The Sea Samaritans

A shipmasters’ obligation when rendering assistance on the high seas.

A luxury cruise ship, ‘The Star Princess’ recently made a splash in international maritime news for all the wrong reasons. Immediately after the incident various organisations reported a fishing vessel had signalled the cruise ship and three bird watching passengers, who had informed the crew that they saw a fishing boat and its distress signal. However, the captain’s log told a different story, saying that the cruise ship had been asked to alter course to avoid damaging the fishing nets, and that the three fishermen were signalling thanks. Of the three men that were alive when the cruise ship made contact, only one survived.

This incident raises the important legal question: what are a masters’ legal obligations regarding a vessel in distress? Some would be surprised that the development of an international obligation is reasonably recent in maritime history.

The old position in England is eloquently put in Scaramanga v Stamp, in 1880, where Chief Justice Cockburn proclaimed:

The impulsive desire to save human life when in peril is one of the most beneficial instincts of humanity, and is nowhere more salutary in its results than in bringing help to those who, exposed to destruction from the fury of winds and waves, would perish if left without assistance. To all who have to trust themselves to the sea, it is of the utmost importance that the promptings of humanity in this respect should not be checked or interfered with by prudential considerations as to injurious consequences, which may result to a ship or cargo from the rendering of the needed aid.

In essence, Cockburn CJ does not impose an obligation to provide assistance and qualifies the circumstances of rendering assistance as being where there is no possibility of damage to the rescuing ship or its cargo.

At the same time as the English courts made their decision, French and German courts were far more prescriptive in their application of laws to render assistance and were handing down criminal sanctions for a failing to do so. These different positions highlighted the difference between common law states, such as England, Canada, Australia and the codified states of continental Europe.

As the international community were split on this issue it was realised that a common position would benefit all and international talks were held in 1885 about applying universal obligations of assistance, but they did not receive great support. Until in 1910 and this all changed with the most infamous maritime disaster, the sinking of the unsinkable Titanic, which shocked people around the world and provided political motivation for an international obligation. In that year, The Brussels Convention on Salvage was signed and the essential obligation has remained the same for over a hundred years:

Every master is bound, so far as he can do so without serious danger to his vessel, and persons thereon, to render assistance to any person in danger of being lost at sea.

The current version of the obligation is written in the International Convention on Safety of Life at Sea or SOLAS. It mimics the old 1910 obligation:

The master of a ship at sea which is in a position to be able to provide assistance on receiving a signal from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance.

However, the international agreements are not law themselves, but rather, they are an agreement between countries to implement local laws that reflect these obligations. So for example if your vessel is under a German flag the master will be bound by the Handelsgesetzbuch and the Bundesgesetzblatt or if the flag is Irish the law is in The Merchant Shipping (Salvage and Wreck) Act. And while the provisions largely reflect the international agreements each jurisdiction have their own subtleties.

In Australia the principle law is in the Navigation Act 1912 (Cth), which provides that if a master doesn’t render assistance when it is reasonable to do so he or she faces up to ten years in prison. If a master does not give assistance he or she must record in his or her log book why he or she chose not to. And the reasons not to give assistance can be many and varied depending on the situation.

The other issue that adds complexity is the vagueness of the drafting. What does “provide assistance” mean? Well, it seems that the law was designed to be flexible so each situation can be assessed by the master of the ship. So it may mean that crewmen are sent over to the vessel in distress to attempt to repair it. It could mean giving supplies or towing the vessel. And in some cases it could mean that you have to take people on board and deliver them to a safe harbour.

Sometimes offering ‘assistance’ does not require too much effort. It can be as simple as notify the relevant costal authority. However, an example of where ‘assistance’ turned out to be very onerous is the incident of the Tampa. In this case, the Norwegian cargo ship took on board 438 people from a vessel in distress in the Indian Ocean. The master of the Tampa started to make way to an Indonesian port, but was confronted with threats from the refugees to throw themselves off the ship, if the master did not change course and head for a western county. The Master then decided to head for Christmas Island, an Australian jurisdiction. But, the Tampa was denied access to Australian waters by the Australian Government under political pressure to limit refugees seeking asylum by boat. After two days, the Tampa was running low on supplies and it sent out a mayday call entering Australian waters despite the government’s refusal. The vessel was boarded by Navy personal. It took eight more days to negotiate an outcome before the 438 people left the ship. Overall, it was a very costly exercise and probably the master of the Tampa went beyond his obligations. Nevertheless, what could seem like a simple event can turn out to be anything but.

Up to this point we have only discussed the rules relating to the assistance obligation. But the law has a dual nature. There are the rules, that is the conventions and local statues that are written down. And then there is the other side of law, the enforcement. This is the process of implementing and upholding those rules. A former naval officer and law academic, Arthur Alan Severance, looked into the enforcement of the maritime assistance obligation and found was that these maritime obligations are rarely enforced.

The first issue is that it is hardly ever reported. Rarely will a ship in distress be able to identify another ship failing to give assistance. The Star Princess story mentioned at the start of the article only came to light because the ship’s passengers that first saw the fishing boat researched the boat when they returned home. Eventually they contacted the only survivor to confirm that he was on the boat they saw, not a usual situation.

The next issue is that states themselves are often not willing to convict people of the offence. This is often because ships are under flags of convenience belonging to countries without sufficient finance resources or legal infrastructure to conduct a successful trial.

And even in a civil case where one person is suing another it is hard to enforce the obligation. This is because the ship owners with deep pockets are immune for liability where a ship master fails to render assistance. So the cost of litigation is often not worth risking trying to recover money from the master.

Moreover, even if all these previous hurdles are overcome the obligation is at best vague. It is often dependant on the master’s discretion and because there can be so many reasons to not to render assistance it can cause great difficulties at trial to prove that the obligation has been breach.

Nevertheless, if a master fails to give assistance to a vessel in distress, he or she could be open to civil and criminal liabilities. And they are just the legal consequences. Passing a vessel in distress can lead to the loss of life and that decision can never be taken lightly.