their safety.

Three rubber boats cling to the side of a tankership waiitng to be rescued - Photo: © Jason Florio - MOAS.eu

Three rubber boats cling to the side of a tankership waiitng to be rescued – Photo: © Jason Florio – MOAS.eu

This year’s tragedy on April 18, in which an estimated 850 people lost their lives, involved a commercial vessel, which was the first to respond.

The crew of the King Jacob, a 150-metre cargo ship had already been involved in similar rescues in the past. But this time, there was very little they could do.

According to survivors accounts, the 20-metre wooden boat on which they were sailing went down after it crashed into the King Jacob. Some told the Ansa news agency that the captain, a 27-year-old Tunisia Mohammed Ali Malek “rammed” the boat into the side of the King Jacob.

More than 800 people stuck in the hold of the vessel simply went down with the boat. The captain and Syrian national Mahmud Bikhit, 25, who were among the 27 survivors who were recovered at the scene, were charged with multiple homicide.

The King Jacob crew threw life jackets at the people who made it out. However, they could not do much else before rescuers finally arrived several hours later.

And here lies the key problem with commercial vessels being involved in such rescues, that they are simply not designed or equipped to handle these situations.

Dramatic footage released in May, gave a graphic illustration of this. Migrants could be seen struggling to climb the side of the Thai-crewed cargo Zeran.  

The cell phone video shows migrants beginning to drowning as their inflatable dinghy starts deflating after hitting the side of the ship.

The captain and crew watch from above, throw ropes and flotation devices in an attempt to rescue them but there is not much else they could do in the absence of a smaller vessel able to approach the migrants safely. At least 46 people estimated to have drowned.

Representatives of the commercial industry told Migrant Report that merchant vessels are not made for mass rescues, nor are the crews trained or the ships equipped to deal with large numbers of rescuees.

“There’s a world of difference between a ship with a crew of 20 rescuing another merchant ship or yacht with a similar crew – and the situation at the moment where merchant ships with limited crews are rescuing boats of 300 or more”, Peter Hinchliffe, the Secretary General of the International Chamber of Shipping told The Guardian.

Less Rescues, More Problems

Much of the attention of commercial ships being involved in deadly rescues also focuses on the “captains” of the smuggling vessels Mohammed Ali Malek and his mate were arrested for the reckless multiple homicides when their 66 foot long ship collided with the rescuing vessel. This legal act would be unlikely in the event of credentials master operating a commercial ship but it shows that there is extreme risk if a captain was proven to be responsible for deaths during a well intentioned rescue.

“Some of the burden has been taken off the shoulders of the commercial shipping industry after the expansion of Triton,” notes John Murray, Marine Director and Head of the Marine Department of the International Chamber of Shipping. Despite this decrease in rescues, commercial ships are still very much involved. To deal with this task, manuals have been written, statistics are gatehred and International Chamber of Shipping has even delivered placards with basic Arabic and French quotes to more than 3000 commercial shipping companies.

Map from Shipfinder showing the activity in the Mediterranean

Map from Shipfinder showing the activity in the Mediterranean

Map from Shipfinder, showing the activity of ships in the Mediterranean

Gerry Northwood OBE, the COO of the leading maritime security company MAST told Migrant Report that “there is definitely an increased concern of the impact that the migrant crisis has on the commercial shipping industry, and several ship-owners recently expressed their concern about this issue during a press conference I attended. Both in terms of the cost of money, as well as complications when overloading a vessel”. Thier increasing concern coincides with the busiest summer in history for rescues int the central Mediterranean, a crowded shipping lane.

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Map from Shipfinder, showing the activity of ships in the Mediterranean

The UN Convention on the Law of the Sea (UNCLOS) and the International Convention on Salvage, which govern mandatory search and rescue operations at sea, emphasizes that the master has a duty to render assistance only “in so far as he can do so without serious danger to the ship, the crew or the passengers”, as he must always have the safety of his vessel and crew as his main priority. However most commercials are equipped to deal with other commercial or small passenger ships, not thousands of migrants on sinking boats or rafts.

Ships are required by law to be identifed by their AIS which shows vessel information and location. This also allows rescue coordination centers to decide which ships should respond to a rescue.

“The Master’s authority must always remain in place and he or she should be able, with his or her experience, make what they deem to be the correct decision”, David Hammond, CEO & Founder Human Rights at Sea said. “Ship-owners are probably forced into this position, but which is also an issue for the governments of the coastal states affected”.

Damage to Commercial Sailing

Besides the risk of the wellbeing of the crew of the commercial ships, there is also risks of damage inflicted on vessels during the actual rescue and diversion costs, which constitutes the single largest expense incurred in these situations, as well as extra fuel costs, port charges, wages and stores, according to IHS Maritime Safety at Sea.

In terms of the wellbeing of the crew, Migrant Report questioned whether or not the training of the crew should be intensified after the growth of the migrant crisis. “The training of the crew of is not specific enough to what we are seeing in the Mediterranean at the moment”, John Murray, Marine Director and Head of the Marine Department of the International Chamber of Shipping says “and obviously, the scale of it and the large numbers of people involved in such a rescue, makes it very difficult for the crew to be prepared for such situations, without having intensified training”.

However, Murray does not believe that intensifying the training in itself is a solution to the problem.

“If you say all ships should be trained for this specific issue, it makes it sound as if shipping is part of the long-term solution, which we are not. Clearly, effective training to meet SAR-standards and all training in drilling people to support SAR’s is important, but I think there would be a risk associated in pushing for additional training for this particular issue”.

David Hammond, CEO & Founder Human Rights at Sea shares Murray’s opinion, saying ““the knock-on effect will be that seafarers may be made to do a lot more watch keeping, increasing both the training and responsibility placed on the seafarers and taking them away from them doing their normal jobs. I believe that you are then going to have to create more of a training pipeline which will increase costs passed on to shipping and which ultimately ends up being passed back to the consumer”, Hammond argues.

Watch Keeping

Hammond and Murray both mentioned one of the more recent issues that has emerged with commercial ships being involved in migrant rescues, called “watch keeping”. “One of the areas we are slightly concerned with, is when commercial ships are sent to an vessel in apparent distress, only to find that actually, the vessel in distress reports back to the RCC, but are still told by RCC to remain in sight in case the situation of the vessel becomes an emergency”, he says. “That stands quite outside the SAR SOLAS regulation, and it is definitely not an appropriate tacking of the situation by the RCC of commercial ships”.

Migrants boat floating alongside massive tanker ship © Jason Florio - MOAS.eu

Migrants boat floating alongside massive tanker ship © Jason Florio – MOAS.eu

Watch keeping is not included in the list published by The International Chamber of Shipping published in 2014, of the number of commercial ships used to conduct SARs. “It is important to note that this only includes the rescues, not the amount of ships that were put on standby and not used, which could easily double-treble the figure about the ships that are being used or prepared to being used”, Glen Forbes said.

The effort it takes a commercial ship to abort its initial mission is severe in comparison to sending a small NGO, like the MSF chartered Bourbon Argos or other ships funded, tasked and eager to do rescue at sea. Having to turn around a large tanker is very time consuming, both in terms of reaching the new destination, as well as going back to their initial route. If they are not actually committing a rescue, they are also not qualified for coverage from their insurance, Glen Forbes said, which makes the operation very expensive as well.

Until commercial shipping comes to terms with the governments response, or until migrants stop itersecting shipping lanes, the problem of ships “avoiding the radar” in the Mediterranean, will continue.