In distress

Posted on Apr 28, 2020 | 0 comments


There have been a few things happen during the current Covid19 outbreak which have made me ponder the underlying legal issues. As a result, I was very interested when I read Professor Natalie Klein’s (UNSW academic) article in the Conversation about international law obligations in respect of cruise ships. That article has inspired this post.

Like many issues, the Ruby Princess saga is more complicated that it might first appear. On one hand, Australia has (through the Navigation Act and Marine Order 11) implemented the Maritime Labour Convention. That means that seafarers (on all ships in our territorial waters) who are in need of immediate medical care are to be given access to onshore medical facilities. This explains the enthusiasm of the authorities to get the ship out of our territorial waters.

That seems clear enough, but there’s more. Australia as a sovereign state can generally control which vessels enter its ports. There is an exception to this rule which allows vessels in distress to dock. There is apparently an exception to the exception if a ship poses “a serious and unacceptable safety, environmental, health or security threat” (like in a pandemic for instance?). It’s also not clear to me how the Biosecurity Act might affect that obligation.

But what does distress mean? There is some early nineteenth century common law that it means imminent danger of a kind that would produce “on the mind of a skilful mariner, a well-grounded apprehension of the loss of vessel and cargo, or of the lives of the crew”. Traditionally this meant things such as a broken mast, or damaged sails or engine problems. So, what about on a cruise ship with a crew of about 1000? Some of those crew are on board to run the ship and others are there to serve the passengers. Professor Klein says distress would be easier to make out if those running the ship were unable to do so because they were sick.

Most (in)famously, in 2001, distress was invoked by Arne Rhinnan (the captain of the Tampa) to defy Australia’s threats of fines and imprisonment when he sailed into Australian waters and set anchor a few km off Christmas Island (because there were no facilities on the island to cope with a ship of that size). The distress he relied on was that he had insufficient food, water and medical facilities for his 438 newly acquired asylum seeker passengers (which he had taken on board under a duty to rescue and at Australia’s request). Apart from the diplomatic incident, the end result of his actions were that Captain Rhinnan received Norway’s highest civil honour for his handling of the situation and Australia ended up with a harsh “turn back the boats” border protection policy.

All that makes wish that I had taken “law of the sea” as an elective after all!

Creative commons acknowledgement for the photograph.

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