A Wave of Port Denials in the face of the Covid-19 Pandemic

10 avril 2020 Non Par ZOMAD

French version published on April 1st, 2020 here

On March 11th, 2020, the World Health Organisation (WHO) declared that the Covid-19 reached pandemic stage, highlighting the virus spread at a global level. Its Director-General concluded his address reminding that “We’re in this together, to do the right things with calm and protect the citizens of the world”. A protection which stops however at the port entrance, in some cases.

Each day the Covid-19 pandemic brings its share of infected ships which are denied access to ports. The current time is reminiscent of older outbreaks whose spread was favored by maritime transport of people and goods. In 1720, the Italian authorities denied access to the Livorno port to the Grand-Saint-Antoine vessel due to several cases of fever onboard. The ship finally docked in Marseille, bringing the plague with it. More recently, measures restricting access to ports were taken during the Ebola outbreak in West Africa. For instance, the Ivory Coast had set up prior health inspections for ships arriving from Nigeria and Senegal. These events largely explain the current behavior of States and their reluctance to welcome ships in their ports.

States, fearing that several hundred passengers infected with the Covid-19 virus might disembark on their land, are taking measures limiting access to their ports, in particular with regard to cruise ships. On February 25th, the MSC Meraviglia was denied permission to dock at both a Jamaican port and a Caymanian port due to a suspected Covid-19 case on board. The Westerdam was also denied entry to Japanese ports. After 10 days wandering at sea which contributed to the spread of the virus among the passengers, it was finally allowed to dock at the Cambodian port of Sihanoukville on February 13th. The Silver Explorer, the Azamara and the Celebrity Eclipse were similarly rejected by Chile and Peru in March.

Overview of port restrictions

These examples show a generalization of the phenomenon. However, State measures are variable. For instance, Australia and Italy deny port access only to all cruise ships. France has the same policy, unless an exemption is granted. Less strict measures are taken by Norway which makes access to ports subject to possible quarantine on a case-by-case basis. Japan has similar measures for ships which have sailed through infected areas. This information is subject to regulatory changes, which have been frequent in the past weeks.

This map (see the original here for updates) gives a more comprehensive overview of measures at the international level. For European ports, see the inventory of measures made by the European Maritime Safety Agency.

Because they have full sovereignty over their ports, States may regulate access to them (see Article 25 of the United Nations Convention on the Law of the Sea). While there is no general obligation for them to open their ports to foreign ships, States parties to the 1923 Convention on the International Regime of Maritime Ports have undertaken to treat the ships of all States, including their own, equally (art.2). Articles 16 and 17 allow States to derogate from the equal treatment principle, particularly in cases of public health risks. In the current health context, many States have emergency measures in place for this purpose, but they must ensure that these measures are not disproportionate to the actual risks. The emergency situation, although established, does not mean States have free rein to break the law.

In this regard, IMO and WHO, in a joint statement issued on February 13th, stressed the balance to be struck between continuity of maritime activities and the protection of public health for coastal States. At the same time, the International Shipping Chamber requested port States to accept all ships in order to disembark both cargo and passengers, and thus facilitate their handling.

Maritime transport freedoms and public health protection – which balance?

The port State must consider all the interests involved. In the case of the Covid-19, State overwhelming concerns relates to the preservation of public health. The State must ensure that the pandemic does not spread on its territory, while striving to meet its obligations to passengers and crew members.

However, there are international rules to guide the assessment by States of the interests at stake. The International Health Regulations (IHR 2005) are a legal instrument binding for all the WHO Member States. Its main purpose is to prevent the spread of diseases and some of its provisions apply to maritime transport.

The principle adopted by this text is that of free pratique which is understood to mean the “permission for a ship to enter a port, embark or disembark, discharge or load cargo or stores” (art. 1st IHR). Thus, article 28.1 states that “a ship or an aircraft shall not be prevented for public health reasons from calling at any point of entry”.

Article 28.2 specifies that a ship shall not be denied the embarkation and disembarkation of passengers either. The free pratique principle is nevertheless relative as article 28.3 specifies that a State may authorize a ship to enter its port if it “is of the opinion that the arrival of the ship or aircraft will not result in the introduction or spread of disease”, thus giving it a margin of appreciation. In addition, this provision leaves room for more exceptions, in the case of “specific public health risks or public health emergencies of international concern” (art. 43.1). There is no doubt that Covid-19 is one of these. In such a situation, the State may prevent a ship from making a stopover in its ports and refuse the embarkation and disembarkation of passengers. But here again, the State does not have discretionary power of appreciation. On the contrary, it must comply with three requirements. Firstly, article 43.1 states that such measures “shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives”. Secondly, the State must rely on scientific studies or WHO recommendations to justify these measures (art.43.2). Thirdly, it must convey these justifications to the WHO (art 43.3) to allow the organization to check whether the measures do not disproportionately interfere with the international traffic. The organization may hence request the State to “reconsider the application of the measures” (art. 43.4).

States have used their power to assess circumstances by adopting variously restrictive measures, without it being clear why there is such a disparity. Measures range from indiscriminate prohibitions on access to ports for all passenger vessels (e.g. the Dominican Republic) to more detailed bans, especially if the ships have passed through infected areas (e.g. the Philippines). A less strict and more appropriate approach is specifically based on the health situation of the ship. Measures taken by the harbour authorities of the biggest European ports are in line with this approach. For instance, the Rotterdam Port Health Authority has systematised the prior submission of Maritime Declarations of Health. The same method has been adopted by Belgium regarding the access to the port of Antwerp, combining the Maritime Declaration of Health with an onboard control by Saniport (Port Health Authority). Finally, some States allow disembarkation in the event of a medical emergency on board a ship. This is the Portuguese position in the Azores

The distress – the ultima ratio to access ports?

To overcome these obstacles, a number of newspapers (see for example here and here) have claimed the existence of a right of access to ports for ships carrying passengers affected by the Covid-19, on the basis of a distress situation. Although the argument can be sustained, it is far from constituting an automatic right of entry.

In the absence of a consensual and universal definition of distress at sea, States take different approaches. The first approach is to consider « distress » strictly, as the existence of a definite and already materialized danger. A second, more flexible understanding of the « distress phase » in the SAR Convention specifies that it is a situation in which an individual is threatened by a “grave and imminent danger and requires immediate assistance”. Regulation (EU) No 656/2014 of the European Parliament adopts the second hypothesis since the immediacy of the danger is not necessary to describe a situation of distress. More concretely, it specifies practical criteria that masters of infected ships could use to define a distress situation. These include: “(i) the existence of a request for assistance; (iii) the number of persons on board in relation to the type and condition of the vessel; […] (vii) the presence of persons on board in urgent need of medical assistance; (viii) the presence of deceased persons on board”. Entry into the port would then be aimed at ending this distress situation. Since the duty to demonstrate distress is incumbent on the person claiming it, he or she will be able to use these practical elements. Even if infected vessels were to be in distress, a de facto right of entry into ports cannot be established.

The shipmaster has an additional justification for requesting access to the port State, which has an obligation to consider it, taking care to comply with “a balancing of the nature and immediacy of the threat to the ship’s safety against the risks to the port that such entry may pose”, as reminded by the IMO.

In the most extreme situations, shipmasters also have a role to play. Article 28.6 of the International Health Regulations and Regulation 34.1 of the SOLAS Convention provide that the master of the ship, in accordance with his/her professional ethics, is entitled to take “emergency measures as may be necessary for the health and safety of travelers on board” during a distress situation. In addition, he/she is expected to cooperate by communicating in a transparent way about the health status of the ship (Article 28.4 of the IHR).

An enhanced cooperation in a context of exceptional crisis?

IMO encourages cooperation between flag State authorities, port State authorities and control regimes, companies and shipmasters in order to guarantee the highest level of protection and rights for everyone in this health crisis. In the event that the port State denies access to the port, other parties involved, including the flag State, should be approached. It may be called upon to provide medical equipment and prompt medical care on board the ship. Unfortunately, the flag States, especially the flags of convenience ones, demonstrate a guilty passivity. As an example, the Braemar, a cruise ship registered under the flag of the Bahamas, was refused access to Bahamian ports. It ended up in Cuba, which finally opened its ports to it.

Fortunately, some States have been more cooperative by repatriating their nationals stuck on board of infected ships. This has provided relief to port States with regard to the care of other infected passengers. Passengers on the Costa Magica (Spain and the United States) or the Costa Luminosa (Italy, for example) benefited from this support. Within the framework of the European Union, the cooperation of Member States to repatriate their nationals has been facilitated by the European External Action Service. This service made it possible to implement EU’s Civil Protection Mechanism, in particular for European passengers on the Diamond Princess.

Some shipowners or charterers have also acted to ensure the safety and health of persons on board their ships. For example, Holland America Line assisted the MS Zaandam while it was crossing the Panama Canal, in order to transfer uninfected passengers to the SS Rotterdam. Panama’s maritime authorities supervised the operations.

However, even the virtuous States seem more concerned with repatriating tourists than with responding to calls for help from seafarers serving on ships who wish to return home, whether for medical reasons or because they have overly exceeded the time of their contract or the maximum time of boarding. This situation is unanimously denounced by the seafarers’ unions. On March, 17th 2020, the President of the International Transport Workers’ Federation pointed out “the failure of flag states to protect seafarers’ and passenger’s health during this humanitarian crisis. However, the Maritime Labour Convention (2006) provides that the flag State “shall ensure that all seafarers on ships that fly its flag are covered by adequate measures for the protection of their health and that they have access to prompt and adequate medical care whilst working on board”.

Ultimately, the Covid-19 pandemic is a reminder that States have control over all decisions regarding port access. Even if other parties have a role to play in the resolution of this crisis, they have largely confirmed that their contribution remains as limited in practice as it is in the law. Their involvement is still subject to their good will. There is no doubt that ports can be an entry for the proliferation of Covid-19′. Nevertheless, turning away a ship – already hardly hit by the Covid-19 – will not make it possible to contain a pandemic that also affects individuals at sea.

Marie Boucher, Master’s degree student in International and European Law at the University of Angers

Justine Guillemot, Master’s degree student in International and European Law at the University of Angers

Ysam Soualhi, Master’s degree student in International and European Law at the University of Angers and intern at the Centre Jean Bodin as part of the DAMOZ project

Under the supervision of Alina Miron, Professor at the University of Angers