How the Secretary of Transportation, Andreas Scheuer (CSU), wants to prevent sea rescue in the Mediterranean. On the revision of the Ship Safety Regulation
The German state puts stones in the way of humanitarian sea rescue organizations wherever it can. For example, it recently amended the Ship Safety Regulation to thwart the mission of Mission Lifeline’s new lifeboat, “Rise Above”.
The decision of OVG Hamburg (Higher Administrative Court) to detain “Mare Liberum”
Background: In April 2019 the so-called “Berufsgenossenschaft Verkehr” (professional association) as relevant authority the sail of “Mare Liberum”. It based the ban on the intended use as a lifeboat: Because the boat is not used for “sports and leisure purposes”, it needs a ship safety certificate. Since safety certificates were only required for ships for professional purposes, but not for boats for “sport and leisure purposes”, the owners could not show any. The NGO “Mare Liberum” sued the detention order and won the case in September 2019. The court in Hamburg decided, “Leisure time” can “serve as a recovery from the efforts of professional or other obligations, but is not limited to this. It also covers communicative, cultural, political and sporting activities that help personal development, which includes non-profit and humanitarian activities without further ado” (OVG Hamburg, ruling as of Sept. 5,2019, 3 Bs 124/19, p.9f.). The Higher Administrative Court thus found that sea rescue missions are also permissible with sports boats and small vehicles without a safety certificate.
“Risk-appropriate” treatment in the new Ship Safety Regulation?
The Federal Government did not like this decision. At the beginning of March, the responsible Federal Ministry of Transport replaced the phrase “sports and leisure purposes” with “sports and recreational purposes” (Federal Law Gazette I 2020, 412). Therefore, boats that do not serve professional purposes, but also do not serve sports and recreation, must now present a ship safety certificate. The federal government is therefore changing the law to overturn the highest judicial decision of the OVG Hamburg. In a letter dated April 6, 2020, the “Berufsgenossenschaft Verkehr” informed the Mission Lifeline association that “the exemption from the obligation to certify for non-commercial small vehicles or pleasure craft is now linked to the use only for sport and recreational purposes”. On the other hand, “Small vehicles and pleasure craft that are used by associations and private individuals in a targeted manner, e.g. in the area of environmental protection, sea rescue, including observation missions, or other humanitarian purposes, should be treated in a risk-appropriate manner in accordance with the law that also applies to commercial shipping.” The association claims the need for a safety certificate: An exception to the requirements is only justified “if the risk profile of a ship is significantly lower than in all other regulated cases due to its intended use.” Such a “higher security risk for the safety of people on board, ships and shipping” exists “in particular for the ships used by associations and private individuals in the fields of environmental protection, sea rescue, including observation missions, or other humanitarian purposes.”
Why the “Rise Above” of Mission Lifeline is affected
The Dresden Lifeboat NGO Mission Lifeline bought the Bundeswehr’s former torpedo recovery vessel “Rise Above” at the end of 2019 and is currently equipping it for lifeboat rescue in the Mediterranean. According to the new regulation, Mission Lifeline now requires a safety certificate – with considerable additional costs! The association has therefore commissioned a legal opinion from the renowned Hamburg law firm Günther, which specializes in maritime law and has already won the judgment of the OVG Hamburg. The report comes to the conclusion that the new security regulation is likely to be illegal.
Constitutional requirements for the admissibility of the change The Federal Ministry of Transport abolishes the equal treatment of sea rescue with sport and equates it to professional and commercial use. The general typical risk of sport use would be “significantly lower” than that of professional, commercial or humanitarian use. In principle, the legislator is entitled to set up different case groups. However, the regulation must not violate the fundamental right of the owner to use his property and to be treated equally. The case groups must therefore correspond to the purpose of setting safety requirements. The regulations must be proportionate and appropriate and must not treat the owner unequally without a factual reason.
Safety as a purpose of authorization under the Maritime Task Act (“Seeaufgabengesetz”)
The change in the ship safety regulation is based on the authorization basis of Section 9 (1) No. 4 of the Maritime Task Act. Thereafter, the Federal Ministry of Transport may decree “to ward off dangers for the safety and ease of maritime traffic, to ward off dangers to the marine environment, to prevent harmful environmental impacts from shipping as defined by the Federal Immission Control Act and to ensure safe, efficient and harmless ship operation” on safety requirements. However, the safety requirements may only serve to avert dangers for the crew, other ships or the marine environment. Other purposes are inappropriate and are not covered by the authorization basis. It is therefore clear that the Ministry of Transport cannot treat ships more strictly just because they are used for humanitarian sea rescue missions.
Are lifeboats generally more dangerous than sports boats?
So the key question is whether humanitarian missions typically pose greater risks to crew and shipping than trips for sport and recreation. The Ministry of Transport’s risk classification is not covered by the facts. So far it has not become known that humanitarian lifeboats have caused marine casualties. The use of the inflatable boats dropping off the rescue ship, which accommodate the people in distress in the unseaworthy rubber boats, is dangerous for the crew, but not for the stay on the rescue ship itself. The lives of the rescued and the crew on board a rescue ship can be endangered by overcrowding when Malta and Italy close their ports. But that has nothing to do with ship safety. The fact that Andreas Scheuer is concerned with preventing sea rescue in general is demonstrated by the explicit inclusion of mere observation missions in the new regulation. The use of boats for sports purposes is by no means generally less dangerous. Motor boat races, deep-sea fishing or sailing yachts are more risky for crews and other ships than converted fishing trawlers or former torpedo recovery vessels of the German Armed Forces such as the “Rise Above” from Mission Lifeline.
The new security regulation cannot be based on the authorization basis of the Maritime Task Act. It interferes disproportionately and inappropriately with the property rights of Mission Lifeline under Article 14 GG (Grundgesetz = German constitution) and violates its right to equal treatment under Article 3 GG. The federal government is forcing Mission Lifeline into a lawsuit that costs time and halts another rescue ship. While the EU is withdrawing its own ships from the rescue area off the Libyan coast, Germany is pulling out all the stops at home to prevent private rescue missions using legal tricks. The amendment to the Ship Safety Regulation marks the transition from failure to provide assistance to active state prevention of sea rescue.