Introduction
This article discusses stowaways on board ships and vessels generally. Since time immemorial, stowaways have been an ever-present concern for the international community and particularly the shipping industry. In more recent time, we have seen controversy arise as to the manner in which stowaways are treated, by both ship operators and the authorities concerned. For the master and crew, a case of stowaways on board their vessel is always trying, as difficult decisions need to be taken, which, on the one hand respect the human dignity of the stowaway whilst on the other hand, respect both the law and the security and safety requirements of the vessel concerned. In this article, we explore the legal obligations that come into play in such cases and how stowaways are dealt with under Maltese Legislation.

Stowaways and the shipping industry

Stowaways found aboard commercial vessels make it challenging for the shipping industry from both a practical and legal point of view.[1]

Such incidents are mainly a problem for operators of ships, who are likely to incur economic losses, since these are the ones responsible for arranging and financing the maintenance, disembarkation, and repatriation of the stowaway. Moreover, certain States enforce fines for having stowaways onboard when the vessel arrives in their port and further fines if the stowaway escapes.[2] However, it’s significant to note that these costs are usually covered by Protection and Indemnity (“P&I”) Insurance.

Additionally, delays and diversions of the planned route may ensue, which not only incur more expenses for the ship operator but may potentially damage the cargo. There also lies the risk of cargo contamination. Moreover, the safety of the crew on board is also disputed, especially if stowaways outnumber the crew. Thus, it is evident that stowaways create massive liabilities on the shipping industry and present a risk to the safety and security of the ship.

Legal problems mainly arise when the States involved, these being, the State of embarkation, the State of disembarkation, the flag State of the ship, the State of apparent, claimed or actual nationality/ citizenship or right of residence of the stowaway, and States of transit during repatriation, must decide where to disembark and repatriate the stowaway. This process is never an easy task, it is often a lengthy procedure which is difficult to solve in a timely manner due to the different national legislations of the States involved, thus creating additional difficulties to the shipping industry.

Legal position at international level

The United Nations High Commissioner for Refugees (“UNHCR”) and the International Maritime Organisation (“IMO”) have over the years, established measures to reduce risks of unauthorised persons boarding ships.

At International level, the Convention that governs this subject is the SOLAS Convention[3], which has been signed by 164 states[4] and more specifically the IMO’s Convention on Facilitation of International Maritime Traffic (“FAL Convention”)[5], which has 115 contracting state parties.[6] More recently, the Revised FAL Guidelines were released in 2018.[7] Malta is party to all the above-mentioned Conventions.[8]

Although stowaway incidents have decreased throughout the past few years, proving measures to be effective, there are nonetheless a large number of incidents taking place each year, thus signalling the need for new guidelines to be released. In light of this, the revised FAL Guidelines amending the 1965 FAL Convention were introduced in 2018.[9]  The FAL Convention sets out preventative measures, addresses the handling of stowaways aboard the vessel and provides recommendations on the disembarkation process. Moreover, it also defines a ‘stowaway’ 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 the ship after it has departed from a port, or in the cargo while unloading it in the port of arrival, and is reported as a stowaway by the master to the appropriate authorities.” [10]

Therefore, the main elements which need to be satisfied for a stowaway to be called as such are;

1. The person must have boarded the vessel stealthily;
2. Without attaining the consent of the ship operator;
3. Having been discovered in the midst of the voyage or upon arrival in the next port;
4. Whereby the master reports such person as a ‘stowaway’ to the authorities.

Additionally, the FAL Convention also delves into the main security arrangements which are to be carried out in order to prevent stowaway incidents. It obliges the ship master and crew to conduct thorough searches before leaving a port with the aim of preventing stowaways from boarding.

However, the many successful stowaway occurrences seem to suggest that the searches being carried out are not entirely effective. In fact, when a stowaway succeeds in advancing on the vessel without being noticed by the crew and is discovered or comes out of hiding once the ship is at sail, then additional procedures, listed in the 2018 FAL Guidelines, are initiated. Thus, proving that the 2018 FAL Guidelines are useful in nature especially since they provide more detailed provisions, give definitions of the main terms in question and outline the duties of the ship master and the ship operator. [11]

On this note, the 2018 FAL Guidelines oblige the ship master to order his crew to perform a thorough search of the vessel to ensure that no other stowaways are aboard. The ship master must then question the stowaway and determine a safe port of embarkation, whilst adhering to the non-refoulement principle. Following the discussion with the stowaway, a statement must be drawn up. In this case, language barriers are a common occurrence, therefore communication may be quite tedious. The ship master is to notify the ship operator about the discovery of the stowaway on board the vessel. Furthermore, the ship master is to treat the stowaway in a humanely manner, provide him with accommodation and food and brief him on emergency procedures.

Besides the obligations imposed on the ship master, the ship operator also has several responsibilities, as provided for in the FAL Convention[12] and 2018 Revised Guidelines.[13] The principal obligation of the ship operator is that of communicating the stowaways’ presence on the vessel to the appropriate authorities at the port of embarkation, the next port of call and the flag state. He is also responsible for informing the P&I club. [14] These provisions clearly highlight the importance of cooperation amongst all States.

Stowaway incidents in Malta

Despite the transposition of International Conventions into Maltese law, the position on the ground is somewhat different. Since a number of vessels sail close to the Maltese coastline, this increases the chances of Maltese authorities having to deal with stowaway incidents. Malta’s handling of stowaways has been particularly challenging due to the island’s size and resources. The burning question as to what should be done with the stowaways once they reach the island is always the main point of contention.

The governing national law dealing with stowaway incidents is the Merchant Shipping Act, Chapter 234 of the Laws of Malta, particularly under articles 184 to 189 titled ‘Stowaways and Seamen carried under compulsion’.[15] It is important to point out that the Merchant Shipping Act makes reference to “any ship arriving at any port in Malta with any stowaway on board”, thus one can denote that the law is not only applicable to Maltese Flagged Vessels, but also to any other vessel.

In the case of a stowaway being found aboard a vessel (whether Maltese flagged or not), Transport Malta takes a number of measures and requires extensive information, including, a copy of the crew list, statements from the ship master, copies of the vessel’s logbook, details of procedures adopted by the vessel to prevent stowaways from boarding, date and place of embarkation, details of stowaway and date and place of disembarkation. The ship master must advise if declaration of security had been completed at the previous port, he must also provide a complete list of activities carried out at the previous port and advise on procedures as to how they access the ship, control embarkation, monitor and report security incidents. Lastly, the way forward and intention of management to either carry out evaluation of the incident or not must be divulged.

In the case that a Stowaway is found aboard a Maltese flagged vessel, away from the Maltese Coastline, Transport Malta must:

1. Assist the master/ship operator or the appropriate authority at the port of disembarkation in identifying the stowaway and determining his or her nationality/citizenship or right of residence;
2. Make representations to the relevant authority to assist in the removal of the stowaway from the ship at the first available opportunity;
3. Assist the master/ship operator or the authority (amongst which Consulates and Embassies) at the port of disembarkation in making arrangements for the removal or repatriation of the stowaway; and
4. Report incidents of stowaways to the International Maritime Organization[16]

Although the articles in the Merchant Shipping Act mirror those highlighted in the Conventions mentioned earlier[17], it can be noted that the present legislation lacks the critical elements which are needed to handle stowaway incidents, as our law does not mention the wellbeing of the stowaway and relevant duties of the ship master and ship operator.

One must keep in mind that our law was drafted many years ago, in a very different context to today’s world which is experiencing serious humanitarian issues with mass migration caused by climate change, poverty, corruption and wars. It is clear that the rules set out are antiquated and in need of an update and overhaul as they do not reflect the current situation.

Stowaway incidents apprehended in Malta

A handful of cases have been reported to the media, including the incident which occurred in December 2020 where eight stowaways were found hiding on a ship at the Malta Freeport. Police said that a report was received from crew members, claiming migrants were found aboard. The stowaways joined the ship in Casablanca, Morocco and passed through Spain before reaching Malta and being found.[18] This is not the first time that this has happened, in January 2006, seven Algerian stowaways were intercepted and marched back to their vessels as the Freeport’s security grappled once again with illegal immigrants. The men, aged between 18 and 25, offered no resistance after they tried to enter Malta on board two ships from Algeria. A week earlier, five stowaways were caught at the Freeport leaving a container from aboard a ship. They were immediately rounded up and kept in custody. The illegal immigrants were marched back to the vessels under escort and guarded by the police after the captains signed a declaration admitting the men had left their ships. The arrival of north African stowaways has become a problem, especially during the winter months. “There’s a racket taking place out there, without the knowledge of the ship captains,” a Freeport official said. It’s not unusual for the captain to argue that the immigrants were rounded up on land and demand proof that they had travelled on his ship.

Although we speak a lot of stowaways reaching the Maltese islands, there are also cases whereby such persons try to flee the islands and stow themselves away on vessels at the Malta Freeport in Birzebbuga or at the Marsa Terminal. This was the case in July 2020, whereby a stowaway was arrested in Malta after trying to hide on top of a container on the Sicily Catamaran.[19] This is not a rare occurrence and had also occurred a few weeks earlier with a Sundanese man who attempted to flee to Sicily by hiding under a truck on the same Catamaran.[20] Most of the stowaways leaving the island do so after having escaped detention in Malta. It has been reported that the treatment of migrants in Maltese Detention Centres is not entirely humanitarian, however it is significant to point out that oftentimes when a stowaway is sent back to the country which they fled, they are likely to face torture and death.

Stowaways utilize different techniques to gain access onto a commercial vessel. These may pose as stevedores and more often than not are aided by port officials. Research shows that most stowaway incidents encountered are on board container vessels since the screening of the many containers is not always done thoroughly.

A more recent case is that which occurred in April 2021, whereby a stowaway was found aboard a Maltese flagged vessel. The stowaway boarded the vessel from Senegal on the 1st April, 2021 which had as its final destination Brazil. He pled that he escaped his hometown due to the numerous death threats he was receiving.

Conclusion

Until economic disparities between states are eradicated, unless wars and political oppression are done away with, stowaways will continue to be found on board ships.  For the time being, the problem is here to stay. Since we lack international uniformity and a superstructure at international level to police states does not exist, we will continue to see states taking different positions and adopting different approaches to stowaways, resulting in a maze of uncertainty and with the consequential result of stowaways being caught in legal lacunae.

State cooperation and international effort is essential since ultimately at the heart of the matter lie human beings, who may be desperate to escape after having experienced some form of persecution, as defined under Article 9 of the Qualifications Directive.[21]

The subject of stowaways falls within the larger context of illegal migration and needs to be discussed within such. A balance of considerations must be analysed by States when dealing with this situation, as on the one hand the humanitarian aspect is to be placed at the forefront of discussions whilst on the other hand, the rules and policies regulating illegal migration must be respected. This would at times require practical approaches to be adopted, rather than strictly legal ones, with the view of respecting human dignity whilst not burdening the State in question excessively.

It is the view of the authors that it is through the increase of States ratifying the FAL Convention together with the 2018 FAL Revised Guidelines can legal certainty be attained, since it is these Regulations that deal comprehensively with the situation at hand. A collective effort must be made to decrease disparities in opinions and prompt state cooperation further!

The author would like to thank Giannella Vella, currently an intern at Ganado Advocates, for her support during the preparation of this article.