Stowaways

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Stowaways

Stowaways have been a problem to shipowners for about as long as there have been
ships in the sea. In the early days of sailing ships and looser maritime
legislation, this was a relatively minor problem. This probably had to due with
the fact that the ships were smaller in comparison to today’s standards, and
were comparatively heavily crewed. Thus the chances for a stowaway to get on
board and go undiscovered for any length of time were fairly small. Also in
that age, the concept of “human rights” was not what it is today, and any
stowaways that were found often became involuntary members of the crew. There
was, therefore, little incentive to become an unpaying passenger on a merchant
ship. Today, however, ships have become ever larger, the maritime world has
become increasingly regulated, and the issue of stowaways has become a major
problem.


There are really several reasons why stowaways have become more of a problem.

The real driving factor is really an economic one (Wiener). With all of the
political and economic strife in the world today, there is a huge population of
people who are just tired of being on the rock bottom of the economic ladder,
and are desperate for a better life in a different place. This is really the
basic reason why someone would want to spend a week or so crammed into a stuffy
container or other similarly uncomfortable accommodations in order to get from
wherever they are to somewhere else. It isn’t because they just didn’t have the
money for a plane ticket, but it is the fact that they are being lured by the
prospect of a better life. They are willing to leave their homelands and endure
uncertain conditions in order to get there.


There is, of course, the possibility of applying to another country, such as the
United States or any other world economic superpower, for admission as an
immigrant. This is a very long and difficult process, and the likelihood of
actually getting in is slim. Even if it was possible, few third world citizens
can actually afford transportation overseas, let alone find and afford housing,
meals, and so forth, once they get there. The fact of the matter is that may
desperately poor people who would like to immigrate to another country simply
lack the resources to make the trip legally. Therefore, alternative measures,
such as stealing rides on merchant ships, become very attractive (Wiener).


Another component is the ever increasing size of today’s merchant ships, coupled
with the gradual decrease in the size of the crews sailing in them. The modern
merchant ship has a staggering array of nooks and crannies that are perfect for
a person to hide in. Even with the best crew, there simply aren’t enough of
them to adequately search an entire ship during the short time that they are in
port (Wiener). If, by chance, the ship’s crew does become wise to some of the
favorite hiding spots, the creative mind of a man driven by desperation can
usually conspire to come up with something new. For example, there was an AB on
the LNG Leo (my ship this past summer) that had an unusual story. He had an
acquaintance who worked on a grain ship that had found a couple stowaways buried
in one of the holds. Apparently, they had somehow found their way on board and
burrowed into the cargo of grain, breathing through a couple straws that just
broke the surface of the cargo. Unfortunately for them, the cargo hadshifted
slightly during the voyage, burying the stowaways alive (Pegram).


The container revolution has added significantly to this problem. Containers
are, of course, packed and sealed well before it ever gets near the ship, and
they can come aboard full of stowaways without the crew having any idea that
they are there. It is only when the occupants of the container try to get out
and get some fresh air or food is it discovered stowaways are on board (Wiener).

Of course, when the stowaways enter the container, they have no idea where on
the ship that container will end up. They could luck out and get in an outside
tier on deck, where they could cut a hole in the side of the container to get
some air, or to go out on deck in search of food. This obviously can create a
problem for the crew, who are now faced with a roaming crowd of stowaways on
deck. The other possibility is for the container to be buried deep in the hold,
where it is impossible to escape from the container. This is good for the crew,
but creates a big problem for the stowaways if they did not bring sufficient
supplies (“Security”).


There are also many reasons why stowaways create problems for shipowner. Again,
the major problem is, of course, money. According to the United States
Immigration and Naturalization Act, stowaways who do not seek political asylum
are considered “excludable aliens” and are prohibited from coming ashore
(Mercante 2B). Also, they must be deported immediately back to their country of
origin, with no right to a hearing to determine their status. The shipowner is
responsible for these repatriation expenses, and also must pay the cost of
detaining the stowaways from the time of entering the U.S. to the time of
departure. This usually includes a hotel room, food, medical treatment,
interpreters if needed, and a 24-hour guard. Should there be any violations of
the Act, such as a stowaway escaping the ship while it is in port or failing to
deport a stowaway, ships are fined $3,000 (Mercante 2B).


The real snag here is when the stowaway seeks political asylum, which any
halfway intelligent person would. The 1967 United Nations Declaration on
Territorial Asylum states that “no person shall be subjected to measures such as
rejection at the frontier or, if he has already entered the territory in which
he seeks asylum, expulsion or compulsory return to any State where he may be
subjected to persecution (“Note on Stowaway”).” Further, the Immigration and
Naturalization Service (INS) required, until recently, that the shipowner house,
feed, and guard the potential immigrant for the entire duration of the hearing,
which could last for months. The total cost to the shipowner in this situation
could reach $400,000 per person, a figure that could easily wipe out a good part
of the carrier’s profits for that voyage (Freudmann 1A).


It is for this reason that the shipowners have been complaining to congress
about the high cost of stowaways. In fact, some have filed suit against the
government. In a recent case, four Romanian stowaways were found on board the
M/V European Senator, owned by Dia Navigation Company. The stowaways were
interviewed by an INS officer and found to be “excludable aliens” under the U.S.

code. However, the four Romanians applied for asylum, thus giving Dia
Navigation the responsibility for housing, guarding, and feeding the four men
for the duration of the asylum hearing. During the detention, the stowaways
were found to speak no English, so a Romanian interpreter had to be hired so
that the application papers could be completed. Also, one of the stowaways went
on a hunger strike and threatened to commit suicide, thus requiring him to be
confined in irons in his own room. Dia Navigation requested that the INS take
custody of the detainees, but they refused. Eventually a decision was reached,
but Dia wasstuck with a bill for 54 days of detention time, a cost of $127,580.

Faced with this, Dia filed suit against the INS, claiming that the policy
requiring shipping companies to pay for the detention of stowaways was a
violation of the Immigration and Naturalization Act. Further, they claimed
recovery of these expenses under the Tucker Act and the Administrative
Procedures Act (“Dia Navigation”).


A lower court rejected Dia’s claim, but they were at least partially vindicated
on appeal. The United States Court of Appeals for the Third Circuit agreed with
Dia on the count that the INS’s policy requiring shipowners to house stowaways
for the duration of their hearings was unlawful, but they did not feel that Dia
deserved compensation for their expenses. This case has been carefully watched
by other shipping companies facing the problem of stowaways on their ships (“Dia
Navigation”).


This particular problem of monetary costs of stowaways to shipping companies is
actually somewhat worse in Canada, where ships are fined $7,000 (Canadian) per
stowaway entering a Canadian port, even if they are seeking asylum (Freudmann
1A). This is also combined with the fact that Canada has a fairly liberal
refugee law which allows a large portion of asylum seekers in to the country.

This system creates a lose-lose situation for the shipowners, as the Canadian
policy lures in refugees, and fines the shipowners for brining them in.

Increasingly fed up with this, some shipping companies have threaten to stop
calling in Canadian ports unless their legal system is changed (“Maersk” 37).


Stowaways not only pose a financial burden to shipowners, they can also be a
serious risk to the ship and the cargo. The biggest danger is the risk of fire,
especially if the stowaways happen to smoke. If a stowaway, living in a cargo
hold full of flammable materials, happens to drop a cigarette from his hiding
place, catastrophe could result. For example, stowaways have been found smoking
near containers clearly labeled as containing explosives (Freudmann 1A).


Stowaways are also a danger to the crew. In the wake of several well-publicized
murders of stowaways at sea, the possibility of a stowaway going aboard a ship
armed is increasing. Again, the issue of reduced crews comes into play, as a
band of twenty or so well armed asylum-seekers can be more than a match to a
ship’s crew. Also, ships nowadays are not designed to carry extra passengers,
so finding accommodations and food for a few unexpected guests could be
difficult. Even if this could be accomplished, some of the crew would have to
be dedicated to guarding the stowaways, further straining an already minimal
crew (Wiener).


Shipping companies, faced with a very high cost and risk from the stowaways,
have put some pressure on their officers to find and remove all illegal
passengers. This has, unfortunately, resulted in some crews actually throwing
stowaways overboard in an attempt to escape port fines. In a recent case, the
Taiwanese crew of the Maersk Dubai, under charter to Yang Ming, were accused of
throwing three Romanian stowaways overboard while their ship was en route to
Halifax, Nova Scotia. The officers are accused of murder allegedly motivated by
the prospect of the $7000 fine being levied against him or his company (“Maersk”
37).


What is interesting is that the company officials for both Maersk and Yang Ming
are both claiming that they do not pressure their crew to get rid of stowaways
in such a manner and, further, have strict policies concerning the humane
treatment of stowaways. They also say that any fines against the ship are
covered by an insurance policy, and that neither the ship or the crew would have
to pay them (“Maersk” 38).


That being the case, the question is raised as to why exactly stowaways are
being thrown overboard, not only on the Maersk Dubai, but in ships around the
world. Yet again, we return to the issue of economics. There are,
unfortunately, quite a few ships in the world that operate with the absolute
bare minimum spent on the hiring and upkeep of their crews. A lot of these
crews are from former Communist countries such as the Ukraine and other
economically chaotic countries. The crews, already working for near-subsistence
wages, take a dim view of an unwanted guest taking food from their tables
(Atherton).


Finally, there is the point of the liability of the ship in the event that the
crew is injured in a confrontation with a stowaway. An injured crew member
could have a claim against the shipowners, as it could be argued that the crew
member are entitled to a warranty that they are properly trained for their
duties. If the crew are not trained to apprehend stowaways, the crew members
could conceivably recover under the premise that the ship is considered
unseaworthy. Several shipping companies have come to realize that training is
necessary, and have begun special programs. This is, however, only a
reactionary approach, and does not get to the root of a complex problem (Wiener).


Shipowners are, unfortunately, the victims in a lose-lose situation. They do
not posses the resources to find and deal with illegal passengers, but are
heavily penalized if they are found. Shipowners should not have to bear brunt
of keeping, guarding, and transporting stowaways, as this is obviously very
costly. There have been, finally, some steps in the right direction. The U.S.

House of Representatives recently passed the bill H.R. 2202, which relieves a
lot of the costs to the shipowner plagued with unwanted guests. The bill will
basically guarantee the removal of the stowaway for the ship and into INS
custody within a period of 72 hours. Also, it limits the time the ship is
liable for detention costs for the stowaways to fifteen business days
(“Security”).


This is, however, just the beginning of the solution to the problem of stowaways.

The world will be, unfortunately, in a state of economic turmoil for the
foreseeable future, so the threat of stowaways will not go away. There are, at
present, efforts by governments and shipping companies to combat the problem.

Bills such as H.R. 2202 and the actions by Maersk in pressuring government
action are definitely steps in the right direction. Hopefully, there will be
more efforts like this around the world, and the danger of stowaways will
continue to diminish.


Bibliography
Atherton, Tony. “Story of Murdered Stowaways Makes Riveting Drama.”
URL:http://www.ottowacitizenune13/ent/ent5/ent5.html (6 Nov. 1996)
“Dia Navigation Company, Ltd v. Pomeroy, et al.” The Villanova Center for
Information Law and Policy. URL:http://www.law.vill.edu/
3d/opinions/94a0/56p.htm (14 Nov. 1996)
Freudmann, Avia. “Ship Lines Say Canada Encourages Stowaways.” Journal of
Commerce. 3 July, 1996: 1A
“Maersk Captain, Officers Charged in Murders of Stowaways at Sea.” Professional
Mariner. August/September 1996: 37-38
Mercante, James E. “Sea Trials.” Journal of Commerce. 3 May, 1996: 2B
“Note on Stowaway Asylum-Seekers.” Sub-Committee of the Whole on International
Protection. URL:http://unncr.cn/reiworld/unncr/scip/51.htm (6 Nov. 1996)
Pegram, Jack. Personal interview. June 1996
“Security” URL:http://www.bimco.uk/csi-sec.htm (6 Nov. 1996)
Wiener, Cary Robert. “Maritime Security: No Longer a Luxury But a Legal
Necessity.” URL:http://www.acsp.uic.edu/oicj/pubs/cji/100601.htm (6 Nov. 1996)
Category: Law