Cruise ships assembled off the NSW coast in an unprecedented standoff with authorities could be forced to declare that they are in distress in an effort to disembark crew on board, a leading maritime law expert says.
Professor Tim Stephens, a maritime law specialist at the University of Sydney's Faculty of Law, says one option is for cruise ships to elect to move to international waters but remain near Australian territorial waters in the hope the situation can be resolved.
Six cruise ships off the NSW coast, including the Ruby Princess and Radiance of the Seas, have been ordered to leave Australian waters due to the coronavirus pandemic with NSW Police Commissioner Mick Fuller accusing them of intentionally delaying their departure.
Professor Stephens said: "Masters [or captains of cruise ships] have an overriding duty of care to passengers and crew on board, and will naturally be seeking to look after their best interests."
"This may come into conflict with the interests and legal rights of coastal states [such as NSW]," he says.
"If the situation escalates then masters may declare that [their vessels] are in distress and seek to disembark crew and passengers for medical treatment. Under the customary international law of the sea there is a right of entry of vessels in distress to port."
Professor Stephens said that because these vessels may be running low on supplies, including food and medical provisions, they may not have the capacity to care for individuals on board, particularly the sick. Another option could be for the ships to attempt to enter port.
"If vessels enter port without permission then there could be contravention of Australian law, however there may be a good defence if the vessel is in distress," he said.
"Usually foreign vessels are not permitted just to hover or linger in the territorial sea, and if they do they can be asked to leave. However, there is an exception if the vessel is stopped or anchored because it is in distress. Again this comes back to exactly what kind of state the passengers and crew are in."
It is understood that the NSW cruise ships crisis has been escalated to the Federal Government for a resolution as it struggles to repatriate Australian citizens trapped aboard vessels elsewhere in the world.
A cruise industry source said the Federal Government should be mindful of the fact that, in negotiating with other governments to secure the repatriation of Australian cruise ship passengers, that it is not be seen to be flouting maritime law.
Sture Myrmell, president of Carnival Australia, operator of the Ruby Princess, has called for a "humanitarian approach" to be taken in relation to the crew of the vessel, which has left NSW territorial waters as demanded by the NSW Government.
Commissioner Fuller has ordered the ships to return to their ports of origin. However, some cruise ships are registered under "flags of convenience" in small and distant nations, like the Bahamas and Malta, for tax purposes and for labour law reasons. Such countries are unlikely to be willing or capable of receiving ships under such circumstances, with countless cruise vessels around the world denied permission to dock at international ports during the COVID-19 crisis.
Cruise ships tend to base themselves in unofficial home ports where they are normally welcomed for the economic benefits they bring to cities and towns.
Professor Stephens said: "The difficulty is that many of these vessels…do not have a safe 'home' to return to and are in 'no man's waters'. There needs to be an international solution to this issue in the longer term, which should include further clamping down on flags of convenience."
Although Commissioner Fuller said the cruise ships off the NSW coast do not pay taxes in Australia, the Australasian chapter of the Cruise Lines International Association estimates the cruise industry in 2018-19 contributed $5.2 billion to the Australian economy, much of it in NSW where Sydney Harbour is the premier port.
A military-style plan has been devised by Australian authorities overnight that will see naval helicopters with medical personnel sent aboard the remaining cruise ships off the NSW coast "in the next couple of days" to assess the conditions of stranded crews.
Anthony is the national travel editor for The Sydney Morning Herald and The Age.