Port State inspections of Sea Watch vessels used exclusively for rescuing people at sea comply with EU law, but the port State must demonstrate the existence of a clear risk to safety, health or the environment in order to adopt detention measures, the Court of Justice of the European Union ruled in early August (cases C-14&15/21).
The German NGO Sea Watch considered the detention measures taken by the harbour masters’ offices of the Sicilian ports of Palermo and Porto Empedocle against two ships that disembarked people rescued at sea in 2020 to be excessive, in relation to the Port State Control Directive (2009/16) and interpreted in the light of international law.
The Convention on the Law of the Sea (EU Council Decision 98/392/EC) requires assistance to be given to persons in distress at sea. The International Convention for the Safety of Life at Sea stipulates that persons rescued at sea are not to be taken into account when verifying compliance with safety at sea regulations. The number of persons on board, even if it is far in excess of the permitted number, is therefore not in itself a reason for an inspection.
Based on the opinion of the Advocate General (see EUROPE 12897/24), the Court held that the Directive is applicable to any ship in a port or in territorial waters under the jurisdiction of a Member State flying the flag of another Member State.
The port State therefore has the power to inspect a ship for compliance with safety at sea rules provided that it demonstrates the existence of serious indications of a danger to health, safety, working conditions on board or to the environment. It is the responsibility of the Administrative Court for Sicily to ensure that these requirements are met.
In demonstrating the existence of serious indications of danger, the port State may take account of the fact that ships classified and certified as cargo ships by the flag State are, in practice, being systematically used for activities relating to the rescue of persons at sea. However, it does not have the power to demand proof that those ships hold certificates other than those issued by the flag State.
Furthermore, if the inspection reveals the presence of deficiencies, the port State may adopt corrective measures, which must be suitable, necessary and proportionate. But the port State may not make the lifting of the detention of a ship conditional upon the ship having certificates other than those issued by the flag State.
See the judgment: https://aeur.eu/f/2s1 (Original version in French by Mathieu Bion)