Marco Manzone
Dardani Studio Legale, Genova
​​​​​​​marco.manzone@dardani.it

Introduction

The migration phenomenon occurring in the Mediterranean Sea is vast. The numbers are uncontroversial: since 2014, more than two million migrants have crossed the Mediterranean Sea, mostly using the so-called central route from Libya and Tunisia straight to Sicily and Malta.^[1] The rescue roles of state vessels and commercial vessels have been sided (if not replaced) by vessels operated by non-governmental organisations (NGOs), which attain exclusively to save lives at sea. The role of such vessels is being contested, not only from a political perspective but also from a legal angle: criminal charges for allegedly aiding illegal immigration; recognition and assignation of a place of safety under the International Convention on Maritime Search and Rescue (Hamburg 1979) (the 'SAR Convention'); and coastal state inspections and detention of vessels involved in search and rescue operations are among the criticalities faced by NGOs. This brief article focuses on recent detentions of NGOs' vessels adopted by the Italian port state control (PSC) authority and, in particular, judicial administrative proceedings pending in Sicily (Italy) against the detention of the vessel Sea-Watch 4.

Brief legislation background on PSC

PSC regulation stems from the United Nations Convention on the Law of the Sea, signed in Montego Bay in 1982 (the 'UNCLOS') and the International Convention for Safety of Life at Sea, 1974 (the 'SOLAS'). According to the UNCLOS, flag states maintain jurisdiction and control over the vessel flying their flag in administrative and technical matters.^[2] However, other states may be affected by the activity carried out by such a foreign ship; hence, the UNCLOS recognises that, under particular circumstances, the flag state shall investigate and take any actions deemed appropriate.^[3]

The SOLAS has gone further. The power of the coastal state to control and verify vessels entering into its ports has been expressly codified under Regulation 19 of the SOLAS. Coastal states have the right to formally verify the issuance by the flag state of valid certificates, and extend more substantial control only in the event that there are clear grounds to believe that the vessel or its equipment do not correspond to what is stated in those certificates, or in the event that the vessel may pose a risk to navigation.

In the European Union, the legal framework is completed by the Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (Recast) (the 'EU PSC Directive'),which has been incorporated in Italy by Legislative Decree No 53/2011.

Harmonised procedures for PSC inspections and detentions are also set out in the Paris Memorandum of Understanding, which contains the official agreement between the 27 participating maritime states implementing a harmonised system of PSC.

Detentions concerning vessels operated by NGOs in the Mediterranean

Since May 2020, PSC inspections and detentions under the Italian maritime authority have increased: nine inspections resulted in eight detentions (vessels Aita Mari, Ocean Viking, Open Arms and Sea-Watch 4 were inspected and detained once; and vessels Alan Kurdi and Sea-Watch 3 have suffered two detentions). Furthermore, the number of irregularities reported by the Italian PSC authority doubled.^[4]

The Italian PSC authority is essentially arguing that vessels operated by NGOs are engaged in routine search and rescue activity, irrespective of their official classification, and, hence, they should respond to the safety and technical requirements of search and rescue vessels, and the force majeure principle contained under Article IV of SOLAS (and equivalent principles set out in the Maritime Labour Convention (MLC) or MARPOL Conventions) is inapplicable for such activity.

Proceeding pending in Palermo against the detention order of m/v Sea-Watch 4

The Italian regional administrative courts (tribunale amministrativo regionale or TAR) are now the theatre of a legal dispute between the owner of the NGOs' vessels and the Italian PSC authority.^[5] One of these vessels is the m/v Sea-Watch 4 operated by the German association Sea-Watch. The Administrative Court of Palermo (the 'TAR of Palermo') is deciding the dispute concerning the detention of Sea-Watch 4, which occurred on 19 September 2020 in the port of Palermo,^[6] where the PSC authority ascertained a number of deficiencies serious enough to trigger an order for detention. In particular, the Italian PSC authority was of the opinion that Sea-Watch 4 was not operating under the umbrella of its classification certification, that is, a general cargo vessel, but it was carrying out a systematic service of search and rescue activity and, for this reason, the vessel had to comply with the applicable international conventions and national requirements for such intended service. For example, the sewage treatment plant and number of life-saving appliances were deemed non-compliant.

Sea-Watch filed an opposition before the TAR of Palermo against the above detention order and, pending the final decision on the merits, it demanded a precautionary request to the court to suspend the order of detention on an urgent basis. The TAR of Palermo issued two preliminary decisions: on 23 December 2020, it admitted a request for a preliminary ruling before the European Court of Justice (ECJ)^[7] and on 2 March 2021, it admitted the precautionary request of Sea-Watch and suspended the detention order.^[8]

As far as the request for a preliminary ruling is concerned, the TAR of Palermo requested the ECJ to rule on the following: (1) whether the scope of the EU PSC Directive also included ships not engaged in commercial activities and, in particular, cargo ships that routinely carry out SAR activities for persons in distress at sea; (2) whether the administrative authorities of port states have the power to assess the conformity of the ship's certificates, and the related equipment and appliances on board in the light of the activity carried out in practice, in the event that this is different from the one stated in the classification certificate, particularly in the event of SAR activities; and (3) in the affirmative, whether such requirements and criteria must be fulfilled on the basis of a clear legal framework regarding the classification of SAR activities set out internationally or, in the negative, by the national legislation of the flag state or the port state.

This last issue was later addressed by the TAR of Palermo in the precautionary decision allowing the suspension of the detention order. The Sicilian administrative court declared, without prejudice to the upcoming evaluation to be made by the ECJ, that the power of the PSC's authority seems limited to the verification of both the certifications and the requirements of the ships, on the basis of the classification of the vessel and not on the practical activity carried out in a specific case; and that international legislation does not contain a specific legal framework for a vessel routinely engaged in search and rescue activity of persons in distress.

The Italian Coast Guard appealed the decision on the suspension of the order of detention before the Council of Administrative Justice for the Sicilian Region (Consiglio di giustizia amministrativa per la Regione Siciliana or CGA), the appellate administrative court of Sicily, which reversed the first instance decision and affirmed the legitimacy of the detention (at least under the boundaries of the interim decision).^[9] The following are the main arguments supporting the CGA's decision.

First, CGA affirmed that Article 3 of the EU PSC Directive, as transposed in Italy by Legislative Decree No 53/2001, which excludes from its scope ships and yachts not engaged in commercial activities, cannot be construed so as to exonerate vessels from PSCs in the event that the effective activity of the inspected ship is a non-commercial one, different from the 'theoretical' commercial one appearing from the classification certifications.

Second, the CGA stated that PSC activity cannot consist of a mere documentary check, but the control must encompass a concrete analysis of the activity carried out by the inspected vessel, so that an effective check of the vessel standard is conducted.

Third, the appellate court affirmed that it is not true that at international level there is a lack of an established legal framework for private vessels routinely engaged in search and rescue activity. According to the court, the SAR Convention contains such a legal framework, whereby its amended Annex contains definitions of 'search and rescue service', 'rescue', 'search and rescue facility' and 'search and rescue unit', and also contains, in Article 2.6.1, an express reference to the facts that 'each search and rescue unit shall be provided with equipment appropriate to its task'. The court recognised that the SAR Convention does not contain precise indications of the requirements and criteria to be fulfilled by search and rescue vessels, but it concluded that coastal states should eventually establish whether that specific vessel fulfils the safety criteria for search and rescue activity.^[10]

Lastly, the court indicated that vessels engaged routinely in search and rescue activity cannot benefit from the force majeure principle set out in Article IV of SOLAS,^[11] which provides that persons in distress, carried on board as a result of the master's obligation to rescue them, must not be taken into consideration for the purpose of applying safety requirements. Indeed, according to the CGA, search and rescue activity of NGOs' vessels is an activity carried out systematically falling within the definitions set out by the SAR Convention and hence, the said force majeure principle, which, by nature, should be confined to unexpected and unforeseen situations, cannot be applied. This conclusion is questionable, as NGOs' vessels are not providing a service to people in distress at sea, knowing in advance the number of people to be rescued. The starting point should be the situation of extreme emergency, which should allow the captain of the vessel to take any appropriate measure to save life at sea, not worrying about the number of persons for which a sewage treatment plant has been installed on board.

Comment

We are only at the very beginning of these legal proceedings: the decision of the ECJ is expected soon, and following the ruling, the first instance court in Palermo will issue its final decision on the merits. However, this controversial political matter has already generated two opposite decisions on the suspension of the detention order in the initial precautionary phase. A polarised political matter is giving rise to polarised decisions, and we hope that the ECJ may bring clarity to this, assisting the Sicilian administrative courts to reach coherent and legally based decisions.

Notes