Part I of the discussion regarding the Refugee Clause, wherein a ship that finds refugees in peril is obligated to rescue the distressed refugees, discussed a hypothetical of a group of people who leave their native country in search of a better life somewhere else. They hire smugglers who take them out of the country and onto boats. When the weather gets nasty and the sea gets rough, many members of the group are thrown overboard. A ship comes to their rescue and takes the refugees to safety.
These types of rescues are becoming more common and are very expensive. Especially in the aftermath of the Arab Spring, more and more people are looking to go to Europe. Often, they travel in boats that are inadequate, which eventually leads to the rescue requirement.
Many nations with large seafaring industries have long required those who embark on the waters to save those who are in peril, including the United States. On an international level, such laws were codified during the United Nations Convention on the Law of the Sea from 1982 and the International Convention on Search and Maritime Rescue in 1979. Specifically, an annex to the Search and Maritime Rescue Convention states that “a situation of distress shall be notified not only to consular and diplomatic authorities but also to a competent international organ if the situation of distress pertains to refugees or displaced persons.”
Note that these laws require that the rescuing vessel bring these people to a place of safety. A place of safety can be at the next docking station, all depending on the circumstances the needs of the refugee(s). This also means that the rescuing ship may not bring the rescued person to his or her home country or any other place where such a person would be in danger.
As such, a ship may be compelled to incur higher costs as a result. For instance, a ship in the Mediterranean may not bring a Libyan refugee back to Libya and instead may be required to bring that refugee to France. This may be very expensive.
Now that the refugees are safe in their new country, the question becomes who is the responsible party with respect to covering the costs of the rescue. Unfortunately, there is no clear answer in this regard. Therefore, whichever party incurred the original costs, usually the party chartering the boat, will have difficulty retrieving any costs incurred. The party chartering the boat will likely have no legal theory why another party should be responsible to shoulder the expense. While public policy may dictate obligations, the requirement remains unclear.
In 2001, a Norwegian boat picked up a bunch of Afghani refugees and brought them to Australia. The Australian authorities refused to accept the refugees. Eventually, those refugees found asylum in New Guinea. To offset the costs, the UN High Commissioner helped the Australian boat with the expenses.
Involved in the maritime business? Partner with a law firm that understands your business. Contact the Kolodny law firm.