The mere fact that a vessel, such as those of the German NGO Sea Watch, is used exclusively to search for and rescue people at sea does not exempt it from compliance with international or EU law, Advocate General Athanasios Rantos ruled in his opinion on Tuesday 22 February (cases C-14&15/21).
The German NGO Sea Watch is of the opinion that the detailed inspections carried out on two vessels that disembarked persons rescued at sea in Sicily by the harbourmasters of two Sicilian ports, which led to the detention of the vessels, go beyond the powers attributed to the port State by Directive 2009/16 interpreted in light of the obligation to render assistance at sea, enshrined in customary and conventional international law.
However, in his conclusions, Mr Rantos is of the opinion that Directive 2009/16 applies to Sea Watch vessels which, while being registered as general cargo vessels by the flag State, are engaged in the activity of search and rescue of persons at sea.
The Directive applies to any ship and its crew calling at a port of a Member State to perform a ship/port interface activity. Among ships used for non-commercial purposes, it excludes only government ships and recreational craft. This is, according to the Advocate General, confirmed by the objectives of EU law, which aims to improve maritime safety as well as living and working conditions on board and to better protect the environment.
Furthermore, Mr Rantos considers it obvious that a ship that systematically carries more than the maximum number of persons allowed to be carried according to its certificates may, in certain circumstances, present a danger to persons, property or the environment. Such a circumstance is, in principle, likely to constitute an “unforeseen factor” under the Directive and justifies an “additional inspection” of the ship concerned by the port State.
However, this is a factual, case-by-case verification which is the responsibility of the national court, which must assess the risks inherent in carrying more people than permitted, while also taking into account the obligation to rescue at sea under customary international law.
With regard to the scope of port State control, Mr Rantos recalls that a more detailed inspection is carried out when, following an initial inspection, there are “clear grounds” for believing that the condition of the ship does not meet the requirements of an applicable international convention. Such control concerns the compliance of the ship with all applicable international conventional rules on safety, pollution prevention, and living and working conditions on board, taking into account the actual condition of the ship and its equipment as well as the activities actually carried out by the ship and those for which it has been classified.
The Advocate General acknowledges that there is no classification of vessels engaged in maritime search and rescue activities under EU or international law. However, he points out that the fact that a ship is not operated in accordance with its certifications may constitute a breach of the requirements relating to the operational procedures on board that ship and may, in particular, involve a danger to persons, property or the environment.
Mr Rantos concluded that the port State can ensure compliance with the applicable international conventions and EU law on maritime safety, maritime security, protection of the marine environment, and living and working conditions on board by taking into account the activities actually carried out by the ship, provided that such control does not impinge on the competence of the flag State to classify the ship or on compliance with the obligation of rescue at sea.
See the conclusions: https://aeur.eu/f/h4 (Original version in French by Mathieu Bion)