GUIDELINES ON THE ALLOCATION OF
RESPONSIBILITIES TO SEEK THE SUCCESSFUL RESOLUTION OF STOWAWAY CASES
(Adopted on 27 November 1997)
THE ASSEMBLY,
HAVING CONSIDERED the general purposes of the Convention on
Facilitation of International Maritime Traffic, 1965, as amended, and in
particular article III thereof,
NOTING with concern the number of incidents involving stowaways,
the consequent potential for disruption of maritime traffic, the impact such
incidents may have on the safe operation of ships and the considerable risks
faced by stowaways, including loss of life,
RECALLING that the International Convention Relating to Stowaways,
1957, which attempted to establish an internationally acceptable regime for
dealing with stowaways, has not yet come into force,
AGREEING that, for the purposes of this resolution, a stowaway is
defined as a person who is secreted on a ship or in cargo which is subsequently
loaded on the ship, without the consent of the shipowner or the master or any other
responsible person, and who is detected on board after the ship has departed
from a port and reported as a stowaway by the master to the appropriate
authorities,
TAKING INTO ACCOUNT that some stowaways may be asylum-seekers and
refugees, which should entitle them to such relevant procedures as those
provided by international instruments and national legislation,
BEING AWARE that, in the absence of an internationally agreed
procedure for dealing with stowaways, considerable difficulties are being encountered
by shipmasters and shipping companies, shipowners and ship operators in
disembarking stowaways from ships into the care of the appropriate authorities,
APPRECIATING Member Governments' difficulties in accepting
stowaways for examination pending repatriation and then allowing the vessels
concerned to sail,
RECOGNIZING, therefore, 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,
AGREEING that the existence of such guidance should in no way be
regarded as condoning or encouraging the practice of stowing away and other
illegal migration, and should not undermine efforts to combat the separate
problems of alien smuggling or human trafficking,
BELIEVING that, at present, stowaway cases can best be resolved
through close co-operation among all authorities and persons concerned,
BELIEVING FURTHER that, in normal circumstances, through such
co-operation, stowaways should, as soon as practicable, be removed from the
ship concerned and returned to the country of nationality/citizenship or to the
port of embarkation, or to any other country which would accept them,
RECOGNIZING that stowaway incidents should be dealt with humanely
by all parties involved, giving due consideration to the operational safety of
the ship and its crew,
WHILST URGING national authorities, port authorities, shipowners
and masters to take all reasonable precautions to prevent stowaways gaining
access to vessels,
HAVING CONSIDERED the recommendations made by the Facilitation
Committee at its twenty-fifth session,
1. ADOPTS the Guidelines on the Allocation of Responsibilities to
Seek the Successful Resolution of Stowaway Cases, set out in the annex to the
present resolution;
2. URGES Governments to implement in their national policies and
practices the procedures recommended in the annexed Guidelines;
3. URGES ALSO Governments to deal with stowaway cases in a spirit
of co-operation with other parties concerned, on the basis of the allocation of
responsibilities set out in the annexed Guidelines;
4. INVITES shipping companies, shipowners and ship operators to
take on the relevant responsibilities set out in the annexed Guidelines and to
guide their masters and crews as to their respective responsibilities in
stowaway cases;
5. INVITES Governments to develop, in co-operation with the
industry, comprehensive strategies to prevent intending stowaways from gaining
access to ships;
6. REQUESTS the Facilitation Committee to continue to monitor the
effectiveness of the annexed Guidelines on the basis of information provided by
Governments and the industry, to keep them under review and to take such further
action, including the development of a relevant binding instrument, as may be
considered necessary in the light of developments;
7. REVOKES FAL2/Circ.43.
Annex.
GUIDELINES ON THE ALLOCATION OF RESPONSIBILITIES TO SEEK THE SUCCESSFUL
RESOLUTION OF STOWAWAY CASES
1. Masters, shipowners,* port authorities, national
Administrations, and other bodies including security operators all have a
responsibility to co-operate to prevent illegal access to a vessel while it is
in port. However, no matter how effective routine port and ship security is,
there will still be occasions when stowaways gain access to vessels, either
secreted in the cargo or by surreptitious boarding.
________________
* Including any persons or
party acting on behalf of the owner of the vessel.
2. For the purposes of the Guidelines a stowaway is defined as a
person who is secreted on a ship, or in cargo which is subsequently loaded on
the ship, without the consent of the shipowner or the master or any other
responsible person, and who is detected on board after the ship has departed
from a port and reported as a stowaway by the master to the appropriate
authorities.
3. The resolution of stowaway cases is difficult because of
different national legislation in each of the potentially several countries
involved: the country of embarkation, the country of disembarkation, the flag
State of the vessel, the country of apparent, claimed or actual
nationality/citizenship of the stowaway, and countries of transit during
repatriation.
4. There are, however, some basic principles which can be applied
generally. These are as follows:
.1 A recognition that
stowaways arriving at or entering a country without the required documents are,
in general, illegal entrants. Decisions on dealing with such situations are the
prerogative of the countries where such arrival or entry occurs.
.2 Stowaway asylum-seekers
should be treated in compliance with international protection principles as set
out in international instruments* and relevant national legislation.
_________________
* Reference is made to the
provisions of the United Nations Convention relating to the Status of Refugees
of 28 July 1951 and of the United Nations Protocol relating to the Status of
Refugees of 31 January 1967.
.3 The shipowner and his representative
on the spot, the master, as well as port authorities and national
Administrations, should co-operate as far as possible in dealing with stowaway
cases.
.4 Shipowners and their
representatives on the spot, masters, port authorities and national
Administrations should have security arrangements in place which, as far as
practicable, will prevent intending stowaways from getting aboard a ship or, if
this fails, will detect them before a ship arrives at port. Where national
legislation permits, national authorities should consider prosecution of
stowaways for trespassing upon or damaging the property of the shipping
company, or the cargo.
.5 All parties should be
aware that an adequate search may minimize the risk of having to deal with a
stowaway case and may also save the life of a stowaway who may, for example, be
hiding in a place which is subsequently sealed and/or chemically treated.
.6 Countries should admit
returned stowaways with full nationality/citizenship status of that country or
a right of residence.
.7 The country of the
original port of embarkation of a stowaway should normally accept the return of
such a stowaway for examination pending final case disposition.
.8 Every effort should be
made to avoid situations where a stowaway has to be detained on board a ship
indefinitely. In this regard countries should co-operate with the shipowner in
arranging the return of a stowaway to an appropriate country.
.9 Stowaway incidents should
be dealt with humanely by all parties involved. Due consideration must always
be given to the operational safety of the ship and to the well-being of the
stowaway.
5. As a first step in addressing the issue, a framework of the
various responsibilities, rights and liabilities of the parties involved needs
to be identified and agreed. The following allocation of responsibility is
suggested:
.1.1 to make every effort to determine immediately the port of
embarkation of the stowaway;
.1.2 to make every effort to establish the identity, including the
nationality/citizenship, of the stowaway;
.1.3 to prepare a statement containing all information relevant to
the stowaway, in accordance with information specified in the standard document
annexed to these Guidelines, for presentation to the appropriate authorities;
.1.4 to notify the existence of a stowaway and any relevant
details to his shipowner and appropriate authorities at the port of
embarkation, the next port of call and the flag State;
.1.5 not to depart from his planned voyage to seek the
disembarkation of a stowaway to any country unless repatriation has been
arranged with sufficient documentation and permission given for disembarkation,
or unless there are extenuating security or compassionate reasons;
.1.6 to ensure that the stowaway is presented to the appropriate
authorities at the next port of call in accordance with their requirements;
.1.7 to take appropriate measures to ensure the security, general
health, welfare and safety of the stowaway until disembarkation;
.2.1 to ensure that the existence of, and any relevant information
on, the stowaway has been notified to the appropriate authorities at the port
of embarkation, the next port of call and the flag State;
.2.2 to comply with any removal directions made by the competent
national authorities at the port of disembarkation;
.3 Country of first
scheduled port of call after discovery of the stowaway (port of disembarkation)
.3.1 to accept the stowaway for examination in accordance with the
national laws of that country and, where the competent national authority
considers that it would facilitate matters, to allow the shipowner and his
named representative and the competent or appointed P&l Club correspondent
to have access to the stowaway;
.3.2 to consider allowing disembarkation and provide, as necessary
and in accordance with national law, secure accommodation which may be at the
expense of the shipowner or agents, where:
.3.2.1 a case under .3.1 is
unresolved at the time of sailing, or
.3.2.2 national authorities
are satisfied that arrangements have been made and will be effected for the
early return or repatriation of the stowaway by other means (which may be at
the expense of the shipowner or agents), or
.3.2.3 a stowaway's presence
on board would endanger the safe operation of the vessel;
.3.3 to assist, as necessary, in the identification of the
stowaway and the establishment of his or her nationality/citizenship;
.3.4 to assist, as necessary, in establishing the validity and
authenticity of a stowaway's documents;
.3.5 to give directions for the removal of the stowaway to the
port of embarkation, country of nationality/citizenship or to some other
country to which lawful directions may be made, in co-operation with the
shipowner and his nominated representative;
.3.6 in co-operation with the shipowner and his nominated
representatives to discuss repatriation or removal arrangements or directions
with the master/shipowner or their appointed representatives, keeping them
informed, as far as practicable, of the level of detention costs, while keeping
these to a minimum;
.3.7 to consider mitigation of charges that might otherwise be
applicable when shipowners have co-operated with the control authorities to the
satisfaction of those authorities in measures designed to prevent the
transportation of stowaways;
.3.8 to issue, if necessary, in the event that the stowaway has no
identification and/or travel documents, a document attesting to the
circumstances of embarkation and arrival to enable the return of the stowaway
either to his country of origin, to the country of the port of embarkation, or
to any other country to which lawful directions can be made, by any means of
transport;
.3.9 to hand over the document to the transport operator effecting
the removal of the stowaway;
.3.10 to take proper account of the interests of, and implications
for, the shipowner or agent when directing detention and setting removal
directions, so far as is consistent with the maintenance of control, their
duties or obligations to the stowaway under the law, and the cost to public
funds;
.4 The country of the
original port of embarkation of the stowaway (i.e. the country where the
stowaway first boarded the ship)
.4.1 to accept any returned stowaway having nationality/citizenship
or right of residence;
.4.2 to accept, in normal circumstances, a stowaway back for
examination where the port of embarkation is identified to the satisfaction of
the authorities of the receiving country;
.4.3 to apprehend and detain the stowaway, where permitted by
national legislation, if the stowaway is discovered before sailing either on
the vessel or in cargo due to be loaded;
to refer the intended stowaway to local authorities for
prosecution, and/or, where applicable, to the immigration authorities for
examination and possible removal: no charge to be imposed on the shipowner in
respect of detention or removal costs, and no penalty to be imposed;
.4.4 to apprehend and detain the stowaway, where permitted by
national legislation, if the stowaway is discovered while the vessel is still
in the territorial waters of the country of the port of his embarkation, or in
another port in the same country (not having called at a port in another
country in the meantime) no charge to be imposed on the shipowner in respect of
detention or removal costs, and no penalty to be imposed;
.5 The apparent or claimed
country of nationality/citizenship of the stowaway
.5.1 to make every effort to assist in determining the identity
and nationality/citizenship of the stowaway and to document the stowaway
accordingly, once satisfied that he or she holds the nationality/citizenship
claimed;
.5.2 to accept the stowaway where nationality/citizenship is
established;
.6 The flag State of the
vessel
.6.1 to be willing, if practicable, to assist the master/shipowner
or the appropriate authority at the port of disembarkation in identifying the
stowaway and determining his or her nationality/citizenship;
.6.2 to be prepared to make representations to the relevant
authority to assist in the removal of the stowaway from the vessel at the first
available opportunity;
.6.3 to be prepared to assist the master/shipowner or the
authority at the port of disembarkation in making arrangements for the removal
or repatriation of the stowaway;
.7 Any countries of transit
during repatriation
to allow, subject to normal visa requirements, the transit through
their ports and airports of stowaways travelling under the removal instructions
or directions of the country of the port of disembarkation.