Insights

Introduction

On the 22 February 2022, Advocate General Rantos (the “AG”) from the Court of Justice of the European Union (hereinafter the “Court” or the “CJEU”) delivered his opinion on 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 terms of the Directive, Port State authorities of Member States (“MS” or “MSs” as applicable) are authorised to carry out the necessary inspections as set out in the Directive on board any ship and crew calling at a port or anchorage of a MS to engage in a ship/port interface.^[2]

The Facts and the Questions for Preliminary Ruling:

Sea Watch, a non-profit humanitarian organisation based in Berlin, which performs search and rescue operations in the international waters of the Mediterranean Sea. The ships utilised by Sea Watch when conducting these rescue operations fly the German flag and are certified by a German recognised classification and certification society as ‘general cargo ships – multi-purpose’.

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.

AG’s Opinion:

The AG noted that in essence, the questions referred by the Referring Court concern (i) the scope of the Directive, (ii) the conditions required for an additional inspection, (iii) the scope of the powers of inspection and (iv) the necessary conditions for the detention of a ship under the Directive.

(A) The Scope of the Directive:

The first question referred to the Court concerned the scope of the Directive to determine whether: (i) the Directive applies to the Ships in Question which, although certified as cargo ships, are operated systematically and exclusively for search and rescue at sea and (ii) whether the activity of those ships falls within the scope of the Directive.

In the AG’s view, the Directive is applicable to the Ships in Question for the following reasons:

• The Directive applies to any ship and its crew calling at a port or anchorage of a MS to carry out a ship/port interface activity. Accordingly, the Ships in Question which are duly registered as cargo ships, perform such ship/port interface activity and the fact that that activity is not carried out at regular intervals does not in any way affect this.
• The Directive specifically excludes ‘government ships used for non-commercial purposes and pleasure yachts not engaged in trade’ from the scope of the Directive. While the Ships in Question are used for non-commercial purposes and to an extent perform activities which are incumbent on the public authorities of Port States, they cannot be assimilated to ‘government ships’. The exclusion of government owned ships from the scope of the Directive finds its origin from the provisions of the United Nations Convention on the Laws of the Sea (“UNCLOS”). Secondly it is clear that these are not ‘pleasure yachts’ since they are registered as multi-purpose cargo ships.

Moreover, the AG believes that this view finds further basis under recital 4 and Article 1 of the Directive which both emphasise the need of improving safety at sea, preventing pollution, and ensuring the living and working conditions on board ships. The conduct of inspections is therefore relevant to ensure that all ships used in maritime transport meet the required international standards irrespective of the activity performed by the ship being inspected. Accordingly, 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.

(B) The conditions required for an additional inspection

The second question referred to the Court concerned the necessary conditions for an additional inspection under Article 11 of the Directive. The AG notes that in terms of Article 11, ships are to be subject to additional inspections by the port State only in the presence of ‘overriding factors’ or ‘unforeseen factors’ including, inter alia, “ships which have been operated in such a way as to present a danger to persons, property or the environment”. The AG maintains that a ship carrying a number of persons exceeding the maximum number that can be carried may, in certain circumstances, present a danger to persons, property or the environment. Such a circumstance may thus constitute an unexpected factor within the meaning of the Directive and justify an additional inspection under Article 11 of the Directive

Ultimately, however, it is up to the Port State to demonstrate, using factual verification, that the vessels in question were operated in such a way as to present a danger to persons. Thus, the fact that a ship has carried, following rescue operations, a number of persons exceeding its maximum capacity, cannot be regarded as an unexpected factor which requires additional inspections. On this point, the AG refers to the obligation to rescue all persons in distress at sea which finds its basis under customary international law and enshrined in the UNCLOS. In such circumstances, the mere fact that the ship carried a number of persons merely greater than its maximum capacity cannot be regarded, in itself, as an ‘unforeseen factor’.

The AG remarked that in the light of the obligation to rescue at sea set out in particular in the UNCLOS, 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. Nevertheless, it cannot be ruled out that such transport of persons in excess of the ship’s capacity may result in danger to persons, property or the environment and this would constitute an ‘unexpected factor’ in terms of the Directive. This is for the Referring Court to determine.

(C) The scope of the powers of a detailed inspection

The AG remarks that in order to determine the extent of port State control, it should be noted, that Article 13(3) of the Directive confers a power of control which necessarily exceeds that of the ‘initial inspection’ provided for in Article 13(1). Therefore such control cannot therefore be limited to the formal requirements laid down in the certificates relating to the classification of the ship by the certification body, but rather concerns the conformity of that ship with all applicable rules on safety, pollution prevention and living and working conditions on board, taking into account the actual condition of the ship and its equipment and the activities actually carried out by it, especially if these differ from those related to its classification.

As submitted by the Italian Government, the fact that the Ship in Question is not operated in accordance with its certifications, constituted an infringement of the requirements relating to operational procedures on board that ship and entail, inter alia, a danger to persons, property or the environment. The AG however emphasised that since there is no classification of ships carrying out search and rescue activities at sea, it cannot be concluded that the mere classification of the Ships in Question as ‘general cargo ships – multi-purpose’ constitutes in itself a ‘clear ground’ for believing that the condition of the ship or its equipment, or its crew, does not meet the ‘requirements of a convention on the subject’, as required in accordance with Article 13(3) of the Directive, unless the systematic use of that ship infringes the rules on its classification.

Accordingly, the power of the port State to carry out a detailed inspection, includes the power to verify that that ship complies with the requirements relating to safety, pollution prevention and living and working conditions on board which are applicable to activities to which the vessel is actually assigned, while taking into account those for which it has been classified.

(D) The detention of a ship under the Directive

As a preliminary point the AG noted that it is for the competent authority is to ensure that any anomaly confirmed or revealed by inspections has been or will be rectified and, where such anomalies present a manifest risk, in particular for safety, the Port State shall ensure that the ship is detained. As already concluded in sub-heading (C), a Port State may ensure compliance with applicable international standards on maritime safety, maritime safety, protection of the marine environment and living and working conditions on board, taking into account the activities actually carried out by the ship

Therefore, the mere fact that a ship carries out search and rescue activity at sea systematically does not exempt that ship from compliance with the requirements applicable to it under international law or EU law and does not prevent that ship from being subject to detention measures under Article 19 of the Directive where it infringes those rules.

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).

^[2] Fishing vessels, warships, naval auxiliaries, wooden ships of a primitive build, government ships used for non-commercial purposes and pleasure yachts not engaged in trade do not fall within the scope of the Directive.