Insights

On the 1^st of August 2022, the Grand Chamber of the Court of Justice (the “Court”) delivered its judgement on the joined cases C-14/21 and C-15/21^[1], following a request by the Regional Administrative Court for Sicily, Italy (the “Referring Court”), in relation to Directive 2009/16 on Port State Control (the “Directive”) as transposed into Italian law. In these cases, Sea Watch conducted rescue operations in the summer of 2020, and disembarked the persons rescued at sea in the ports of Palermo and Empedocles respectively. Following these rescue operations, the ships involved, namely Sea Watch 3 and Sea Watch 4 (the “Ships in Question”), were subject to cleaning and disinfection procedures and subsequent inspections on board by harbour masters in accordance with the provisions of the Directive.

The Italian authorities deemed it necessary to conduct detailed inspections since the Ships in Question were not certified to conduct similar operations and had taken on board a number of persons in excess of what corresponded to the safety certificates of those ships. When conducting the inspections, the Italian authorities, identified a number of technical and operational deficiencies which were regarded as creating a clear risk to safety, health or the environment and as being of such gravity as to justify the detention of the Ships in Question in accordance with Article 19 of the Directive.

Sea Watch brought two actions before the Referring Court, seeking, inter alia, the annulment of the notices of detention claiming the measures adopted by the Italian authorities exceeded the powers conferred on Port States by the Directive. The Referring Court noted that there is doubt as to the proper framework applicable to ships operated by humanitarian non-governmental organizations for the purpose of carrying out search and rescue at sea. Therefore, it referred the matter to the Court for a preliminary ruling.

In the opinion of Attorney General Rantos, which was reported in a law report published in this newspaper on the 2^nd March 2022, the AG primarily remarked that the fact that the Ships in Question systematically carry out search and rescue activities at sea, for non-commercial purposes, cannot, in itself, exempt those ships from the powers of the port State, in particular as regards checks on compliance with international safety standards, pollution prevention and living and working conditions on board and therefore the provisions of the Directive namely those relating to inspections (Article 11 and Article 13) and that relating to detention (Article 19) are also applicable to the Ships in Question. AG Rantos held Article 11 of the Directive must be interpreted as meaning that the mere fact that a ship has carried, following rescue operations at sea, a number of persons exceeding its maximum capacity, cannot in itself be regarded as a ‘overriding factor’ or an ‘unforeseen factor’ requiring an additional inspection.

Following the opinion of the AG, the Court held that the ships subject to the Directive include those which are classified and certified as cargo-ships by the flag State, even so, if operated by humanitarian organisations. This would still be the case if the vessels are used exclusively for search and rescue operations of persons in distress at sea. The Court said that the Directive is applicable, to any ship ‘located in a port, in an anchorage or in waters within the jurisdiction of a Member State and is flying the flag of another Member State or of a non-Member State, without being covered by one of the exceptions listed in Article 3(4) of that directive’.

The Court reiterated that the objective of the Directive is to increase compliance with the rules of international law and EU legislation relating to maritime safety and security, protection of the marine environment and on-board living and working conditions. To that end, the Directive is designed, more specifically, to enable the European Union and Member States to ensure that ships subject to the jurisdiction of the port Member State comply with the provisions of various international conventions including the Safety of Life at Sea Convention (SOLAS), to which all the Member States of the European Union are a party to. In addition, the Court referred to the duty to render assistance enshrined in United Nations Convention on the Laws of the Sea (“UNCLOS”), which is binding on the European Union and has primacy over EU secondary legislation. Pursuant to this duty, every State must require any master of a ship flying its flag to render assistance to persons in danger or distress at sea, in so far as he or she can do so without serious danger to his or her ship, the crew or the passengers, and in so far as such action may reasonably be expected of him or her. On this basis the Court held where the master of a ship flying the flag of a State that is a party to the SOLAS Convention has implemented the duty to render assistance at sea, neither the coastal State which is also a party to that convention nor the flag State can make use of their respective powers to ascertain whether the rules on safety at sea have been complied with in order to verify whether the presence of those persons on board may result in the ship in question infringing any of the provisions of SOLAS.

The Court also had to determine whether those ships classified as cargo ships which systematically carry out search and rescue activities (such as the Ships in Question) which results in transporting a number of persons exceeding their carrying capacity in accordance with their classification certificates should be subject to additional inspections. The Court emphasised the scope of the Directive which is that of ensuring compliance with the rules of international law and EU legislation relating to maritime safety and security, protection of the marine environment and on-board living and working condition. The Court noted that when determining whether a more detailed inspection is required, account may be taken, inter alia, of the fact that certain ships are, in practice, being systematically used for activities relating to the search for and rescue of persons in danger or distress at sea, despite having been classified and certified as cargo ships by the flag State. Nevertheless, the Court held that it is for the port State to report the detailed legal and factual elements capable of establishing the reasons why that fact gives rise, on its own or together with other elements, to a danger to health, safety, on-board working conditions or the environment. The port State however does not have the power to demand proof that those ships hold certificates other than those issued by the flag State or that they comply with all the requirements applicable to another classification.

On the final question relating the detention of ships which are found to pose a threat to the safety, health or the environment, the Court highlighted the fact that port state authorities may not detain a ship unless any deficiencies identified during the inspection of ships pose a clear threat to safety, health or the environment. Therefore, a detention cannot be ordered merely ordered on the ground that an inspection revealed that a ship had been operated in a manner posing a danger to persons, property or the environment. It is also necessary for that State to establish in any given case, first, that such a danger or future risk is a clear hazard and, second, that the deficiencies giving rise to that danger or risk, either individually or together, make the ship concerned unseaworthy. On this matter it is for the Referring Court to verify whether the competent authorities of the port State made such assessments when they ordered that the Ships in Questions be detained.

The Court held that where it is established that ships which are, in practice, being systematically used for activities relating to the search for and rescue of persons in danger or distress at sea, despite having been classified and certified as cargo ships by the Flag State, have been operated in a manner posing a danger to persons, property or the environment, a Port State may not make the non-detention of those ships or the lifting of such a detention subject to the condition that those ships hold certificates appropriate to those activities and comply with all the corresponding requirements. By contrast, that State may impose predetermined corrective measures relating to safety, pollution prevention and on-board living and working conditions, provided that those corrective measures are justified by the presence of deficiencies which are clearly hazardous to safety, health or the environment and which make it impossible for a ship to sail under conditions capable of ensuring safety at sea. Such corrective measures must, in addition, be suitable, necessary, and proportionate to that end. Furthermore, the adoption and implementation of those measures by the port State must be the result of sincere cooperation between that State and the flag State, having due regard to the respective powers of those two States.

The author wishes to thank Marta Zammit, an Intern at Ganado Advocates for her support during the preparation of this article.

This article was first published in the Malta Independent.

^[1] Sea Watch eV vs Ministero delle Infrastrutture e dei Trasporti, Capitaneria di Porto di Palermo (C-14/21) Ministero delle Infrastrutture e dei Trasporti, Capitaneria di Porto di Porto Empedocle (C-15/21).