Spain's hidden costs

CALLING at Spanish ports with stowaways on board can turn into a real nightmare for shipowners and their P&I clubs. Under Spanish law (1992 Ports Act), the refusal of a master to retain a stowaway on board until he is handed over to the relevant authority may amount to a serious infringement for which the owner may be fined up to $190,000.

The fine is not the only problem facing the owners. In the event that stowaways are found on board, the vessel will invariably be detained until the owner or its P&I club put up sufficient security to the satisfaction of the local port authority. Given that letters of undertaking issued by P&I clubs are not usually acceptable to the Spanish authorities, the time needed to arrange the provision of the required security, normally a bank guarantee or a bond issued by a first class Spanish insurance company, will cause delay to the ship's departure, and subsequent loss and costs.

The obligation of the master to retain stowaways on board has been tightened by the Spanish maritime authorities through their recommendation to all port authorities not to interpret the "refusal" of the master in a restrictive way. In other words, not only should the master and crew prevent stowaways from disembarking, they must also take active measures to retain them on board until the stowaways are in the control of the local authorities. This can include the hiring of professional security guards.

While failure to take such steps will not necessarily give rise to liability on the vessel, the port authority will consider positively, in the context of proceedings commenced against the ship, the attitude of those masters who do not take the above measures.

Care must therefore be exercised when operating in Spain, and additional precautions must be taken against the possibility of persons coming on board ship at the ports of origin and stowing away. If, despite the measures adopted by the master and the crew, stowaways are discovered on board after leaving the port, appropriate steps should be taken to prevent the stowaways from disembarking before they can be handed over to the local authority at destination. The consequences of failing to do so could be disastrous.

In a recent case, a large number of stowaways were found on board a vessel before arriving at a Spanish Mediterranean port. The master considered it appropriate to inform the local ship agent so that he could in turn advise the harbour master accordingly. The harbour master allowed the vessel to berth and notified the local police in order for them to visit the stowaways on board.

Following inspection, the local police concluded that the stowaways were being treated properly. The police agreed with the master that he would be responsible for the stowaways and would retain and repatriate them, as the vessel's following port of call was in the stowaway's country of origin. Despite the master keeping the stowaways in a safe place and establishing watch shifts by the crew, the stowaways escaped. Shortly after, more than half of them were detained by the local police and returned to the vessel.

As a consequence of the stowaway's escape, the harbour master commenced proceedings against the owner and detained the vessel until sufficient security was provided in the amount of $160,000. Needless to say, this caused serious delays to the vessel and gave rise to claims from the cargo receivers.

Whenever stowaways are discovered on board a ship calling in Spain, the master must inform the local authority in advance so that the stowaways are handed over to them immediately upon arrival.

The lesson to be learnt from cases like this is clear. Whenever stowaways are discovered on board a ship calling at Spain, the master must inform the local authority in advance so that the stowaways are handed over to them immediately upon arrival. In the meantime, the master and the crew should do their best to retain the stowaways on board, taking such precautions as may be necessary to prevent them from leaving the vessel.