Does current law provide a commercially realistic or just solution to the stowaway problem that is plaguing the shipping industry in the United States and in other maritime nations?
The International Maritime Dictionary defines “stowaway” as a person hiding on a departing vessel for the purpose of obtaining free passage.
Under U.S. law, stowaways are subject to criminal prosecution (18 U.S.C. 2199) and a $1,000 fine or one year in prison, or both. Alien stowaways also are excluded from admission into the United States. However, some stowaways in recent years have avoided exclusion by seeking political asylum.
The law (8 U.S.C. 1323(d)) imposes a #3,000 penalty on shipowners for each alien stowaway they fail to detain and deport, at the shipowner’s expense. While the fine is small, many shipowners claim that the cost of detaining stowaways under 24-hour security and providing medical treatment can be prohibitive. This is especially true when the detention period is prolonged because the stowaway seeks political asylum.
If asylum is denied, the shipowner must pay for the stowaway’s deportation. One shipowner solved this problem by chartering an airplane to transport over sixty stowaways and their security guards from the United States to South America. The company then had to pay return air fares for the guards.
Many shipowners claim the government should be responsible for detaining and deporting stowaways. This is based upon the premise that shipowners have only limited means available to them in foreign ports to prevent stowaways from boarding vessels. This serious situation has recently prompted the Maritime Law Association to voice its concerns that foreign and domestic shipowners require relief from the legal and economic burdens imposed upon them by the current stowaway epidemic. The association is planning to convey its position to Congress. Likewise, German shipowner associations have recently called for a political solution to the stowaway crisis.
It should be emphasized that detention and deportation may not be the worst part of a stowaway’s plight. Many stowaways die while hiding aboard vessels and in cargo containers. Some have even been thrown overboard when discovered/p>
Where There’s Smoke . . . The recent “Isla Plaza” case (1985 Civ. 0491) in the New York Southern District Court focuses on another problem associated with stowaways: Who is responsible for cargo and vessel damage caused by stowaways?
In the “Isla Plaza” case, a cargo owner sued for damages after fire aboard the vessel destroyed its cargo. The cargo claim was settled, but the court considered the counterclaim of the shipowner for vessel fire damage. The counterclaim alleged that the fire was attributable to the cargo owner’s negligence in permitting stowaways to board at the load port. The court found the cargo owner not liable for damage caused by the stowaways because it had no duty to control access to the ship.
While the Isla Plaza case in fact-specific, some of the court’s findings shed light on the security problems associated with stowaways at load ports. The court made the following findings:
- The shipowner was required to provide for gangway and other security needs.
- Stowaways boarding vessels in South American countries were a persistent problem, well-known to the shipping industry.
- Stowaways are a risk to both cargo and crew and were known to have attacked crewmembers while escaping apprehension.
- The shipowner could have hired guards to help monitor the pier and the vessel and to search for stowaways.
- In 1984, Colombian authorities assigned local militia to guard vessels during loading.
- Eight armed Colombian marines assisted in apprehending two stowaways while the Isla Plaza was loading.
- During loading, the ship’s crew searched the vessel for stowaways except for two locked holds.
- During loading, fire was detected in one of these holds.
- Two stowaways were later found dead in one of these holds.
- The stowaways had matches in their possession. Given scanty clothing they wore and the extremely cold temperatures in the hold, it was highly unlikely that they could have resisted lighting a fire.
- When the captain noticed the fire, he did not know if anyone was alive inside the hold. The captain decided to pour water in the hold rather than use CO2. Though flooding the hold with CO2 would contain the fire, this extinguishing method would have been fatal to anyone inside the hold.
- The captain was not negligent in waiting several hours before flooding the hold with CO2. He took this precaution to ensure no one was alive in the hold.
- A thorough search of the vessel by the crew would have led to the apprehension of the two stowaways.
It is now apparent that the legal issues associated with stowaways are intricate, political and in many instances unresolved. Stowaways are dying, cargo and ships are being damaged and shipowners are left alone to cope with the problem. If Congress takes up the challenge to tackle the stowaway issue, it will have its work cut out.