The ‘Refugee Clause’: Why Contractual Allocation of Rescue Costs is Critical During Periods of Mass Migration at Sea
NUS - Centre for Maritime Law Working Paper 17/09
46 Pages Posted: 4 Oct 2017 Last revised: 5 Oct 2017
Date Written: October 3, 2017
In recent years merchant ships have been called to assist distressed migrant vessels at unprecedented rates. Pursuant to moral and legal obligations arising under international law, merchant shipmasters and crews have courageously responded by rescuing thousands of migrant seafarers. These rescues unfortunately are very expensive undertakings affecting shipping interests both in the form of direct expenditures and indirect losses flowing from commercial delays. With these challenges as the backdrop, this Article examines the commercial implications of merchant vessel participation in large-scale humanitarian rescues. First, it outlines the scope of the legal obligations imposed on private shipmasters to render assistance to distressed vessels. Next, it surveys the language of popularly used shipping contracts, such as the New York Produce Exchange (NYPE) time charterparty forms, and evaluates problems of rescue cost allocation by analysing relevant court opinions and arbitration awards from both the United States and England. Finally, drawing from the shipping industry’s experience in modifying contracts in response to pressing challenges such as maritime piracy, it argues new contract clauses should be adopted by industry participants to more precisely address rescue risk.
Keywords: Maritime law, international law, contract, charterparty, deviation, off-hire, search and rescue, refugee, migrant crisis
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