September: CIRCULAR 4A/2002


PROCEDURE TO BE FOLLOWED BY THE MASTER / OWNERS IN ORDER TO BEST PROTECT THEIR INTERESTS. According to Spanish Ports law, vessels calling at Spanish ports with stowaways on board can be arrested by the port authorities facing a fine of:

  1. Up to Euros 180,304 if the stowaway escapes from the vessel.
  2. Up to Euros 120,203 if the vessel does not declare when calling to any Spanish port that there are stowaways on board.

The vessel will be detained until a guarantee (cash, insurance bond or bank guarantee namely) is provided and a sanctioning proceeding will be started against the Master and the owners of the vessel, where defence allegations should be provided to best protect owner’s interests. These defence allegations do not need to be prepared by a lawyer and therefore commercial correspondents with legal knowledge and experience can assist with this proceeding.

It is important to note that the Spanish Government is preparing a new Spanish Ports law which will modify in short the existing regulation on stowaways as well as the sanctioning proceedings and fines.

If the vessel intends to call any Spanish port and in order to prevent the vessel from being detained and fined the Master should therefore:

  1. Inform in writing to the Spanish Boarder Police that there are stowaways on board, also informing number of stowaways, whether they have identity documentation and provide their names and details and the date and port where they presumably embarked. The Master should also advise whether the vessel will be calling to any other Spanish port/s.
  2. Appoint security guards to prevent the stowaways from escaping. Various security companies are prepared to provide this service which costs will vary from one another.

DISEMBARKING THE STOWAWAYS AS REFUGEES. In order to disembark the stowaways as refugees they should personally apply for asylum. The request for asylum can be made on board the vessel and it should be requested before the Boarder Police. If the Police are not willing to assist then the stowaway’s request should be put down into writing and presented before the Sub-delegation of the Government. In asylum cases the assistance from the Refugees Association and the Bar Association at that port will prevent the correspondent from being in the front line and will also reduce costs for the owners as they are ready to provide duty lawyers and interpreters at no cost / reduced costs.

According to Spanish domestic law the asylum will be given if the foreigner complies with the requests of the 1951 Convention on Refugees., that is: fear with good evidence of being persecuted due to race, religion, nationality, belonging to a social group or political opinions regarding their country.

The initial admission of the stowaway’s petition for asylum means that the stowaway will be disembarked and will be authorised to enter into Spain and stay provisionally. The competent authority has four days to notify the no admission of the stowaway’s request for asylum if the request is based in false or incorrect facts, allegations or datas. An appeal to the no admission can however be filed and the stowaway will meanwhile remain in Spanish territory.

REPATRIATION OF THE STOWAWAY WITH IDENTITIY DOCUMENTATION OR WITH TRAVEL DOCUMENTS. A stowaway with identity documentation, or with no identity documentation but for whom a transit visa has been obtained, can be disembarked and repatriated from any Spanish ports if the necessary procedure is followed. This procedure is established by the Home Office in Madrid, and although it can vary from one port to another it will basically request:

  1. Original identification document or original travel documents for the stowaway
  2. Air-tickets
  3. Details of the repatriation route until destination
  4. Safety escorts. In order to avoid problems if one stowaway escapes during the repatriation at Spanish territory, the escorts should belong to a registered company and should have the necessary authorisation to provide the escort service inside Spain given that per law the Spanish Police is the competent authority to provide escort services. The costs and authorisation of the escorts should be carefully checked as there are individuals and non-registered companies in Spain providing these services at excessive rates.
  5. Letter from the ship agent or from the correspondent assuming to cover all the costs

All the previous costs and expenses will have to be covered by the ship owner although there is a Spanish By-Law (Police Directive which validity may be questioned) stating that these costs will be covered by the vessel’s agent.

NEW SPANISH STATUTORY LAW ON THE STATUS OF A FOREIGNER AND FINES. The title of Infractions and Sanctions of this new law 4/2000 contemplates that it is a severe infraction to induce, promote, favour or facilitate, forming part of a profit-making organization, the illicit integration of people in transit or with destination to Spanish territory as long as the act does not constitute a delict.

Owners who are understood by Spanish authorities to be forming part of profit-making organizations face a fine of from 6,011 to 60,101 Euros.

It will however not be considered an infraction to this law the fact of transporting to the Spanish border a foreigner who, having made an immediate application for asylum, this application is accepted to proceedings according to Spanish law.