Section 8 Stowaways and refugees

3.8.1 General

In addition to the compensation for reasonable and additional costs incurred by the presence on board of stowaways, persons saved at sea or refugees, the Member also receives active assistance from the Club to disembark them.

3.8.2 Stowaways

3.8.2.1 Definition

Attempts have been made to solve some of the problems posed by stowaways through an international convention, the 1957 Brussels Convention Relating to Stowaways. The convention, however, has not yet been ratified by a sufficient number of states and has not, therefore, come into force. It contains the following definition of a stowaway:

“A person who, at any port or place in the vicinity thereof, secrets himself in a ship without the consent of the shipowner or the Master or any other person in charge of the ship and who is on board after the ship has left that port or place”.

Recognising the need to establish practical and comprehensive guidance on procedures to be followed by all the authorities and persons concerned in order that the return or repatriation of a stowaway may be achieved in an acceptable and humane manner, the International Maritime Organisation (IMO) adopted a resolution in 1997, A.871(20) – Guidelines on the allocation of responsibilities to seek the successful resolution of stowaway cases. The position has improved in most ports by the introduction of the International Ship and Port Facility Security Code (ISPS) in 2004.

3.8.2.2 What to look for

The presence of a stowaway on board causes a number of problems such as: the cost of maintenance and repatriation; a potential liability for fines; possible danger to the ship and the people on board. The administrative hurdles that have to be overcome to get the stowaway off the ship may be considerable. Solving these problems requires close co-operation between the Club and the Member’s staff ashore and on board.

When a stowaway has been found, the Master should search the ship for more. If one has been able to sneak on board undetected, others may have been able to do the same. Experience shows that there is often more than one stowaway from the same port.

The stowaway and the surroundings where he was found should be searched for documents or other belongings which could confirm or give a clue as to his identity, such as a passport, seafarer’s book, identity or social security card. Documents found should be kept by the Master in a safe place for future reference.

The stowaway should be questioned in order to verify his identity in preparation of his repatriation. The following details should be obtained:

1. Full name
2. Nationality
3. Postal and residential, permanent or last address
4. Date and place of birth
5. Name, date and place of birth of either or both parents or other next of kin including their postal and residential addresses

These details, including particulars of any documents found that confirm the stowaway’s identity should be forwarded immediately to the owner’s head office and to the ship agent in the next ports of call. The Member should urgently inform the Club. A suggested questionnaire for stowaways is available on the Club’s website.

3.8.2.3 Efforts to get a stowaway off the ship

Upon receipt of a notification, the Club will start the efforts to disembark the stowaway. This often requires difficult and time consuming consultations with the immigration authorities in the ports at which the ship is scheduled to call. It is not always a realistic assessment that such consultations will be successful in the ship’s first port of call. The aim may have to be set at a port further along the ship’s itinerary. It is of importance that the Club is given the full itinerary as far as can be predicted in order to concentrate the efforts on destinations where the authorities may be favourably disposed to let the stowaway off the ship for repatriation.

The Club’s correspondent who conducts the consultations with the authorities will state as early as possible what additional details may be required to get permission for the stowaway to disembark and to obtain travel documents such as passport, visa, immigration permit or identification documents. Such details are usually:

1. Passport size photos of the stowaway.
2. A full set of fingerprints.
3. An affidavit sworn by the stowaway as to his identity, the place and method of embarkation and the motive for stowing away.
4. An extract from the ship’s deck log with full details of the discovery of the stowaway, his identity etc.

The formalities to be observed when producing the information listed under 1-4 above and any additional evidence needed will be specified by the Club’s correspondent according to the requests of the authorities in the planned port of disembarkation.

To meet the requirement under 4 above, it is important that entries are made regularly in the deck log for as long as the stowaway remains on board. Such entries are also essential to explain the stowaway’s presence on board to authorities in any intermediate ports of call. A full log extract is required to substantiate a claim for compensation from the Club under this section.

While the stowaway remains on board, the immigration authorities in all ports of call should be informed of his presence and of his status as a stowaway. Failure to inform the authorities properly may result in fines against the ship. Although such fines may be covered under Rule 7 Section 6, 1. (b), the expense should be avoided so as to protect the Member’s record.

3.8.2.4 Political complications

The reason why a person stows away on board a ship may be political. If so, he may wish to conceal his identity by destroying identification documents and giving misleading information. Such complications will make it difficult to find a country willing to grant him permission to leave the ship.

The Club, its representatives and lawyers will endeavour to solve the problems as fast as possible. It may be necessary to alert the embassies of the countries concerned and the United Nations High Commissioner for Refugees (UNHCR) with head office in Geneva and with regional offices in many countries.

3.8.2.5 Stowaways are not crew members

Masters sometimes sign on a stowaway as a crew member in the hope of avoiding the costs for guards and watchmen, or that it might be easier to sign him off as a seafarer than to land him as a stowaway. The Club advises strongly against any such practice. Firstly, the ship may have fines imposed if the authorities discover the true status of the stowaway and find that they were deliberately misled by the ship. Secondly, by temporarily upgrading a stowaway to a crew member, the Member may assume much wider liabilities in case of injury, illness or death. Furthermore, such liabilities may not qualify for cover under Rule 3 Section 1, as the definition of a crew member under Rule 1 implies that there should be a contract approved by the Club for service and not for disguise.

The Club also strongly recommends against using stowaways for any kind of work on board as that may also have adverse and unwanted consequences.

3.8.2.6 Detention of stowaways

As indicated, the immigration authorities in the vessel’s ports of call may require a stowaway to be confined to a locked cabin. Guards may have to be employed to prevent him from escaping and entering the country illegally. A stowaway may even be taken off the ship temporarily to be placed in jail or other custody for the duration of the ship’s call. The costs may be charged to the ship. They are recoverable under this section. It is a requirement, however, that guards should be supplied by a security firm approved by the Club’s local correspondent.

3.8.2.7 Maintenance and repatriation

While the stowaway remains on board, until the formalities for his disembarkation have been put in place, the ship has to care for his maintenance. Costs may be reimbursed under this clause on a per diem basis equal to the agreed daily maintenance costs for crew members.

When the stowaway is allowed to leave the ship, the Club’s correspondent at the port of disembarkation will have taken necessary precautions to meet the requirements of the local immigration authorities. Pending repatriation, the stowaway may have to stay in a hotel, perhaps under guard. He will be provided with tickets and with guards or escorts on the return trip, if required by immigration or airline security regulations. Any such necessary costs are compensated under this section.

Running expenses of the ship are not compensated, nor are loss of time, freight or other revenue according to Rule 11 Section 2 (j).

As a condition for allowing a stowaway to disembark, the local authorities may request a guarantee or other security to cover the costs of detention and repatriation. In so far as the Club is concerned, any such request is subject to Rule 12, according to which it is in the discretion of the Club as to whether to provide security.

3.8.2.8 Diversion to land stowaways

A Member may decide to let the ship make a diversion if an opportunity presents itself to land a stowaway on the way. The costs of such a diversion can be covered under Rule 3 Section 11 if undertaken to secure treatment where the stowaway is injured or falls ill while on board or where otherwise agreed by the Club. Diversion just to get him off the ship may amount to an unjustified deviation. Should the ship run aground and her cargo be damaged or lost during an unjustified deviation, the Member may become strictly liable without limitation for a wide range of claims. Cover for such deviations is excluded under Rule 4 Section 7.

A Member who plans a diversion to land a stowaway should contact the Club well in advance to discuss the position and to obtain the Club’s approval and advice. Some costs of an approved diversion not constituting an unjustified deviation may be compensated under Rule 8 Section 2 or Rule 3 Section 11. The approval of a Charterer may also have to be obtained to avoid the risk of being in breach of the charterparty terms.

3.8.2.9 Stowaways in containers

There have been an increasing number of cases during recent years of stowaways hiding in containers prior to loading. In such cases, the question arises as to who should be responsible ultimately for the costs and expenses of repatriating the stowaways: the Owners or the Charterers? The Owner is normally prevented from checking the contents of a container prior to loading. The Owner’s responsibility is in respect of the ship itself and before departure it is customary for the crew to search the ship for any stowaways. Likewise, it is the Charterers who are in control of the employment of the vessel and who are in a better position to prevent stowaways gaining access to containers. As a result, at its meeting in Singapore on 31 May 1993, BIMCO’s documentary committee decided to adopt a clause which established a contractual responsibility between the Owners and the Time Charterers with respect to stowaways. The clause was revised subsequently by BIMCO in 2009 and forms part of the NYPE 93 (clause 41) as well as the NYPE 2015 (clause 42). The Club strongly recommends Members also to incorporate the clause in all other time charterparties.

3.8.2.10 Crew complicity

Investigations may reveal that a stowaway was helped to hide on board by a crew member or was concealed in his cabin. If practically and legally possible, the costs incurred by the Member should be recovered partly or fully from the responsible party, leaving the balance to be compensated by the Club under this clause.

3.8.2.11 Liability in tort

It appears from the wording of this section that the cover is restricted to expenses incurred as a result of the ship having stowaways on board. Should a claim be filed against the Member because a stowaway was injured, fell ill or died in circumstances that would make the Member legally liable by negligence (in tort), cover is provided under Rule 3 Section 7.

Stowaways may cause damage to the ship, its equipment or cargo carried on board. Damage to the ship or equipment belonging to the Member, or a third party, is excluded from cover. Damage caused to cargo carried on board and liability so imposed upon the Member is covered under Rule 4 Section 1.

3.8.2.12 Preventive measures

Unnecessary trouble, costs and delay can be avoided if stowaways are prevented from boarding the ship in the first place. Certain areas or ports are notorious for stowaways and require increased vigilance on board. Each economic crisis and political upheaval produces its own crop of stowaways. The pattern may change from one year to another. Upon request the Club will provide Members with updated information from representatives in ports or areas where the vessel may call.

Alertness of the ship’s crew on deck and in holds may prevent people sneaking on board and hiding. Reliable guards should be posted at the gangway and on Ro/Ro ships at each open ramp. In most ports, longshoremen and other people who are bona fide visitors on the ship carry or can be provided with identification cards or tags which they should wear so as to be easily visible.

Other ways to board the ship are via the mooring lines, from the outboard side of the ship and in containers, whether sealed or empty. To eliminate such possibilities, security has to be tightened up in the cargo handling routines and in the port area. Suitable protective measures can be discussed with the local Club correspondent, the ship agent and local authorities.

A search of the ship and of the cargo holds should be made before departure. The crew should be briefed on the disadvantages to the ship and its complement in having stowaways on board. They should be encouraged to report anything that looks suspicious.

Stowaways are often unaware of the hazards on board a ship. They may hide in places which would seem highly unsuitable such as reefer holds, rudder trunks, ventilation fan shafts, funnels and cargo tanks. Such areas should not be overlooked when the ship is searched.

The costs of carrying out such searches are regarded as operational running expenses. They are not compensated.

3.8.3 Persons saved at sea

Persons saved at sea may be survivors in lifeboats or otherwise after marine accidents. The cover is for costs reasonably incurred to save and land them and for their care and maintenance whilst on board. For such persons there is unlikely to be any obligation on the Owner of the saving ship to arrange and pay for their repatriation. Only in exceptional cases should there be difficulties in obtaining landing permission. Still, Members are recommended to inform their ship agent in the next port of call urgently and to notify the Club in order for the Club correspondent to liaise with the ship agent to protect the Member’s interests.

Diversion costs are recoverable under Rule 3 Section 11 only if the diversion is reasonably undertaken to treat injured or sick persons saved at sea and following the Club’s approval.

Liability, if any, for injury, illness or death of such persons whilst on board the entered ship is covered under Rule 3 Section 7.

The difference between the cover under this section and that of Rule 3 Section 9 is that the latter covers salvage awards to save the lives of persons on board the entered ship, whereas this section covers the Member’s costs for having persons saved at sea, on board. Therefore, this section does not cover running costs for the entered ship while saving life from or standing by another ship in distress, nor any loss of time, freight or revenue that result, which follows from Rule 11 Section 2 (j). Such costs or loss of time or freight should be claimed from the ship assisted and may be compensated by its Club.

All actions should be recorded in the deck log to substantiate a claim against the Owner or underwriter of the ship assisted. A log extract is required for the Member to obtain compensation from the Club for his expenses.

3.8.4 Refugees

3.8.4.1 Refugee claim characteristics

Whereas persons saved at sea are victims of a marine incident, for the purpose of this section refugees are those who leave their country for political or economic reasons and end up in distress at sea. Refugees saved may be considerable in number, with increased problems and costs to manage their care and maintenance while on board. In countries that neighbour the sea lanes where refugees are frequently found, landing arrangements may be strained to the limit. For political reasons, the presence of refugees on board may cause severe problems for the Member in obtaining permission from the immigration authorities to allow them to disembark.

3.8.4.2 Compensation by national law

In order for the international community to promote and support the rescuing of refugees at sea, measures have been taken to reduce the inconvenience to shipowners involved. This is achieved by making it easier to get the refugees off the ship and to compensate costs incurred.

Some countries have undertaken to compensate shipowners sailing under their national flag for expenses relating to rescue, maintenance and disembarkation of refugees. The Club will advise Members whether any such national compensation scheme is applicable to refugees rescued by the entered ship. It is important that Members avail themselves of any such opportunity.

3.8.4.3 UNHCR’s practical guidelines relating to stowaway asylum-seekers

The United Nations High Commissioner for Refugees (UNHCR) may render assistance in reducing delays to land refugees. The policy of UNHCR with regard to stowaway refugees and those rescued at sea is outlined in various documents including global reports, global appeals and the 1951 Refugee Convention.

In order to prevent delays, a Member should immediately contact the Club when refugees have been rescued. The Club will assist the Member in solving the formalities in connection with the disembarkation through its network of correspondents.