Maritime Labour Convention
Seafarers and their families ensured of protection in cases of abandonment, death, and long-term disability
ILO member States have confirmed the amendments to the Maritime Labour Convention ensuring better protection to seafarers and their families in case of abandonment, death, and long-term disability.
By its very nature, shipping and the environments in which it operates, makes seafaring one of the most dangerous professions in the world.
A great deal has been done by the IMO to improve safety of life at sea (SOLAS) and publically records how incidents are reported and managed, but there is still more to do to help seafarers, and their families, receive fair treatment in complex cases where compensation is sought. If killed in a work-related accident, or if seriously injured, then seafarers or their dependents may have to embark on lengthy and complex litigation to seek compensation, at a time when health issues, stress or grief may be overwhelming.
“For seafarers, seeking the advice of a lawyer can be one of the most stressful events of their career. Not only are they dealing with the effects of the incident that has led them to that point, but they are also pursuing a course of action which too often seems fraught with confusion, difficulties and worries about expense.”
Deirdre Fitzpatrick, Executive Director, SRI
HOW MANY ACCIDENTS HAPPEN AT SEA?
Establishing accurate and comprehensive figures on the number of lives lost at sea has been notoriously difficult for a number of well-known reasons. Statistics usually include the deaths of passengers, leading to distortions when one incident may involve large loss of life.
Much also depends on the degree of compliance by flag states with IMO requirements on reporting serious casualties which include those involving loss of life, although the United Nations Convention on the Law of the Sea (UNCLOS) does legally require each state to cause an inquiry and cooperate in investigations.
The IMO Marine Casualties and Incidents database contains information collected on ship casualties from investigation reports received at IMO, and from factual data collected from various sources, although the data can’t be guaranteed.
During the 12-month period 2015-2016, figures show 206 cases of which 86% were deemed very serious or serious. These figures show an increasing improvement on the previous periods where total reported cases on the database showed 310 for 2014/15, 393 for 2013/14 and 433 for 2012/13. Whilst this provides an encouraging picture of improved health and safety at sea, it is not a predictor of trends and may not include all incidents.
Each of these cases represents the vessels rather than the total the volume of individual casualties from each ship. However, as an indicator, in 2012 the IMO Secretariat counted 1051 lives lost, compared with 1095 in 2011, 1501 in 2010, 2395 in 2009 and 1942 in 2008.
The numbers are improving.
COMPENSATION ENTITLEMENTS UNDER CONTRACT AND LAW
In the event of death or long term disability due to a work- related illness or injury, it is usually the ship owner that must provide compensation. This liability starts from the beginning of the employment contract until the seafarer has been repatriated, or until he/she can, for example, claim medical benefits under an insurance or compensation scheme. How and to what extent ship owners must provide compensation is set out in national law, the employment contract and any CBA if applicable.
Due to the global nature of shipping, seafarers also have special protection under international law in the case of death and injuries at sea. The ILO Maritime Labour Convention 2006 (MLC) in particular seeks to ensure that seafarers are protected from the financial consequences of sickness, injury or death occurring whilst they are employed on board a ship. Under the MLC, ship owners must have financial security for compensation in such an event to cover, for example, the expenses of medical case and treatment; food, accommodation and wages for a specified time or the cost of burial services. From January 2017, this also includes financial security to ensure compensation for contractual claims for death and long term disability. This means that all ships that are subject to the MLC must have certificates issued by an insurer or other financial security provider confirming that insurance or other financial security is in place to cover the ship owner’s liabilities, and also for contractual claims arising from seafarer personal injury, long terms disability or death.
COMPENSATION CHALLENGES FOR SEAFARERS
Regardless of the protections set out in national and international law, there are unique aspects of the working lives of seafarers that place them at a great disadvantage in their ability to obtain proper compensation.
- National schemes for compensating injuries and death, for example, vary widely. Some countries deal with the issue through social security schemes and/or workers compensation schemes; in other countries, this is covered by employment contracts or collective agreements negotiated by the unions; and in addition, national legislation in some countries provides for remedies in tort and for negligence. The value of a claim therefore can vary widely depending on the circumstance of the injury or death, and also depending on where a claim is pursued.
- P & I insurers working on behalf of the ship owners can actively participate (through the use of representatives and lawyers worldwide) at an early stage to prevent claims being pursued, or they could attempt to settle claims at less than the legal entitlement of the claimant. If the seafarer is unable to afford a lawyer, or there is no longer any income because the seafarer is injured or deceased, such tactics might prevail.
- If a ship owner operates without insurance or other form of financial security, then given the structure of the ownership of most vessels, the prospect of recovering proper compensation is very limited.
- It might become necessary for the seafarer or their dependents to resort to litigation to get compensation. The unique nature of their profession adds further complexity to this process. Any accident is likely to involve more than one jurisdiction – including the flag law, the law of the place of the accident, and/or the law governing the seafarer’s contract. The difficulties therefore of establishing where and when to sue, if necessary to do so, mean that access to justice can be denied by a series of legal doctrines and principles such as limited liability, periods of limitation, forum non conveniens and other forms of declining jurisdiction.
WHAT CAN SEAFARERS DO TO AVOID COMPENSATION ISSUES?
Firstly, seafarers should do their research and only sign up with reputable ship owners who are more likely to have adequate insurance cover and be able to provide compensation. As with many cases regarding seafarers’ rights, we recommend that seafarers ask for and check their employment contract to ensure liability and compensation is clearly covered in terms of entitlements in the case of illness, injury, disability or death. If you are unsure, or if the contract is unclear, you should ask for clarity from the ship owner or seek advice from a union representative or legal professional with experience in the maritime sector.
HOW TO FIND A LAWYER
If you are a seafarer or member of a seafarer’s family and are seeking legal advice, there are two types of lawyer that can help:
- If you are claiming for personal injury/death whilst working, in the place where the personal injury/death occurred; and/or one of the ports visited by the ship; and/or the country where the employing company has its registered offices or its actual place of business, you will need to engage with a Personal Injury Lawyer
- If you are claiming for a marine casualty or incident in the port where the marine casualty or incident took place; and/or the first port the ship berths at after a marine casualty or incident, you will need to engage the services of a Maritime Lawyer (with expertise in seafarers’ claims)
Seafarers can find lawyers through the following:
- Listed on the website of Seafarers’ Rights International (SRI). Here you will find a list of lawyers/law firms who have subscribed to a Charter of Good Practice for the Provision of Legal Services to Seafarers
- Listed in international guides and directories where specialist lawyers are set out and rated. Examples of these websites are www.legal500.com and www.chambersandpartners.com (websites in English)
- Listed on the membership bodies or regulatory bodies of the legal profession in specific countries. However often these websites will be in a foreign language
- Recommendations from friends or members of the family
- Recommendations from local trade unions or welfare organisations
- Recommendations from the local consulate
You can find more guidance on how to find and engage with the right lawyers in our free Fact File and Legal Guides, which can be downloaded on this website.