Guidelines for Commercial Shipping Rescuing Persons at Sea
While international conventions are clear on the duties of various parties to assist persons in distress at sea, there are no conventions which specify where survivors are to be taken, beyond the requirement that they are to be taken to a place of safety. Traditionally, it has been assumed that a ship's master will consult with ship owners and relevant authorities on the best place to take survivors, depending on the individual circumstances surrounding each case, and for survivors to be processed by border control authorities or the relevant port State.
This tradition and conventions are based on the assumption of small numbers of survivors who are genuinely shipwrecked as crew or passengers of a ship.
In recent years, cases have emerged of people attempting to enter countries illegally by boat, often in overcrowded and unseaworthy craft that may get into distress, either accidentally or by design. A more recent development has been the use of force or threat to “persuade” masters and crews of rescuing ships to transport survivors to a particular destination.
These guidelines are therefore intended to provide guidance to ships' masters involved in the rescue of persons at sea in relation to arrangements for landing survivors. The guidelines should be read in conjunction with Resolution MSC.167(78) 1, adopted by the Maritime Safety Committee of the International Maritime Organization on 20 May, 2004.
Because it is not possible to cover all scenarios, these guidelines are of necessity general in nature. In particular, they do not prescribe how ships' masters should manage the transfer of persons to the ship. This is a matter for the master who is responsible for the security of employees and assets.
These guidelines do not make any distinction between persons who may or may not be suspected of being unauthorised boat arrivals and they make no distinction between the flags of ships. However, where a ship has a direct connection to Australia, the Australian Government may make representations to other Governments on its behalf.
Compliance with International Obligations
Australia and other States which are signatories, and the international shipping industry, are committed to upholding their respective obligations under all relevant international conventions, such as the United Nations Convention on the Law of the Sea, the International Convention on Search and Rescue, and the International Convention on the Safety of Life at Sea.
Nothing in these guidelines is inconsistent with or will derogate from Australia's or the shipping industry's international obligations under these conventions or the United Nations Convention on the Status of Refugees. Normal search and rescue procedures for distress signal reception and relay will be followed at all times, consistent with the International Aviation and Maritime Search and Rescue Manual (IAMSAR Manual). Australia's compliance with its international obligations will not be compromised.
Recognition of Principles
As well as complying with convention obligations, the Australian Government recognises that:
Search and Rescue (SAR) co-ordination responsibility remains with the search and rescue centre responsible for the SAR Region in which the rescue takes place in accordance with the IAMSAR Manual;
Any decision to disembark rescued persons at a particular port of a State should not be made without the consent of that State;
The involvement of any ship in a rescue is likely to have commercial consequences and these consequences should be taken into account in determining the arrangements for disembarking rescued persons from the rescuing ship;
Australia has an obligation to give expeditious consideration to the identification of suitable options for the disembarkation of rescued persons and to not unreasonably withhold consent to use its port or ports for disembarkation;
Disembarkation arrangements for survivors need to be consistent with any security or border protection arrangements developed nationally, internationally or regionally;
There should be no encouragement or incentive for persons to be deliberately put at risk in pursuit of entry to Australia or for rescuees to use threat in an endeavour to dictate the place of disembarkation; and
Australia has a sovereign right to determine who comes into Australia.
Stages in a Rescue in or Adjacent to Australia's Search and Rescue Region
Stage 1: Identification of a distress situation and issuing of alert
The Australian Rescue Co-ordination Centre (RCC) Australia, if first notified of a distress situation, issues a distress alert to shipping, either on its own behalf if the distress situation is in Australia's own SAR Region, or on behalf of the responsible State if the distress situation is in the SAR Region of another State.
In the latter situation, RCC Australia contacts the other State to transfer co-ordination responsibility and that State is then responsible. RCC Australia will not relinquish responsibility until the State to which responsibility has been transferred has acknowledged that it has accepted responsibility.
The following stages cover circumstances where RCC Australia is the co-ordinating Rescue Co-ordination Centre (RCC).
Stage 2: Response by shipping to distress alert
Ships (including available naval ships) respond according to international conventions and deviate from courses to effect rescue. Normal practice would be for the Master to advise the owner of deviation.
If no ships respond to the distress alert, RCC Australia will examine any available ship reporting system, and contact any ships in the general area to see if they can attend the rescue.
Stage 3: Completion of the rescue
Rescuing ships arrive at distressed ship and determine appropriate course of action, for example effect repairs, provide medical assistance, place distressed ship in tow or embark persons.
Rescuing ship releases other ships responding to the alert as appropriate.
Master advises RCC Australia of situation and would normally also advise owner and maritime safety authority of the ship's flag State.
On completion of the rescue, the Master of each vessel participating in the rescue should advise RCC Australia that the rescue is completed and provide the following information:
details of rescuing ship(s);
the number of rescued persons on each ship;
the name, flag, description, call sign and intended destination of the ship in distress;
the port of origin of the ship in distress, if known;
the nationality of those rescued, if known;
the countries where those rescued have right of entry, if known;
the port(s) of disembarkation preferred by the Master and why; and
if the Master intends to deviate from the originally intended voyage as a result of pickup up shipwrecked survivors, the reasons for the deviation.
Having provided this information the Master should then await further instructions from the Australian Government, through RCC Australia.
The Master would normally also copy all communications with RCC Australia as outlined above to the vessel's owner/operator/manager and the maritime safety authority of the vessel's flag State.
Stage 4: Identification of method of disembarkation of rescued persons
Taking into account the information and preferences provided by the Master (including commercial considerations), as well as the principles outlined above, RCC Australia, acting on instructions from the Government, will advise the Master where the passengers can be disembarked.
Where Australia is the proposed State of disembarkation the Government will make an assessment as to the appropriateness of accepting the rescued persons, taking into account a range of factors including customs, migration and security arrangements.
Where the port(s) are in another State, the Government will need to determine whether that State is willing to accept those rescued.
If expeditious agreement cannot be obtained to disembark the rescued persons at the preferred port or transfer them to another ship, RCC Australia will notify the Master, the flag State and the State of the preferred port that an impasse has arisen.
Each of these parties will identify a single point of contact for further discussion to arrive at a resolution. While discussions may take place between a number of interested parties, all decisions will be conveyed through these nominated representatives.
Stage 5: Disembarkation of rescued persons
When a final decision is reached, the rescued persons will be transported to the agreed port of disembarkation or transferred to another ship and the commercial ship will be released to continue its voyage.
In circumstances where RCC Australia is not the co-ordinating RCC (generally due to the vessel not being in Australia's SAR) and the Master wishes to disembark rescuees in an Australian port, the Government would require all the information referred to in Stage 3 (above) to be relayed to RCC Australia. The Government will make an assessment as to the appropriateness of accepting the rescued persons, taking into account a range of factors including customs, migration and security arrangements and advise RCC Australia to convey the Government's decision. The Government would expect the Master to respect that decision and pursue alternatives if the Government's decision is that it will not accept the rescued persons.