On 1 August 2022 the Court of Justice of the European Union delivered a Judgment in the Joined Cases C-14/21 and C-15/21 (Sea Watch eV v Ministero delle Infrastrutture e dei Trasporti and Others). The case concerned the division of powers between port states and flag states under EU law (Directive 2009/16; Italian domestic transposition (Legislative Decree No 53/2011)) and international law (UNCLOS; SOLAS; SAR Convention; IMO Resolution A.1138(31) and customary international law) in the context of Italia’s port state control of a German flagged cargo ships purported to be “systematically carrying out activities relating to the search for and rescue of persons at sea”. Law of the sea scholars may wish to consult the full text of the Judgment to view the Court’s interpretations of law of the sea instruments, in particular concerning the duty to render assistance at sea, as well as the interpretation of port state control under SOLAS and IMO Resolution A.1138(31) – which may have comparative application to other IMO and ILO conventions which utilise similar provisions, or fall under similar IMO guidance via IMO Resolution A.1138(31).
The operative part of the Judgment (para 160, emphasis added) held:
1. Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control, as amended by Directive (EU) 2017/2110 of the European Parliament and of the Council of 15 November 2017, must be interpreted as:
– applying to ships which, although classified and certified as cargo ships by the flag State, are in practice being systematically used by a humanitarian organisation for non-commercial activities relating to the search for and rescue of persons in danger or distress at sea; and
– precluding national legislation ensuring its transposition into domestic law from limiting its applicability only to ships which are used for commercial activities.
2. Article 11(b) of Directive 2009/16, as amended by Directive 2017/2110, read in conjunction with Part II of Annex I to that directive, as amended, must be interpreted as meaning that the port State may subject ships which systematically carry out search and rescue activities and which are located in one of its ports or in waters falling within its jurisdiction, having entered those waters and after all the operations relating to the transhipment or disembarking of persons to whom their respective masters have decided to render assistance have been completed, to an additional inspection if that State has established, on the basis of detailed legal and factual evidence, that there are serious indications capable of proving that there is a danger to health, safety, on-board working conditions or the environment, having regard to the conditions under which those ships operate.
3. Article 13 of Directive 2009/16, as amended by Directive 2017/2110, must be interpreted as meaning that, during more detailed inspections organised pursuant to that article, the port State has the power to take account of the fact that ships which have been classified and certified as cargo ships by the flag State are, in practice, being systematically used for activities relating to the search for and rescue of persons in danger or distress at sea in the context of a control intended to assess, on the basis of detailed legal and factual evidence, whether there is a danger to persons, property or the environment, having regard to the conditions under which those ships operate. By contrast, the port State does not have the power to demand proof that those ships hold certificates other than those issued by the flag State or that they comply with all the requirements applicable to another classification.
4. Article 19 of Directive 2009/16, as amended by Directive 2017/2110, must be interpreted as meaning that, in the event that it is established that ships which are, in practice, being systematically used for activities relating to the search for and rescue of persons in danger or distress at sea, despite having been classified and certified as cargo ships by a Member State which is the flag State, have been operated in a manner posing a danger to persons, property or the environment, the Member State which is the port State may not make the non-detention of those ships or the lifting of such a detention subject to the condition that those ships hold certificates appropriate to those activities and comply with all the corresponding requirements. By contrast, that State may impose predetermined corrective measures relating to safety, pollution prevention and on-board living and working conditions, provided that those corrective measures are justified by the presence of deficiencies which are clearly hazardous to safety, health or the environment and which make it impossible for a ship to sail under conditions capable of ensuring safety at sea. Such corrective measures must, in addition, be suitable, necessary, and proportionate to that end. Furthermore, the adoption and implementation of those measures by the port State must be the result of sincere cooperation between that State and the flag State, having due regard to the respective powers of those two States.
Sea Watch eV v Ministero delle Infrastrutture e dei Trasporti and Others, Judgment [160, emphasis added]
For more information see the CJEU Press Release No 138/22.