Legal representations of stowaways, i.e. formal definitions, are not neutral statements. They are designed to demarcate the boundaries of who and what constitutes a stowaway as this has practical administrative implications. The transformations of these formal definitions over the years highlight important changes that were introduced for specific administrative purposes. The International Convention Relating to Stowaways, 1957, commonly referred to as the Brussels Convention, established the first formal definition of a stowaway as:
a person who, at any port or place in the vicinity thereof, secretes himself in a ship without the consent of the shipowner or the Master or any other person in charge of the ship and who is on board after the ship has left that port or place. (IMO 1957)
According to this convention, for a person to be considered a stowaway, he has to board the ship while inside or in the vicinity of a port and has to remain on board after the ship has departed from that port. Although this convention never came to force, as it failed to acquire the required minimum number of ratifications, it stipulates that the cost of maintenance of a stowaway, disembarkation and repatriation shall be defrayed by the ship owner (article 4). The convention is not clear, however, on the costs associated with those who board a ship inside (or in the vicinity of) a port and are caught before the vessel has departed. Neither is the responsible party for these individuals addressed. The IMO, subsequently, adopted a resolution in 1997 (Resolution A.871(20)) that recommended ‘Guidelines on the Allocation of Responsibilities to Seek the Successful Resolution of Stowaway Cases’ (IMO 1997). This resolution tinkered with the above definition as follows:
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A stowaway is defined as a person who is secreted on a ship, or in cargo which is subsequently loaded on the ship, without the consent of the shipowner or the master or any other responsible person, and who is detected on board after the ship has departed from a port and reported as a stowaway by the master to the appropriate authorities.
Although ship owners are still deemed responsible for stowaways as construed above, there are two important phrases in this definition that were introduced. First, as opposed to the Brussels Convention, a stowaway does not only have to ‘secret himself in a ship’. Rather, the definition also captures those hiding inside a cargo that is subsequently loaded onto the ship. This should be seen in the context of containerisation that became widespread in shipping after the Brussels convention. Despite no mention of ‘charter party’ in these guidelines, we should also bear in mind BIMCO’s ‘Stowaways Clause for Time Charter Parties’ that was introduced in 1993 to clarify the responsibility of ship owners and charterers for costs incurred due to stowaways. In the 1993 stowaway clause, which was subsequently revised in 2009, charterers were made responsible for stowaways who gained access to the ship by concealing themselves inside a cargo (BIMCO 2010). The second change involved the inclusion of the phrase ‘who is detected
on board after the ship has departed from a port.’ While the guidelines still referred to those
individuals detected before the ship left a port or territorial waters as stowaways, they point out that no charge should be imposed on ship owners regarding detention and removal costs as well as penalties (see guidelines 4.3 and 4.4).
The FAL Convention, which was adopted in 1965 and entered into force in 1967, was amended in 2002 with important provisions that included a new section on stowaways (Section 4). The amendments also included new definitions that established a distinction between
‘attempted stowaway’ and ‘stowaway’.
Attempted stowaway: a person who is secreted on a ship, or in cargo which
is subsequently loaded on the ship, without the consent of the shipowner or the master or any other responsible person, and who is detected on board the ship before it has departed from the port.
Stowaway: a person who is secreted on a ship, or in cargo which is
subsequently loaded on the ship without the consent of the shipowner or master or any other responsible person, and who is detected on board the ship after it has departed from a port, or in the cargo while unloading it in
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the port of arrival and is reported as a stowaway by the master to the appropriate authorities. (IMO 2011a, pp. 9-11, emphasis added)
According to these definitions, one is a stowaway if he is detected after the vessel leaves port. However, similar to the 1997 guidelines, the FAL Convention also states in section 4.12.2 that for ‘attempted stowaways’ and ‘stowaways’ detected while the ship is still in territorial waters, ship owners should not bear any cost.
When it has been established to their satisfaction that attempted stowaways have embarked a ship in a port in their state, public authorities shall accept disembarkation of attempted stowaways, and of stowaways found on board the ship while it is still in the territorial waters […]. No penalty or charge in respect of detention or removal costs shall be imposed on the ship owner.
(IMO 2011a, p. 42)
The Republic of South Africa, whose ports are often among the top stowaway embarkation ports, has further tinkered with the FAL definitions effectively shifting the responsibility for ‘attempted stowaways’ to ship owners. The Department of Home Affairs Immigration Directive No. 9 of 2012 redefines a stowaway as ‘a person who without
permission, unlawfully boards a vessel at port of entry with the intention of travelling to a destination within or outside the Republic’ and sets out the terms under which a stowaway may
be allowed ‘entry’. The terms are, if the ‘stowaway’ is a ‘citizen of the republic’, ‘permanent resident holder in the republic’, ‘recognised refugee in the republic’, ‘in possession of a valid temporary resident permit’, ‘in possession of a valid travel document, passport or visa if so required’, not a ‘prohibited or undesirable person’, or ‘a person who may be allowed entry in terms of the provisions of an existing law’. It also spells out that in circumstances other than the ones stated, the ship shall be responsible for the cost of removing the stowaway from South Africa. The directive also adds, ‘a person who stows from one RSA port of entry to another
shall be handled by adhering to the criteria mentioned above’ (RSA 2012).
This does not entirely contradict the FAL convention. Section 4.12.2 of the convention quoted earlier includes the phrase ‘when it has been established to their satisfaction that
attempted stowaways have embarked a ship in a port in their state’. However, the challenge
emerges from the nature of evidence the immigration authorities are willing to consider in order to prove boarding took place in South Africa. The rationale behind this directive, as it points out, is that stowaways have been ‘allowed entry into the Republic unlawfully.’ I have indeed
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come across cases, from both the interviews and documents reviewed, that stowaways have been disembarked into the country without the notification of the authorities. I will discuss this in Chapter Eight when addressing the issue of disembarkations.
However, the immigration directive turns a blind eye to the many stowaways already residing in South Africa, most of whom have crossed land borders to enter the Republic. According to the rule, if a person is caught inside the ports or at the ships’ gangway before boarding, he will be considered a ‘trespasser’ and the authorities will handle the case. However, if he is found on the ship, then the onus will be on the ship to prove that he boarded in South Africa. The evidence accepted by the authorities involves the list of formal documents mentioned above. What complicates the issue further is that most of the stowaways in the country are foreigners, primarily Tanzanians. One P & I correspondent pointed out that he had never dealt with a South African stowaway, and highlighted the conundrum ship owners face as follows:
I have had a ship that the captain refused to sail because immigration said, ‘no, he's now a stowaway. He's your problem now.’ Captain refused to sail. The owners had to tell him to sail, go to the anchorage. And then, we organised travel documents and we took him off with the launch. Cost to the owners. So, there you hear the big moans and grunts, and I don't blame them. We know they got on board here. That's just a small loophole on the immigration side of things. You can't prove he's got on here, you brought him here. Never mind the fact that you've never been to a Tanzanian port or West or East African port. […] At the end of the day, you can't prove that he got on here, he's now a stowaway, cost to the owners and the club. (Zack,
P & I correspondent, SA).
A stowaway search company owner also elaborated on the difficulty faced by ship owners in proving that the stowaways boarded in South Africa.
We’ve had incidents where we’ve found people and they had documentation on them. When we call immigration, we show them the documentation, they turn around and say, ‘no, that’s false.’ And I mean, where would someone who’s homeless and basically living on the streets get access to an official stamp and photographs, et cetera, et cetera? We’ve had incidents where we found them with local foodstuffs that can only be bought here and we said,
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‘but yeah, and he was found with this food.’ ‘No, no, no, you, someone planted it.’ (Phillip, Stowaway Search Company, SA)
Nonetheless, one port security officer, while he was not able to provide actual figures, estimated that ‘about 95% - 97%’ were regarded as ‘trespassers’ (i.e. caught before they reach the ship or at the gangway), and pointed out that the port security team’s effort is ‘to prevent trespassers from becoming stowaways’. In light of these legal definitions, it is interesting to note how some of my participants either corrected themselves or myself in the usage of the word ‘stowaway’.
The whole problem is one of states, isn’t it? You start off with the need or desire for individuals to want to seek a future elsewhere for whatever reason, maybe for economic reasons, for political instability reasons, or as a way of human trafficking, drug trafficking, and just a way of keeping under cover. […] that problem always exists, and individually, the ship owners, even states, aren’t going to resolve that. So, therefore, we are always going to have the stowaways. Because that is going to transform to stowaways, or
rather, people trying to stow away. (Sarah, deputy claims director, P & I
Club A)
Interviewer: […] I know that there are large number of stowaways. For
example, in Cape Town, I’ve talked to some of them, and they estimated maybe like 500 or whatever.
John: The number of people attempting to become stowaways. Remember,
once they’re there, they’re no longer stowaway. They’re not even a stowaway attempting or getting into the facility. They’re only a stowaway when they board a vessel. (John, port security officer, SA)
These legal demarcations around who and what constitutes a ‘stowaway’ have little resonance with the stowaways’ own conceptions. The stowaways identify themselves as such for the entire timeline they desire, hope, aim and attempt to board ships. This status, or more appropriately identity and way of life, often spans many years. The stowaways I interviewed formed communities around the ports they were stowing away from. The implication of this is, while official reports only document those that are spotted at the point of contact with a ship, there remain a large group of people who identify themselves as stowaways living around ports.
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An indicative estimate by one key informant, for instance, places the number of stowaways living around the port of Cape Town at around 500. Christie (2016, pp. 105-106) makes a more informed estimate of the stowaway community in Cape Town. Based on ‘the number of subscriptions6 that are paid whenever a Beachboy dies’, he estimates their numbers to be between 150 and 300 individuals. ‘Stowaway’ as an identity and a way of life, which transcends the spatial and temporal limitations set around the word by the legal definitions, will be explored in the final section of this chapter. However, I would like to first address the ‘everyday’ representations of stowaways by industry actors in their interaction with stowaways. This is relevant as it impinges on the disembarkation-repatriation process as highlighted here and in Chapter Eight.