Stowaways Essay, Research Paper

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.ottowacitizen?une13/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)