Sanctions & liability for Calling at Crimean ports: update

• Ports and Terminals

It is an internationally established fact that in March 2014 Russian Federation unlawfully annexed Crimea. On 27.03.2014, UN General Assembly adopted the Resolution “On Ukraine’s Territorial Integrity”, calling on States, international organizations and agencies not to recognize any change in the status of Crimea or the City of Sevastopol. Further Ukraine officially closed sea ports located at the territory of the Crimea for international navigation by the Order of the Cabinet of Ministers of Ukraine No.578-г dd. 30 April 2014.

On 04.07.2014 State Inspection of Ukraine on Safety in Maritime and River Transport officially reported about prohibition of the foreign flag vessels’ entry to Yalta, Kerch, Sevastopol, Yevpatoria and Feodosia. Since that time the abovementioned Inspection has been carefully monitoring the foreign flag vessels’ calls to Crimean ports and in June 2015 reported about more than 200 such vessels’ calls within the period.

Moreover, the new article 332-1 was incorporated to the Criminal Code of Ukraine and article 204-2 to the Code of Ukraine on Administrative Violations. Article 332-1 of the Criminal Code of Ukraine provides imprisonment up to eight years for such violation, with or without seizure of transport vehicles. Administrative liability (Article 204-2 of the Code of Ukraine on Administrative Violations) provides the fine in amount up to about 20000 USD or administrative arrest up to 15 days.

Internationally several countries as well adopted specific legislation (sanctions) against the violation of the Ukrainian sovereignty, in particular European Union and the United States of America. A person shall not be liable for violation of international sanctions, if it was not aware or did not have any good reason to believe that its actions would constitute a violation of the provisions stipulated in sanctions. However there are countries that have not recognized the actions of the Russian Federation in Crimea as unlawful. Those are Russia of course,  Afghanistan, Cuba, Nicaragua, Syria, Venezuela and some others.

International shipping community has also developed some other instruments to influence  violators. It is, i.e., the use of the mechanisms provided by ISPS Code (International Ship and Port Facility Security Code, part of SOLAS). Being closed the Crimean ports are considered as those which no longer meet the requirements of the Code, and their certificates of compliance have become invalid. And Ukraine is not responsible for the providing safety in the closed ports. Thus, upon a  vessel’s call at such port the issue of the vessel’s compliance with ISPS Code requirements automatically arises. The Code provides in such cases that the jurisdiction of the next vessels’ call can apply to the vessel preventive measures (expanded inspection, arrest or preventing the entry into port).

Some states of flag also apply specific sanctions against the vessels violating the Ukrainian law. Thus, on 26.08.2014 Moldova Maritime Administration issued the circular informing ship owners to avoid calls to closed ports of Crimea. It was also reported that the ships calling the Crimean ports are subject to deletion from the Moldova Shipping Registry.

Liability for violation of Ukrainian law

Fundamental legislation which stipulates grounds and frames of liability is the Law of Ukraine “On Securing the Rights and Freedoms of Citizens and the Legal Regime on the Temporarily Occupied Territory of Ukraine”. Under this law the illegal action for which the criminal responsibility is stipulated is not the call to closed Crimean ports itself. But it is the violation of the regime of entrance to and departure from the Crimea as the temporarily occupied territory of Ukraine. To be considered as the crime such entrance and departure shall be purposed to injure the state interests. In case of absence of the purpose to injure the interests of the state during the vessels’ call,  only administrative responsibility is applied. The liability being of criminal nature is provided for natural persons which is the Master of the Vessel and/or the Manager of the operating/owning company. In both cases (criminal and administrative liability) the crew shall be also accused for the fact of calling Crimean ports.

Vessel calls at closed ports of Crimea are treated as crime since 15.07.2014

Practice (in case of m/v “Kanton” in particular) shows that in such cases investigating bodies first of all take such measures as inspection and withdrawal of the vessel’s original documents.  Withdrawal of the vessels’ original documents not only gives the state bodies evidences in criminal proceedings but also serves as some kind of guarantee that the vessel will  not leave the port as this inevitably results in the Harbor Master prohibition to sail.

If the state bodies find evidences of the vessel’s call at the Crimean ports, the investigative bodies shall suspect the Vessel’s Master of crime commitment and shall initiate the court arrest of the vessel.  In case the appeal against arrest is late or rejected, the vessel may stay arrested for a long time until the court delivers final sentence in respect of suspected individuals: the Vessel’s Master, Manager Company’s or Ship owner company’s officers. The sanction against the vessel can be also applied which is her confiscation to the state’s benefit.

From the very fresh news, similar resolution upon withdrawal of the vessels’ documents was adopted on 08.06.2015 in respect of the vessel, flying Russian Federation flag and called at Port of Illichivsk. The reason is that on 19.05.2015, the vessel (without calling at Crimean sea ports) bunkered on the outer roads of the Port Kerch and applied for a pilot from «the self-proclaimed administration of closed port after the annexation of the Crimea.

Published in Shiparrested.