Maritime and Port Security 2005
Restrictions on Shore Leave: Any movement on this issue?
by Douglas B. Stevenson, Esq.
Director of SCI's Center for Seafarers' Rights
Summary: This updates the presentation “Restrictions on Shore Leave: Any Movement on This Issue?” given last September at the Maritime Legislation, Regulation & Policy 2004 Conference.
Shore leave is an ancient and cherished seafarers’ right that should not be denied except for compelling reasons. Seafarers should not be required to have a visa for shore leave. Contrary to the Facilitation Convention, the United States requires foreign crewmembers to have a D-1 visa to apply for shore leave in the United States. United States law authorizes the Secretary of Homeland Security to promulgate regulations providing conditions for waiving visas. Seafarers who are detained on their vessels in United States ports are detained because 1) they do not have a D-1 visa, or 2) they are denied shore leave by private terminals. Implementations of ISPS and MTSA have reduced detentions by private terminals. Widespread ratification, led by the United States, of the Seafarers Identity Document Convention (ILO-185) would remove visa obstacles to shore leave, and it would improve security.
The Seamen’s Church Institute is collaborating with the Coast Guard to identify and remedy access and shore leave problems related to ISPS and MTSA. The Coast Guard has established a policy advisory council to review policy issues related to ISPS and MTSA. The Intelligence Reform and Terrorism Prevention Act of 2004 requires the Coast Guard to submit to Congress a comprehensive program management plan for the transportation security card program required by the MTSA. The Coast Guard is considering promulgating regulations requiring foreign crew to have SID-type identification documents.
Seafarers’ Right to Shore Leave: For as long as mariners have gone to sea on merchant ships, shore leave has been a cherished right – but it is not an absolute right. Like most individual rights, shore leave must be balanced against other interests such as the vessel’s operational schedule and safety requirements.
Merchant mariners’ right to shore leave existed in customary maritime law long before articulation in the earliest written maritime codes of the Middle Ages. The traditional rule is that a ship’s master has the discretion to grant of deny shore leave. The decision to grant shore leave should not be at the master’s personal whim, nor should a master deny shore leave as a punishment. The law recognizes the necessity of shore leave for maintaining a mariner’s health and for the safe and efficient operation of the vessel. The United States Supreme Court decided in the 1943 case of Aguilar v Standard Oil Company that:
“The assumption is hardly sound that the normal uses and purposes of shore leave are ‘exclusively personal’ and have no relation to the vessel's business. Men cannot live for long cooped up aboard ship without substantial impairment of their efficiency, if not also serious danger to discipline. Relaxation beyond the confines of the ship is necessary if the work is to go on, more so that it may move smoothly. No master would take a crew to sea if he could not grant shore leave, and no crew would be taken if it could never obtain it. Even more for the seaman than for the landsman, therefore, "the superfluous is the necessary . . . to make life livable" and to get work done. In short, shore leave is an elemental necessity in the sailing of ships, a part of the business as old as the art, not merely a personal diversion. 318 US 724, 87 L Ed 1107, 63 S Ct 930, 143 AMC 451.
The International Maritime Organization Convention on Facilitation of International Maritime Traffic, ratified by ninety-two countries, including the United States of America, contains in Section 3.44, a modern codification of mariners’ right to shore leave.
“Foreign crew members shall be allowed ashore by the public authorities while the ship on which they arrive is in port, provided that the formalities on arrival of the ship have been fulfilled and the public authorities have no reason to refuse permission to come ashore for reasons of public health, public safety or public order.”
The International Ship and Port Facility Security Code (ISPS), which has been accepted by the United States, provides in Preamble paragraph 11:
“Recognizing that the Convention on the Facilitation of Maritime Traffic, 1965, as amended, provides that foreign crew members shall be allowed ashore by the public authorities while the ship on which they arrive is in port, provided that the formalities on arrival of the ship have been fulfilled and the public authorities have no reason to refuse permission to come ashore for reason of public health, public safety or public order, Contracting Governments, when approving ship and port facility security plans, should pay due cognizance to the fact that ship’s personnel live and work on the vessel and need shore leave and access to shore-based seafarer welfare facilities, including medical care.”
In MSC/Circ.1112 of 7 June 2004, the International Maritime Organization reminded Contracting Governments of their responsibilities in implementing the ISPS to afford special protections to seafarers and of the critical importance of shore leave. The exhortations contained in the Circular are based on the principles that seafarers have primary security duties under the ISPS, and they should be viewed as partners in the new security regime rather than as potential threats to security.
Similarly, the International Labor Organization’s Seafarers’ Identity Documents Convention (Revised), 2003 (ILO-185), which has not yet come in to force, confirms seafarers right to shore leave in its preamble:
“Being aware that seafarers work and live on ships involved in international trade and that access to shore facilities and shore leave are vital elements of seafarers’ general well-being and, therefore, to the achievement of safer shipping and cleaner oceans,”
ILO-185 also requires, in Article 6.5, port authorities to allow seafarers to have shore leave unless they have reason to refuse entry because of “public health, public safety, public order or national security.
The ILO is in the process of consolidating all of its maritime labor standards into one comprehensive convention. The draft Consolidated Maritime Labour Convention (not yet numbered by ILO) also affirms seafarers’ rights to shore leave in its Regulation 2.4:
“2. Seafarers shall be granted shore leave consistent with their health and well-being and with the operational requirements of their positions”
Visas Prohibited for Shore Leave: International Conventions codify customary international maritime practices that ship’s crews should not be required to have a visa for temporary shore leave. The Facilitation of International Maritime Traffic convention specifically prohibits member states from requiring seafarers to obtain a visa for shore leave:
3.45 Standard. Crewmembers shall not be required to hold a visa for the purpose of shore leave.
In addition to confirming seafarers’ right to shore leave, Seafarers’ Identity Document Convention ILO-185, specifies in Article 6 that seafarers shall not be required to hold a visa for the purposes of shore leave. It further requires port states to allow shore leave to seafarers holding valid seafarers’ identity documents. As stated above, this convention has not been ratified by the United States. It will come into force next Wednesday (9 February 2005).
United States Visa Requirement for Shore Leave: The United States requires foreign crews on visiting merchant vessels and aircraft to have a D-1 visa to apply for shore leave 8 U.S.C. § 1101(a)(15)(D)(i). Crewmembers who sign-off from their ships in the United States and depart on conveyances other than the ships on which they arrived on are required to have D-2 visas, 8 U.S.C. § 1101(a)(15)(D)(i). Crewmembers who wish to enter the United States to join their ship in the United States are considered transits and must have a C-1 visa, 8 U.S.C. § 1101(a)(15)(C).
Section 553 of the Enhanced Border Security and Visa Entry Reform Act of 2002 requires all visas issued after October 26, 2004 to be machine-readable, tamper-proof and have a biometric indicator. The requirement for visas to contain biometric indicators was extended until October 26, 2005. (Crew-list visas were eliminated last year because, among other things, they could not comply with the requirements of the Enhanced Border Security and Visa Entry Reform Act of 2002. The crew-list visas went out of favor with shipowners when their costs skyrocketed in February 1998.)
Individual D-1 visas must be obtained at a United States consulate at a cost of $100.00. They are multi-entry visas valid for up to ten years. Because of reciprocity, most are valid for five years. Merchant mariners customarily must pay for their own D-1 visas.
Visa Waivers and Paroles: 8 U.S.C 1282(a) Authorizes the Secretary of the Department of Homeland Security to promulgate regulations authorizing Customs and Border Protection (CBP) officers to waive visas. There are existing regulations in 8 C.F.R. 252.1(d) that authorize waivers for all or part of a crew. Neither the statutory or regulatory authority provide any criteria for granting visa waivers, but past waivers include instances where ships could not obtain a visa because there was no American consulate at its last foreign port, or because the ship received orders while at sea to sail to a United States port.
Parole provides another option for a seafarer to go ashore in the United States without a visa. A CBP parole allows a crewmember detained on board a vessel to temporarily go ashore for specific purposes, such as to conduct necessary ship’s business or to obtain medical care 8 U.S.C. 1182(d)(5); 8 C.F.R. 253.1.
Since November 2001, paroles and visa waivers can be authorized only at the CBP District Director level.
Pre-arrival Notices: The Coast Guard requires vessels to provide 96-hour advance notice of arrival before calling at a United States port. The Notice of Arrival information included lists of every person on board the vessel. The Coast Guard provides the crew lists to CBP where names are run through the Interagency Border Information System (IBIS) containing “lookout” databases maintained by the U.S. Customs Service, the U.S. State Department, the U.S. Bureau of Alcohol, Tobacco and Firearms, the U.S. Drug Enforcement Agency, the Royal Canadian Mounted Police and other law enforcement agencies. IBIS also includes data on arrests and warrants in the Federal Bureau of Investigation’s National Crime Information Center (NCIC) database and lookouts posted in the CBP’s National Automated Immigration Lookout System (NAILS).
Border Entry Formalities: When a vessel arrives in port, a CBP officer boards the ship and personally inspects each crewmember and his or her documentation, including passport or seamen’s book and visa. The immigration officer has discretion to grant or deny shore leave. If shore leave is granted, the crewmember is provided with a Crewman’s Landing Permit (Form I-95) authorizing entry into the United States for up to 29 days. The Crewman’s Landing Permit is a simple paper form that does not contain a photograph. If INS does not approve a crewmember’s shore leave, the crewmember is detained on board and not allowed to leave the ship. The ship’s master normally holds the crewmembers’ passports in the ship’s safe while the vessel is in port. Foreign crewmembers, therefore, often do not have a photo identification card while on shore leave. On January 18, 2005 the Coast Guard determined that when crew passports are required to be kept on the vessel and no other form of identification is available for the mariners, a photo ID meeting the requirements of 33 CFR 101.55 must be provided by the vessel’s owner or operator for the purpose of facilitating shore leave in the United States.
Difficulties in Obtaining Visas: Since 9/11, foreign mariners have encountered a variety of logistical problems in obtaining visas. Many foreign mariners work on ten to twelve month contracts with only one or two months vacation between contracts. In some countries where mariners live, United States consulates have such lengthy backlogs for visa application appointments that they cannot accommodate seafarers’ brief home leave schedules. Other consulates have required a letter from the mariner’s employer stating that their ship will visit the United States. Because many vessels operate from charter to charter, the employer often does not know at the time of hiring whether the ship will visit the United States during the course of the mariner’s employment. Once the mariner ships out, it is almost impossible to get an appointment for a visa interview at a United States consulate during their brief port calls. Even then, some consulates have refused to issue visas to non-residents of the countries served by that consulate. Furthermore, the $100.00 visa fee is a significant expense for mariners, many of whom earn less than $500.00 per month. In July 2003, in anticipation of eliminating crew-list visas, the U.S. State Department instructed all Embassies and Consulates to give priority to seafarers seeking crewmember visas. Presumably, seafarers should continue to be given priority treatment.
Shore Leave Detention Data from the United States: The Center for Seafarers’ Rights of the Seamen’s Church Institute conducted a nation-wide survey of shore leave detentions and chaplain’s access to ships in United States ports 11 through 17 July 2004. Christian seafarers’ centers from fifteen ports kept records during the week of instances where merchant vessel crews experienced shore leave denials on ships they visited or attempted to visit, as well as of instances where chaplains did not have access to a vessel.
The Center for Seafarers’ Rights chose the week of 11 – 17 July 2004 for its third shore leave survey, in order to assess any possible effects of the International Ship and Port Facility Security Code and the Maritime Transportation Security Act (mandatory as of 1 July 2004). The Center conducted previous surveys in February 2003 and in October 2003.
ILO-185 Remedy for Visa-related Shore Leave Problems: On 20 June 2003, at the United States’ initiative, the International Labour Organization adopted the Seafarers’ Identity Documents Convention (Revised) (ILO-185). ILO-185 enhances maritime security by setting international standards for a seafarer identification documents (SID) that provides reliable, positively verifiable and internationally acceptable identification. ILO-185 codifies mariners’ rights to shore leave and requires Member countries to accept SIDs in place of visas for the purposes of shore leave. Member countries must maintain electronic databases of SIDs that are accessible by authorities from all ILO Member countries.
Ratification and implementation of ILO-185 by maritime nations depends upon the United States taking the lead in ratifying and implementing the Convention - and on the United States accepting SIDs as a basis for waiving crewmember visas for shore leave. Countries will have no incentive to set up a SID system and mariners will have no incentive to obtain a SID if the United States requires crewmember D-1/2 visas in addition to SIDs.
ILO-185 SID’s would not serve as travel documents, but they would provide a basis for waiving a D-1/2 visa. Legislative authority already exists in 8 U.S.C. §1282(a) for immigration officers to waive visas in circumstances provided for in regulations. The Department of Homeland Security could promulgate regulations authorizing immigration officers to waive visas for crewmembers possessing conforming ILO-185 SIDs. In the alternative, Congress could enact specific legislation authorizing waiving visas for crewmembers who have valid SIDs.
The standards for SIDs enumerated in ILO-185 satisfy the technical requirements of the U.S. Enhanced Border Security and Visa Reform Entry Act of 2002 (e.g. machine-readable, tamper-proof, digital photograph, biometric indicator).
The combination of the ILO-185 card and existing security measures, including port of entry immigration interviews, would provide a sufficiently high level of security. Crewmembers not in possession of a SID would have to obtain a visa to apply for shore leave in the United States.
SIDs offer the best possible compromise between legitimate port security requirements and the need for crews to attend to their physical, emotional, and spiritual needs on shore leave – provided that the Convention is broadly ratified and implemented.
On 9 February 2005, ILO-185 will come into force, having been ratified by France, Jordan and Nigeria.
The Intelligence Reform and Terrorism Prevention Act of 2004 requires the Coast Guard to provide Congress with a comprehensive program management plan for the transportation security card program required by the MTSA. When Congress enacted the MTSA it recognized that the ILO was in the process of developing what became ILO-185. The Coast Guard is contemplating including in its report to Congress a proposal to require, by regulation, that all foreign seafarers have an identification document that conforms to the ILO-185 SID requirements.
 Several articles in the ancient admiralty codes mention or presume shore leave as a fact of maritime life. The general rule being that mariners may not leave their ship without the master’s permission but that they should be allowed shore leave when their ship is safely anchored. See Code of Wisby, Articles XVII and Article XXX. Article XX of the Code of Oleron specifies that when a vessel arrives in port, seafarers can go ashore, two at a time and also take one meal (but no drink) from the ship with them. Alexander Justice, in his commentary on Article XX explains the reason for this law “was to keep the Seamen in Health and vigor: for by encouraging them to go ashore, two at a time, when their Attendance was not necessary aboard, the Master gave them the opportunity to refresh themselves at Land, which is the best Remedy in the World for Scurvy, contracted a Ship-board by living on Salt Meats and Dry Bisket and being crowded up in a close Place for a considerable Time: Their Eating Fresh Provisions, and Breathing the free Air at Land, makes ‘em strong, and better able to go thro’ their Business.” Alexander Justice, A General Treatise of the Dominion and Laws of the Sea. (London 1705). See also The Laws of Wisby, Artic. XXXIII and LIV.
 On December 13, 2002 the Department of State proposed in eliminating crew-list visas in 67 Fed. Reg. 76,711. The Department of State published its final rule eliminating crew-list visas on July 21, 2004 in 69 Fed. Reg. 43515. A previous interim rule had eliminated crew list visas effective June 16, 2004.
 On February 1, 1998, the State Department raised the fee for crew list visas from $40.00 for each visa to $45.00 for each person named on the crew list visa. As a consequence of these much higher visa fees, many ship operators decided that they would no longer spend the money to obtain crew list visas for their crews, resulting in their crews being detained on their vessels in the United States. 63 FR 5098-5103, Friday January 30, 1998. The crew list visa fees have since been increased to $100.00 for each person named on the visa. 67 FR 62884-62886
 Under 33 CFR 101.55, personal identification is required to be: (1) Laminated or otherwise secure against tampering; (2) Contain the individual’s full name (full first and last names, middle initial is acceptable); (3) Contain a photo that accurately depicts the individual’s current facial appearance; and (4) Bear the name of the issuing authority. Further, the issuing authority must be: (1) A government authority, or an organization authorized to act on behalf of a government authority; or (2) The individual’s employer, union or trade association.