Refugee boats in Australian waters

As Members will no doubt be aware, there continues to be a significant issue of Refugees and Migrants seeking to reach Australia by way of the sea route. As many news reports over the last few years have confirmed, this is unfortunately a very dangerous journey having lead to many tragedies, including significant loss of life.

At present, the Australian authorities are seeking to deal with the practical aspects of this issue by arranging to rescue those persons in distress at sea and taking all seaborne persons to processing centres on islands off the Australian mainland.

The Marine Rescue Coordination Centre Australia (MRCC) effectively controls all maritime rescue requests within the area on the map below. As can be seen that is more or less the entire Indian Ocean south of the Equator and east of Sri Lanka. If a vessel is in distress within this area, the MRCC will respond to the emergency.

Skuld Member vessels have been contacted on a number of occasions by the MRCC to assist in the rescue of distressed persons at sea.

When such a situation arises, Members may have a number of queries and concerns. To address some of these concerns, Members are advised as follows :

1. absent immediate danger, a Vessel should seek to co-ordinate with the MRCC before it picks up any vessel borne persons : of course vessels need to assist anyone who is in the water or otherwise in immediate danger;
2. if a vessel is contacted for assistance by someone other than the MRCC, the vessel should relay that request to MRCC and then await instructions from MRCC before conducting the rescue;
3.  if instructed to pick up by MRCC to assist, the vessel should obtain MRCC's instructions as to what it should do with any rescued persons before picking them up;
4. MRCC usually ask for the ship to divert to Christmas Island or Cocos Island or meet a navy ship at sea to drop off any rescued persons - follow that instruction;
5. under present policy Australia will “accept” any person who claims to be a Refugee that MRCC requests a ship to pick up : many other countries will not accept such persons and will resist any vessel carrying such persons from entering their national waters:  do NOT take Refugees to other countries in the region if directed to pick up Refugees by MRCC Australia;
6. ships have an obligation under SOLAS to save life at sea – and  Masters should sensibly  follow instructions from MRCC;
7. experience has shown, that some people rescued are keenly aware of where they want to be headed, and there have been some incidents where threats were made against the Crew if the vessel did not proceed to Australian territory : safety and security on board will be key issues to carefully monitor : if in doubt the Master should not hesitate to call for assistance from the MRCC and the Australian Navy;
8. each Master needs to take his own view on security of  his ship, crew and cargo : dependant very much on the capacity of the vessel and the number of persons rescued – if in doubt Masters should not hesitate to seek guidance and assistance;
9. the Ships' crew are often overwhelmed by genuine requests for medical attention by rescued persons  (who have sometimes been at sea for a period without food or water prior to rescue) : Masters should liaison with MRCC and other relevant providers of information to provide the best assistance they can;
10. we are not aware of any violent incidents having happened on Ships that have rescued persons at sea in this area, but it is important to be cautious and any person allowed on board should be searched : luggage and “cargo” should not be brought on board.

Broadly speaking, the “legal” position in respect of saving life at sea and the right to disembark persons may be summarised as follows :

1. ships are required to save persons in a mayday situation - ie imminent danger of loss of life or to the viability of the vessel itself. Broadly speaking, it is the skipper of the vessel in distress who determines whether the circumstances are a 'mayday' or not - so the skipper of the 'saving' ship is in the legal position of more or less having to accept there is a mayday situation on the vessel asking to be rescued and there may be consequences if he mistakenly takes the view the 'mayday' was not “valid”;
2. there is no clear international law on what 'rights' the saving ship has to disembark those people who are saved and whilst international “convention” was that the ship had a right to disembark those persons either their home port, the nearest port or the next port they would ordinarily go to on the voyage (at the Master's option), clearly many countries do not accept that : particularly where the persons rescued are suspected of seeking to claim Asylum rights or are “deemed” to be migrants – in either case difficult political situations may be involved;
3. many countries (including Australia) have a policy of NOT accepting Refugees if they have been to another country 'on the way' to the final country of desired destination- so in the case of Refugees who were picked up by a ship at the request of MRCC Australia DO NOT TAKE THEM TO ANOTHER COUNTRY UNLESS YOU ARE 100% SURE THEY WILL BE ACCEPTED, because if you are wrong, you may not be able to bring them to Australia after you 'fail' to disembark them elsewhere.

The Association appreciates that being involved in a sea rescue and transportation of rescued people can have significant impact on the vessel’s planned employment.

Issues may arise over :

1. laycans and other time limits
2. off hire, fuel consumed, stores consumed, other expenses incurred
3. deviation issues
4. possible SOLAS issues
5. insurance implications

As these issues will be very much situation dependant, the Association would seek to advise Members on an individual basis in relation to such concerns in each case that may arise.

Members are, however, reminded that the Association is always standing by to assist Members when confronted with difficult situations, and Members should not hesitate to make contact whenever they have any concerns.

The Association is grateful to James Neil of Aus Ship P&I, Sydney, for providing this update to the Association and its Members.