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13 April 2016
When a vessel arrives at an Argentine port, the migration authorities will proceed with crew and passenger clearance as to whether they stay onshore or at berth. If the only people on board are officers and crew members, it is more likely that there will be no issue with the clearance, as they do not require a visa. However, many companies allow seafarers (mostly officers) to sail with their family on board, and these are considered passengers under domestic legislation. An issue arises when a vessel is in transit and the master receives instructions to proceed to a certain port – such as Argentina – which requires an entry visa for passengers but not crew. This situation may result in undesirable circumstances for seafarers and their family members.
Under Article 38 of the Migration Act 25,871/2004, the manager, owner, master or person in charge of or responsible for the transport of people to and from Argentina by sea, river, air or land is equally responsible for transporting passengers and crew members. Infringement of the Migration Act will result in the migration authority rejecting the entry of anyone not holding a valid visa.
Under Article 40 of the Migration Act, the manager, owner, or master of a means of transport must return anyone without a valid visa to his or her country of origin or escort him or her outside of Argentine territory using the same means of transport on which he or she arrived in Argentina, or – if this is impossible – using another means of transport, within a final deadline.
Article 46 states that the Migration Office will punish failure to comply with these provisions with a fine of "up to three times the rate of the means of transport from the point of origin to the point of arrival in Argentine territory at the time of the fine". This rule is applicable when the cost of a passenger's transport can be determined (eg, when passengers are transported by air).
For cases involving merchant vessels with passengers, the Migration Office generally applies a minimum fine established under Article 46, which expresses that "in no case, the fine should be less than the equivalent of one thousand two hundred and nineteen (1,219) litres of diesel at the subsidised price for public transport or in the absence of the latter, the lowest price on the market for the individual consumer on the day of the imposition of the fine".
The practice of applying a minimum fine for passengers on board merchant vessels is common, but not automatic and the Migration Office will begin administrative proceedings where the local agent acting on behalf of the owner or charterer of a vessel is accused of an infringement. Owners and charterers through their agents will have the opportunity to challenge accusations of infringement if they believe that there are grounds to avoid a fine. Generally, proceedings last more than 18 months.
The amount of the fine will depend on the price of subsidised diesel for public transport, which is agreed every year by oil refining companies and the Ministry of Transport. The existing official price per litre of diesel for public transport is Ps4.5 (circa $0.31). Consequently, the amount of a fine could be calculated as $377.89 per passenger without a proper visa on board a merchant vessel.
Family members of seafarers holding a passport from countries such as India, the Philippines and China are requested to apply for a visa before entering Argentina. If not, they may not be allowed to disembark, causing them to have an unpleasant stay during the time that the vessel is in Argentine national territory.
There is still much to improve with the visa system for the families of seafarers, as the drawn-out and bureaucratic proceedings are exacerbated by a lack of accurate information on the topic in the seafaring community and among managers.
For further information on this topic please contact Francisco Venetucci at Venetucci & Asociados by telephone (+54 3476 421 556) or email (firstname.lastname@example.org). The Venetucci & Asociados website can be accessed at www.venetucci.net.
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