Control of Search and Rescue Operations

A recent Search and Rescue (“SAR”) mission involving a North-entered ship has highlighted the role of the Coastal State in such operations.

The ship had left the load-port, passed through the 12nm Territorial Seas and was in the 200nm Exclusive Economic Zone (“EEZ”) before identifying that a crew member was missing. The Master informed the Coastal State, which was also the Maritime Rescue Coordination Centre (“MRCC”) for the sea area. Acting as MRCC, the Coastal State tasked the ship, together with others in the area, to perform a SAR operation under the command and control of their navy. After a proper but unsuccessful search the SAR operation was terminated and the naval commander permitted all ships that had been involved to continue their voyages.

During the SAR operation the owners were concerned that the Coastal State might order the ship to return to the nearest convenient port in order to conduct an investigation into the incident. The correspondent recommended that any such order should be complied with but the Master and owners understood that once the ship had left the Territorial Seas, the Flag State had responsibility for any on board investigation of the incident. In the event, no order was made by the Coastal State and the ship continued the cargo voyage.

The framework for control of maritime search and rescue is:

All mariners have an obligation to help those in danger at sea. This ‘immemorial custom of the sea’ is also enshrined in the United Nations Convention on the Law of the Sea (“UNCLOS”), the Safety of Life at Sea Convention (“SOLAS”), the Load Line Convention and The International Convention on Maritime Search and Rescue (“MSRC”).

The duty to render assistance is covered by Article 98 of UNCLOS:

Every State shall require the Master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:

• To render assistance to any person found at sea in danger of being lost;
• To proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; and
• After a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.

Under MSRC, the MRCC has authority to co-ordinate SAR operations and can require ships to take part in SAR operations. A ship must not be subject to undue delay, financial burden or other difficulties after assisting persons at sea and the MRCC must relieve them as soon as practicable. Certain expenses incurred in assisting persons in distress are indemnified under North’s Rule 19(8).

The framework set out above only applies to SAR operations. Responsibility for the investigation of accidents is primarily with the Flag Sate under Article 94 of UNCLOS which provides:

Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The Flag State and the other State shall co-operate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.

Coastal States have full sovereignty over their Territorial Seas, which includes the right to regulate shipping (always subject to any rights granted by UNCLOS, such as the right of ‘innocent passage’) and to investigate any accidents which might occur. However, the extent of a Coastal State’s jurisdiction over the EEZ is not straightforward; they do not have ‘sovereignty’ but they exercise ‘sovereign rights’ over the marine resources of the seabed and the water column. The EEZ remains ‘international waters’ and ships retain freedom of navigation. When in international waters, the authority to investigate marine accidents lies with the Flag State.