international law of the sea and Ships in Distress at Sea

(a) Concept of Ships in Distress
In light of imminent danger, particular rules apply to a ship in distress. Concerning the
criteria for determining a distress situation, Lord Stowell, in the Eleanor case, specified four
requirements. First, distress must be urgent and something of grave necessity. Second,
‘there must be at least a moral necessity’. Third, ‘it must not be a distress which he has
created himself’. Fourth, ‘the distress must be proved by the claimant in a clear and
satisfactory manner’. At the treaty level, the 1979 International Convention on Maritime

Search and Rescue defines a ‘distress phase’ as: ‘A situation wherein there is a reasonable
certainty that a vessel or a person is threatened by grave and imminent danger and requires
immediate assistance.’
In this regard, an issue arises as to whether the plea of distress is limited to saving human
life. This issue is of practical importance since, as will be discussed below, the ships in
distress have a right of entry to any foreign port under customary international law. When
drafting Article 24 of the Draft Articles on Responsibility of States for Internationally
Wrongful Acts, which relates to distress, the ILC made it clear that ‘Article 24 is limited
to cases where human life is at stake’. It stressed that the interest concerned in the
situation of distress is the immediate one of saving people’s lives, irrespective of their
nationality. According to the ILC, threats to human life are at the heart of the concept of
distress under international law of State responsibility. By analogy, it may not be unreasonable
to argue that the protection of the lives of persons on board constitutes an essential
element for identifying ships in distress. The right of ships in distress to access to ports of
foreign States constitutes an exception to the coastal State’s jurisdiction and the exception
should be interpreted in a restrictive manner in order to prevent the abuse of the claim of
distress. It may go too far to include ships which need assistance only to protect economic
interests, i.e. the ship and its cargo, within the scope of ships in distress.
The restrictive interpretation of the concept of ships in distress was echoed by the Irish
High Court of Admiralty in the M/V Toledo case of 1995. In this case, Barr J made a clear
distinction between two types of situations of ships: the one where there is a grave and
imminent peril against the lives of persons on board and the other where the risk to vessel
and cargo is purely economic in nature. Barr J then ruled that: ‘[I]f safety of life is not a
factor, then there is a widely recognised practice among maritime states to have proper
regard to their own interests and those of their citizens in deciding whether or not to accede
to any such request.’ It can also be observed that international instruments tend to
distinguish ships requiring rescue of persons on board from ships in need of assistance,
i.e. a ship in a situation that could give rise to loss of the vessel or an environmental or
navigational hazard.

(b) The Rights of Ships in Distress
For humanitarian and safety reasons, it is generally recognised that any foreign vessel in
distress has a right of entry to any foreign port under customary international law. In the
words of the 1809 Eleanor judgment, ‘[real and irresistible distress must be at all times a
sufficient passport for human beings under any such application of human laws’. A ship
in distress entering a port or a place of refuge enjoys immunity from local laws. The
immunity applies to arrest of the vessel, to local health, criminal and tax laws, as well as
to public charges levied for entry into port. The burden of proof to establish distress is on
the party claiming exemption from local laws, namely the ship in question. A ship in
distress is also exempted from certain rules regulating marine pollution because such rules
apply only to ships that have voluntarily entered a port or an offshore terminal. However,
a ship in distress enjoys immunity only where local laws are breached for reasons of force
majeure, and the ship cannot enjoy immunity from all local laws. One can also say that a
ship in distress that is engaged in any activity contrary to jus cogens, such as slave trading,
should lose its immunity if it enters a place of refuge.
A contemporary issue that needs further consideration involves environmental hazards
arising from ships in distress. In former times, ships were smaller in size and their cargoes
were not inherently dangerous to the marine environment of coastal States. Nowadays,
however, the size of ships has increased and there is growing concern that the contents of
cargoes and fuel can threaten the offshore environment of coastal States. In the case of
accidents, the economic and health interests of a coastal State’s local community may be
seriously damaged. It is probable, therefore, that coastal States will refuse to grant ships in
distress access to a place of refuge in order to protect the environment of offshore areas, as
occurred when France refused to give refuge to the Erika in 1999. Likewise, in 2001, several
coastal States refused the damaged tanker Castor refuge in safer waters. In 2002, Spain
ordered the oil tanker Prestige to be towed out to sea from the Bay of Biscay. As
demonstrated in these examples, a tension arises as to how it is possible to reconcile the
need to provide refuge for ships in distress and the marine environmental protection of the
coastal State. Here an issue to be considered is whether the traditional rules concerning
ships in distress were changed by recent State practice refusing to grant a place of refuge to
ships which requested permission to enter into a port. In this regard, three observations can
be made.

First, as noted, the right of entry into foreign ports by vessels in distress is a longe stablished
rule of customary international law. It is debatable whether there is widespread
and uniform State practice, along with opinio juris, which may change the rule at this stage.
It must also be recalled that Article 195 of the LOSC explicitly forbids States ‘to transfer,
directly or indirectly, damage or hazards from one area to another or transform one type of
pollution into another’.
Second, humanitarian consideration is the primary basis of the right of vessels in distress.
As already mentioned, the importance of ‘elementary considerations of humanity’ was
affirmed by the ICJ and ITLOS. As implied in the M/V Toledo judgment, there is a good
reason to argue that if entry into port is the only means to prevent an inevitable loss of life,
the coastal State should not refuse to provide refuge to ships in distress.
Third, where a ship in distress is sent back out to sea, very dangerous situations may arise
for both the ship and the environment of coastal States. In this regard, it must be recalled
that the Erika and the Prestige were eventually destroyed, causing substantial pollution to
the offshore environment. Thus there appears to be a general sense that allowing a ship in
distress into a place of refuge would be the best way to prevent environmental damage. In
this respect, it is notable that Article 20 of Directive 2002/59/EC requires the EU Member
States to draw up plans to accommodate ships in distress in the waters under their
jurisdiction. Likewise, the Protocol Concerning Cooperation in Preventing Pollution from
Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea of
2002 also imposes upon the Contracting Parties a duty to define strategies concerning
reception in places of refuge, including ports, of ships in distress presenting a threat to the
marine environment. At the same time, there is also a need for the flag State to make
vigorous efforts to eliminate substandard shipping.

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