The Italian Ministry of Infrastructure and Transport appealed to the Council of Administrative Justice of the Region of Sicily regarding the suspension of a provisional detention measure in respect of a ship managed by a non-governmental organisation (NGO) dedicated to search and rescue (SAR) operations regarding people in peril at sea, notably migrants coming from the coasts of Africa and navigating through the Mediterranean Sea. Previously, the Regional Administrative Tribunal of Sicily (TAR Sicily) had requested advice from the Court of Justice of the European Union under art 267 of the Treaty on the Functioning of the European Union (TFEU): [see Sea Watch eV v Ministero delle Infrastrutture e dei Trasporti (Judgment), Cases C‑14/21 and C‑15/21, Judgment of the Court (Grand Chamber), 1 August 2022 (CMI1955).]

The detention measure had been put into place by the Italian authorities concerning a cargo ship employed for SAR activities. This case involved Port State Control (PSC) once the ship reached the Italian coasts. PSC implies inspections on foreign vessels conducted by port authorities to verify seaworthiness. The aim is to ensure maritime security and the prevention of marine pollution. For flag States, these inspections constitute a secondary line of defence against navigation occurring through ships not complying with international standards.

However, according to international norms, when the PSC official (PSCO) conducts inspections of a foreign ship, only verification activities concerning the validity of flag State certificates and other relevant documents on board are allowed. There is an exception where there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of the certificates, allowing the official to implement more detailed inspections.

Held: The Court rejects the suspension of the provisional detention measure, agreeing with the position of the appealing party.

The power and duty of control of the port State is justified, given that the relevant ship was classified as a cargo ship. SAR activities cannot be performed by any type of vessel. PSC must involve the verification of the suitability and seaworthiness of ships. Given the lack of provisions on requirements which an SAR ship should fulfil, the PSCO must implement measures strictly necessary to ensure navigation safety for crews, passengers, and the environment.

Furthermore, despite being classified as a 'general cargo/multipurpose' ship, the relevant ship was systematically involved in SAR activities, especially taking into account the relevant statute of the NGO managing the ship. The vessel in question was supposed to have a complement of 30 crew members, with security and hygienic equipment accordingly installed.

The Court also examined art 94 of UNCLOS, which establishes the flag State's competence and responsibility for its ships, except in the case of controls put into place by the port State. The port State has no right to reclassify ships, calling into question the relevant flag State certificates.

In conclusion, the Court highlighted the importance of the customary international law duty to assist people in peril at sea codified in art 98 UNCLOS, which represents an exception to PSC. Moreover, the Court highlighted that art 98.2 UNCLOS establishes that coastal States must promote the constitution and permanent functioning of efficient SAR, in order to protect maritime and aviation safety.