Executive Director’s welcome
WELCOME TO THE FIRST REVIEW FROM Seafarers’ Rights International (SRI). This report gives us an opportunity to talk in a little more detail about the work we have been undertaking here at SRI, and to outline future strategies in our work to protect the rights of seafarers.
As many of you will know, SRI was launched at the International Maritime Organization (IMO) in late 2010. It is a pan-industry global centre focused on promoting and advancing the legal rights of seafarers. I have been working in the area of seafarers’ rights for over 15 years, and the idea for SRI grew out of my realisation that the subject of seafarers’ rights lacked the resources needed to work strategically to meet the needs of the seafarer, and to generate more interest and commitment to the subject.
The legal aspects of seafarers’ rights are not always the most visible, but they underpin everything that the seafarer is able to do, and to rely upon. This underlines the importance of having an independent forum that is not just about reacting to seafarers’ problems on a case-by-case basis, but is forward-thinking enough to develop some sort of relevant architecture to plan how the rights of seafarers should be developed internationally, regionally and at national level. I am delighted to have been given the opportunity to take this initiative forward, and to have the help and support of the very prominent figures on SRI’s Advisory Board. The Advisory Board is strongly independent and impartial, and it ensures relevance in the setting of SRI’s work programme and quality in the execution of our projects.
SRI puts the rights of the seafarer at the heart of everything it does. It works in three main areas: research; education; and training. SRI produces research that is independent and impartial which is crucial in today’s tough economic times when the rights of the seafarer are in danger of being eroded. A key part of SRI’s job is selecting the best researchers in key jurisdictions from around the world to conduct the research. In the area of education, SRI provides educational programmes and internships for a variety of stakeholders. In the field of training, SRI develops and delivers legal training and consultancy programmes to meet the needs of stakeholders working for the benefit of seafarers.
Before the set-up of SRI, there was no established forum for the research and dissemination of ideas and information regarding employment law in the area of international maritime transport. The initiative to set up SRI was therefore a bold step by the first funders, the ITF Seafarers’ Trust charity. The challenge I found with SRI has been to start something from scratch with no previous blueprint to refer to. SRI’s brief is unique, as are the challenges it is facing. It is charting new research into a variety of associated areas and a lot of the questions we ask of those people who consider themselves knowledgeable in this area are throwing up answers and discussion points which some of them did not anticipate. It takes time therefore to find people who are genuinely interested and committed to working in the area.
What has been encouraging to me and my team is the support we have received from the industry for such a body to drive research into issues surrounding seafarers’ rights. There has been no opposition to the initiative from any of the various stakeholder groups, and the more I become involved in the project, the more I believe that my original intention of working for the benefit of seafarers’ rights was the right choice.
Starting with a blank piece of paper, the first task was to decide which subjects SRI should immediately get involved with. You could argue that any subject we chose could probably have used 100% of SRI’s time not to mention 100% of its budget. The challenge is to add value to a number of different subjects while also keeping up the momentum when it comes to putting together research in a wide range of subjects all of which ultimately feed back into a matrix. Because the seafarer is working in one environment after another, you could legitimately divide it up legally into certain areas but each area you research will be reinforced, and cross fertilised, by other areas and ultimately come together in a jigsaw. But at this stage it is just about dealing with the pieces in as detailed and as systematic a way as possible – not over doing one area but also developing each area sufficiently to bring the necessary added value.
A lot of lip service is paid to the service that seafarers provide but in SRI, we strive to show seafarers how they are genuinely regarded as an asset and not a commodity. The rights of the seafarer affect all stakeholders involved in the industry and SRI stands ready to embrace the views of all stakeholders with a genuine concern for the rights of seafarers. We look forward to our work ahead together.
In safe hands
“It gives me pleasure to introduce the Advisory Board and its members to you. The work of SRI, focused as it is solely on the rights of seafarers, is required to be of the highest legal standard. Most importantly, the results of its work must be capable of practical application by those in the industry, be they ship owners, unions, lawyers, academics and, not least, seafarers. The Advisory Board supports and assists SRI’s Executive Director in determining the strategic direction of SRI’s activities, and in ensuring independence and impartiality in SRI’s delivered work.” Brian Orrell, Chairman, SRI Advisory Board.”
SRI is more than fortunate to have such senior and experienced persons involved in its work. The Advisory Board members bring a multitude of experiences which ensures that diverse views are represented in the strategic planning of its work.
From earliest exchanges, it has been clear that the Advisory Board members are determined to safeguard the independence of SRI, and to appeal to all SRI stakeholders. I think it is appropriate to expand on the Board’s understanding of what it means by these terms. Board members strongly believe that SRI serves such distinct stakeholder groupings as: ship owners and those in the shipping industry; governments, government bodies and politicians; inter-governmental organisations, including the IMO, ILO and the EU; welfare organisations; seafarers’ unions; legal practitioners and judges; academics, universities and maritime training colleges and schools as well as the media in all its forms.
To ensure the integrity of SRI’s published research work, the Advisory Board has established an Editorial Group, including those of its number with appropriate editorial experience. This serves to meet the self-imposed criteria that published work should be of the highest standard in terms of authority, accuracy and completeness.
The actual work programme of SRI is reported elsewhere in this review. It is worthy of note, however, that Board members have contributed significantly, both in Board meetings and directly in their individual capacities, to ensure all SRI’s work has practical application and direct value to seafarers.
Of outstanding value to SRI has been the willingness of Board members to publicly ‘spread the word’ of its work. The wide recognition and endorsement of SRI in the industry, and indeed in legal and academic fora, owes much to their efforts. With the invaluable networking of such senior persons, the profile of SRI has attained pleasing levels.
The Board has sought to ensure that work in progress remains manageable but challenging, to prevent internal resources being over stretched. Nonetheless, the Board is proud of the significant output of SRI in these early years since its establishment.
Board members have participated in conferences on behalf of SRI, delivered speeches, and participated in Intern Programmes initiated by the Executive Director. This active involvement serves to demonstrate the ownership Board members have taken of SRI and its work.
With SRI now firmly established, the Advisory Board has been keen to support and assist the Executive Director in developing the education and training functions of SRI. Noting the success of the internship courses, the Board supports the provision of free education and training to some, such as seafarers, and of professional courses that would be available at a charge.
A detailed analysis of the needs and priorities of each of SRI’s stakeholder groups is currently underway to develop a systematic education and training programme to be introduced in 2013.
It is also established that SRI should provide legal research and education and training outputs for all such groupings, where the end result has the strong potential to develop improved legal protection and legal rights for seafarers. Also, that SRI should interact regularly with all of these groupings.
Board members also strongly believe that to develop seafarers’ rights where they do not currently exist, or where they do but they are not easily enforceable, requires the involvement of all stakeholders. By producing rigorously researched legal material that is authoritatively assessed before publication by highly qualified and respected practitioners, Board members are confident that all stakeholders will acknowledge the independence of SRI’s work.
It is an honour for me to be the Chairperson of a Board comprised of individuals of such high repute, all of who have an unswerving commitment to empower seafarers to realise their rights, and to support and assist SRI in its drive to develop seafarers rights where they do not exist.
It has been said that one can judge a leader by the team that forms around them. Well we are fortunate indeed to have Deirdre Fitzpatrick as our leader. Her team is the Advisory Board, every member of which is an enthusiastic recruit, serving to show that she is an excellent leader. SRI was her initiative, founded by her strong and totally committed drive to better the lot of seafarers.
On behalf of the whole Advisory Board, I would like to thank Deirdre for making the past two years enjoyable, always challenging and most certainly productive.
I also offer my thanks to our Advisory Board members for being tolerant of my chairing their meetings, making it all the more enjoyable for me.
Contextualising SRI and seafarers’ rights
SRI was launched on World Maritime Day in 2010, in the Year of the Seafarer, under the auspices of the Secretary-General of the International Maritime Organization (IMO). It is the first pan-industry initiative to seek to bring together expertise amongst stakeholders with the aim of promoting and advancing the legal rights of seafarers.
Speaking at the launch, David Cockroft, General Secretary of the ITF said: “The success of an independent body such as Seafarers’ Rights International is crucial to identifying and tackling the rights of seafarers and that is of interest to all industry stakeholders including the ITF”.
The seafaring profession is one of the most dangerous and seafarers often work in hazardous conditions. As mobile workers, they are highly vulnerable to ill treatment, exploitation, abuse and injustice. They operate within and across different national jurisdictions and are subject to different international and national laws. In some cases, there may be doubt as to what if any law is applicable or enforceable.
Seafarers’ rights is a complex area of law. It spans international and national laws, and it crosses law disciplines such as maritime, labour, human rights, criminal and environmental law. At any one time, a number of different states may have some interest in a particular ship and the seafarers that work on that ship. There are also unique challenges in the enforcement of laws for seafarers in what is a highly deregulated industry where there is functional separation of ownership, operation and regulation.
This is the context in which SRI started up. SRI is the first centre wholly dedicated to research, education and training in the legal rights of seafarers. It is not a campaigning organisation, nor is it a representative organisation. These roles are already well played by organisations such as national unions and the ITF. SRI is a tangible resource for stakeholders wanting to promote and advance seafarers’ rights.
On research, SRI monitors legal developments that affect seafarers, and develops and coordinates international networks of researchers, research bodies and universities in the fields of seafarers’ rights, remedies and interests. On education, SRI provides education programmes on seafarers’ rights, and publishes the results of research in order to stimulate debate on issues concerning seafarers’ rights. Training is a crucial element and the centre is hard at work developing and delivering legal training and consultancy programmes to meet the needs of stakeholders working for the benefit of seafarers.
SRI is funded by an initial grant from the charitable arm of the International Transport Workers Federation (ITF), the ITF Seafarers’ Trust. Although this funding is ITF sourced, it is important to note that SRI is an entirely independent organisation, embracing the views of all stakeholders in the maritime industry who may be part of the problems that seafarers face, but also who may be part of the solutions needed.
SRI intends to be a permanent and tangible resource and a symbol of the greater accountability and long-term commitment of the international maritime community to promote the development and dissemination of seafarers’ law, and to improve seafarers’ legal rights and their protection under a just rule of law. The vision of SRI is of the stakeholders of the whole maritime industry standing together to make shipping attractive to seafarers; an industry that recognises and respects the important contribution seafarers make to world trade, and consequently, to our lives.
SRI’s Mission Statement
SRI places the protection of seafarers’ legal interests at the centre of its concerns. Its mission is to advance seafarers’ rights in international and national forums through independent high quality research, education and training in the law concerning seafarers, to empower seafarers to realise their rights and to protect their diverse interests worldwide.
The rights of seafarers affect all stakeholders in the industry – ship owner, manager, crewing agent, flag states, port states, welfare bodies and unions. It is in the interest of the whole maritime industry to address the subject of seafarers’ rights properly and professionally so that the legal protection of seafarers can be improved and so that young workers are attracted to join the profession.
“A competent, well-rested and well-motivated crew is an essential factor in reducing operational costs by increasing efficiency, safe operations and protecting the owner’s investment in expensive vessels and equipment…The quality of the industry ultimately depends on the quality of the people in it,” wrote Judge Thomas Mensah, International Tribunal for the Law of Sea.
Seafarers and the criminal law: How guilty is your crew?
In April 2012, SRI made public the headlines of a survey it had conducted of 3,480 seafarers in the 12 months to the end of February 2012 concerning their experiences of criminal charges. The survey was conducted in eight languages, with responses returned from 18 countries and 68 different nationalities of seafarers. The headlines created shock waves, and for SRI demonstrate a worrying indictment of the plight of the seafarer facing criminal charges.
Of the seafarers surveyed, 8% had faced criminal charges; 4% had been witnesses in criminal prosecutions, while 33% knew of colleagues who had faced criminal charges. Almost 24% of masters in the survey had faced criminal charges.
Questions in the survey specifically asked about the experiences of seafarers who had faced criminal charges. 44% of seafarers reported that they were bodily searched; 87% who faced charges relating to the discharge of their professional duties said that they did not have legal representation; 91% of seafarers who needed interpretation services said that they were not provided with such services; and 89% of seafarers who had faced criminal charges said that they did not have their rights explained to them.
Seafarers were also specifically asked about their perceptions. 80% who had faced criminal charges felt intimidated or threatened. Concerning casualty inquiries and accident investigations, 46% of seafarers who answered the question said that they would be reluctant to cooperate fully and openly with such inquiries. Reasons expressed included: “The information that I would provide might be used against me”; “I would fear incriminating myself”; “Anything you say can be used as evidence against you”.
Overall, 81% of seafarers who faced criminal charges did not consider they had received fair treatment.
The problem of ‘criminalisation’ of seafarers has been an emerging one for over two decades now. The practice of charging masters and ships’ officers – after a maritime accident – appears to have originated back in 1989 in the United States with the strange, but unsuccessful, prosecution of Captain Joseph Hazelwood, the master of the Exxon Valdez. Since then the phenomenon has spread far and wide. Masters and ships’ officers in particular, but also other crew members, are now regularly prosecuted and frequently imprisoned for both professional and non-professional offences. In more recent years, the high-profile harsh cases have attracted the attention of the unholy trinity: the media, the politicians and the authorities.
For those in command of vessels today, the traditional privilege and honour associated with command appears instead to have become a risky and perilous burden. And for all seafarers transiting multiple jurisdictions on a daily basis, the risks of violating local laws – sometimes unknown to them – are high and a cause of great concern.
Image of the shipping industry
Global shipping has an image problem. It is not seen as an obvious career choice for today’s talented younger generation. Too frequently it has a bad image; perhaps worse, it has no image.
Two events, 100 years apart perhaps depict this – the loss of the Titanic in 1912 and the Costa Concordia disaster in 2012. The roles played by these two Masters will be remembered for completely different reasons.
Captain Edward John Smith, Master of the Titanic, is viewed as the stereotype of how a brave captain should act, working to the last to save lives before going down with his ship. Yet he is also blamed by many for causing one of the worst maritime disasters of all time. This despite the fact that – as several captains from other shipping companies testified at the disaster inquiries – it was not unusual for any captain to sail ships into ice regions at speed, provided the weather was calm and clear as it was on this night.
Captain Smith’s actions were not far from the thoughts of many observers when the Costa Concordia cruise ship ran aground on 13 January this year off the western coast of Italy with more than 4,200 passengers and crew. Over 4,000 passengers were safely evacuated from the vessel and whilst the investigation is on-going, it is arguable that the casualty could have been a lot worse than it was.
Yet the press rushed immediately to judgment of the Master. There were press shots of the arrested cruise ship Master masquerading under the headline of ‘Captain Coward’. If there was one picture that so dramatically encapsulated the failings of the shipping industry, it must have been the sight of a stricken cruise liner lying on its side with only half the lifeboats deployed.
Then as the press started to engage in its own speculation, the headline ‘Thinking about booking a cruise? The crew may be unprepared’ screamed out from the pages of the US edition of Newsweek. The UK Sunday Times was equally as scathing with its headline ‘Cruising: are you safe to sail?’
Captain Francesco Schettino was arrested on preliminary charges of multiple manslaughter in connection with causing a shipwreck in which 32 people were either killed or are missing, failing to assist 300 passengers, and failing to be the last to leave the wreck. He was subsequently also charged with failing to describe to maritime authorities the scope of the disaster (for which seven other officers and managers of Costa Cruises are under investigation) and with abandoning incapacitated passengers. Without doubt, the negative public relations the Costa Concordia disaster has thrown up will resonate within the shipping industry for years to come.
Criminalisation is not rampant in the maritime industry. But the fear of criminalisation, which probably would not have featured in a similar SRI survey if undertaken 20 years ago, is both real and sincere. And while it can be argued that statistically the chances of such a fate befalling any seafarer remain very low indeed, perception is a powerful driver.
If seafarers commit criminal offences then they deserve to be punished. But what the SRI survey really highlights is the frequent lack of due process for those who face criminal charges. It is unacceptable that seafarers are complaining of a lack of legal representation and interpretation services. It is of grave concern that seafarers are saying that they are not going to cooperate because they are worried they will end up on the wrong side of the law just by trying to be helpful. This is where it becomes totally counter-productive if the seafarers feel and say they are being regarded with suspicion.
As Michael Grey wrote in Lloyd’s List: “Just as known career criminals become the first suspects when a crime is committed, one might think that the habits of ship masters must make the lives of the waterfront detectives astonishingly rewarding.”
But as he continues: “Your friendly neighbourhood burglar or armed robber can count on legal representation when charged; not so 87% of seafarers. The authorities patiently read the burglar or armed robber his rights; not so for 89% of seafarers, who feel unfairly treated, intimidated and threatened.”
Seafarers are continuing to go to sea despite the fear of criminalisation, many seafarers are saying that criminalisation is causing them considerable concern. The consequences are already apparent, in that otherwise ambitious and well-qualified officers are declining promotion to senior ranks, believing that this would leave them more exposed to the risks of prosecution and a subsequent criminal conviction. There are documented cases of senior officers electing to terminate their careers because of a brush with the law, or deciding to seek alternative employment that would leave them less vulnerable to criminal prosecution.
Right across the shipping industry, there is a strong belief that somehow the tide which increasingly threatens seafarers with criminal sanctions and discriminates against them must be turned. Seafarers’ organisations, employers, regulators and non-governmental bodies – in addition to seafarers themselves – are agreed that this important body of essential workers needs protection from unfairness and injustice. Moreover seafarers need to be reassured that they will be treated properly should they become involved in an incident or accident, particularly under a foreign jurisdiction. It has been suggested on more than one occasion that the continued detention of crew members in the past, whether criminal charges have been laid against them or not, has been used as a bargaining chip in a subsequent case over liability and compensation.
Seafarers and the criminal law; towards a response
The interaction between seafarers and the criminal law is a cornerstone of the research being undertaken by SRI. And the question, of course, is what can be done to better protect Masters and seafarers facing criminal charges. Seafarers are exposed on a daily basis to a range of potential criminal legal risks, and additionally the fear of scapegoating over large scale disasters remains.
There have been a number of initiatives seeking to counter the problem of criminalisation, but a lot of what has happened has been in a piecemeal fashion only. Seafarers can benefit from a more comprehensive and structured strategy from the industry. For example:
Statistics on prosecutions. There are no comprehensive statistics available on the subject. The industry either does not have or does not make available accurate statistics on the extent to which seafarers face criminal charges; the rate of convictions; or the punishments given.
Effectively it is not known how many seafarers are currently languishing in jails worldwide. In addition to the survey that SRI undertook in 2011-2012, to gain a broader view of criminal charges faced by seafarers, SRI also carried out a review of all incidents involving criminal charges against seafarers reported in Lloyd’s List, TradeWinds and Fairplay, for the 12 year period from 2000 – 2011. There were 415 incidents reported in this period, involving 1,580 seafarers. Significantly over the period under review, the numbers of maritime criminal incidents showed a tendency to increase. But this is a reflection only of what is reported in the press. What is needed for the subject to be given the attention it deserves is for comprehensive and reliable statistics of incidents of prosecutions against seafarers to be available. Only if the industry itself treats the subject seriously will the authorities feel pressure to respond to answer the concerns about criminalisation of seafarers specifically and shipping generally.
Escalating legal standards. In recent years, several legal developments at international, regional and national levels appear to have criminalised a number of previously-considered lawful seafaring activities and created a blame culture, particularly in relation to environmental incidents such as oil pollution. For example, at the regional level, the European Directive on ship-source pollution criminalises discharges in violation of the MARPOL 73/78 Convention on the basis of “serious negligence”. At the national level, there is a multitude of legislation extending potential criminal prosecutions against seafarers for a wide range of offences. These developments indicate an extension of criminalisation of previously lawful seafaring activities, and in relation to the environment, a blame culture with often adverse consequences for seafarers.
And the problem appears to be not just about new laws being used against seafarers, but also about how existing laws are applied to seafarers. For example, at the highest global level, the United Nations Convention on the Law of the Sea, 1982 (UNCLOS), codifies the long-established rule on who has penal jurisdiction over seafarers involved in an accident at sea. In the event of a collision or any other incident of navigation concerning a ship on the high seas, penal action should be taken only by the flag state or the state of which such person is a national. This means, for example, that in the Prestige case, jurisdiction over the Master lay solely with the Bahamas and Greece, and not with Spain which acted against international law by jailing the Master.
Also Article 230 of UNCLOS provides that coastal states should not imprison foreign seafarers for pollution unless it was a wilful and serious act of pollution. This appears to be ignored with states frequently bringing “holding charges” to ensure that they can detain foreign seafarers for extensive periods of time. Public opinion, enraged by polluted shorelines, often effectively provokes a ‘political’ response as the authorities are pressurised by those suffering from the pollution despite an adequate international compensation regime being in place.
There are therefore many issues that could be explored around the legal treatment of seafarers, both in terms of how laws are being developed and how existing laws are being applied to seafarers, and whether this is in a fair manner.
Promotion of the Fair Treatment Guidelines. The issue of fair treatment has reached the attention of states and at the IMO, the Legal Committee took up the issue in 2004 when they endorsed a proposal to establish a joint IMO/ILO Working Group on Fair Treatment of Seafarers
Two years later in 2006, the working group produced ‘Guidelines on the Fair Treatment of Seafarers in the event of a Maritime Accident’. The objective of the Guidelines is ‘to ensure that seafarers are treated fairly following a maritime accident and during any investigation and detention by public authorities and that detention is for no longer than necessary’. The Guidelines now of course must be read in the light of the Casualty Investigation Code which contains provisions on Obtaining Evidence from Seafarers (Chapter 12) and which became mandatory through the SOLAS Convention.
Although there are many limitations with the Guidelines, they are a concrete statement of basic rights seafarers should expect. Many of the Guidelines are based on international legal instruments upholding human rights, and therefore they are not entirely without teeth. But there needs to be a lot more work done to promote the Guidelines and the standard of treatment of seafarers referred to therein if the results of the SRI survey are to be addressed.
Practical advice to seafarers. It is an inherent risk in the working life of seafarers that they may be subjected to criminal charges of a maritime or a non-maritime nature. As seafarers transit from port to port, they are subject to the entire range of criminal laws of those port states. They cannot know and they are unlikely to have been warned about local criminal laws, and hence they are at risk of committing an offence without any awareness or intention to do so.
Seafarers especially are vulnerable when being prosecuted in foreign jurisdictions. On the practical front, the needs of seafarers facing criminal charges in a foreign country are various. These include the speedy appointment of an experienced and competent adviser/lawyer to represent their interests; advice on how best to protect their interests on questioning, including the right to remain silent; to be brought before a court as soon as reasonably possible; to avoid pre-trial detention and to be able to post any bail or bond required to avoid detention; to be able to re-join their ship until trial and if this is not possible to know that they will be accommodated and fed within the port jurisdiction until trial; access to medical care and translation facilities as necessary; the ability to communicate with their family and to receive money or parcels from them; whether they are entitled to receive visitors if they are in prison; to know that their trial will be quickly arranged and fairly conducted; to be able to appeal any decision of the court; to know that at no stage of the legal process will they be subject to torture, cruel, inhuman or degrading treatment; and to know that they will be repatriated when the legal process is complete.
Often advice will be too late if the crime is suspected and the investigation already underway. And so seafarers need quick and easy access to information that will inform them before events happen also.
A safety net for seafarers facing criminal charges. There are various entities that could be involved in creating a safe and supportive network around seafarers facing criminal charges. These possible entities include; ship owners/ managers/manning agents; P&I Clubs/ other insurers; the Consul in the relevant port who represents the seafarer’s country; competent lawyers in the country of the ship’s flag; competent lawyers in the relevant port jurisdiction; local charities concerned with the welfare of seafarers in the relevant port jurisdiction; trade unions; and international charities concerned with human rights and fair trials.
At present the parts played by these entities, if at all, can be uncoordinated, slow and inefficient, leaving the seafarer in some cases exposed and vulnerable. At present it is a lottery whether a seafarer is sufficiently well-informed to know where to find help, whether that help is available, and whether that help is the best available. It is also uncertain if the seafarer will have legal protection. There may be insurance for the ship – that is invoked for the Master or officers – but not for the entire crew or for charges unrelated to professional matters. There may be local legal aid but that depends on the jurisdiction. Ultimately what is needed is a system that ensures mandatory application of human rights protections for seafarers facing criminal prosecution for any crime in any jurisdiction while employed as a seafarer.
The prospect of criminal charges is daunting for any human being, whether in his own country or even more so in a foreign country, and so it is for seafarers, entering foreign ports on a daily basis. For them, the risks are high and the consequences can be dire if fair and due process is not followed. The SRI survey has brought the seafarers’ concerns to the fore and should create momentum amongst stakeholders to better address the unfair treatment of seafarers. Much remains to be done to achieve the fair treatment of seafarers, requiring input from all role-players, but the effort is essential not only for the protection of serving seafarers but also to improve the image of the profession for new recruits to come.
The phenomenon of abandoned seafarers
One of the most alarming risks that seafarers face in the course of their working lives is the risk of abandonment. The phenomenon does not get the same media attention as other disturbances of maritime trade. But for the seafarers concerned, the experience of being abandoned, the consequences for their careers, and the lasting impact on their personal as well as professional lives can be a stark one of human hardship. For this reason, SRI has identified the problem of abandonment as one deserving of early attention.
“Abandonment can happen for a number of different reasons,” said Professor Couper, past director of the Seafarers International Research Centre at the University of Cardiff. “It is often a calculated economic decision by a ship owner facing bankruptcy, insolvency or the arrest of its vessel by creditors. You can identify quite early on the companies with cash-flow problems, and this is reflected in delayed payments to mortgage holders and other creditors, and simultaneously wages don’t get paid. In many cases, vessels are abandoned after they are detained by port state control inspectors as unseaworthy. The global economic downturn has hit some operators hard, but it is often the crews who come off worst.”
The abandoned case study
When a crew on a merchant ship has been abandoned in a foreign port, there is very often a depressingly-familiar pattern of events that start happening. They run out of fuel for generators, sometimes even food and water too. Often the ship owner stops answering his phone and cannot be traced. On other occasions, the ship owner remains in the background, sometimes threatening the crew, more often making false promises that he cannot keep. Onboard, phone cards run out of credit and seafarers cannot call home. The mood sinks and tempers flare, a potent mix exacerbated by boredom. And the impact of abandonment stretches far beyond the ship itself. When seafarers have not been paid for months and cannot get home, their families suffer too. Men and women who want nothing more than to work and earn an honest wage are left begging for handouts in order to survive. So too their families. The situation is often further complicated because of the complex, varied contracts common in the industry. “Many of them are under different contracts,” Professor Couper said. “They don’t know their rights. They are very much in legal isolation, and they get scared.”
Statistics on abandoned seafarers
An early indicator of conflicting views of the significance of the problem of abandonment is the realisation that there are no definitive statistics on the numbers of abandoned crews. Since 2001, the International Labour Organization (ILO) has hosted a database of cases of abandoned vessels and crews, but with its reliance on third parties reporting cases to the database, the database can never be a comprehensive record. Between 2001 and 2010, 136 ships and 1,612 seafarers were reported to the database. In 2009 alone, at the height of the global economic downturn, a total of 57 vessels were recorded as abandoned. It is often said however that the database statistics are the tip of the iceberg only, and that many cases simply do not make it onto the record.
Whilst statistics do not solve a problem, they are an important step in acknowledging the extent of the problem and hence the extent of the effort needed to address the problem. Without doubt therefore, a more dedicated approach to reflecting the true extent of the problem of abandonment would assist the seafarer.
Efforts of the international community
The subject of abandonment has been discussed by the international community in a dedicated forum for over 10 years.
At its seventy-seventh session held in April 1998, the Legal Committee of the International Maritime Organization (IMO) indicated its support for the establishment of an IMO/ILO working group to examine the issue of financial security for crew members with regard to abandonment. The Joint IMO-ILO Ad Hoc Expert Working Group on Liability and Compensation Regarding Claims for Death, Personal Injury and Abandonment of Seafarers (Joint Working Group) held its first meeting from 11 to 15 October 1999. Two years later in November 2001, the IMO Assembly (at its 22nd session) and the Governing Body of the ILO (at its 282nd session) adopted Resolution A.930(22) ‘Guidelines on Provision of Financial Security in Case of Abandonment of Seafarers’, effective 01 January 2002. The Guidelines ‘recommend measures to be implemented by ship owners to ensure the provision of an adequate financial security system for seafarers in case of abandonment… [and]… set out the main features and scope of coverage of the financial security system and also contain recommendations for certification of the financial security system’.
Following adoption of the Guidelines, the Joint Working Group continued to meet in parallel with the ILO meetings to adopt the Maritime Labour Convention 2006 (MLC 2006) towards a mandatory instrument addressing inter alia the problem of abandonment. The ninth meeting (March 2009) of the Joint Working recommended amendments to the MLC 2006 when it enters into force, to include mandatory provisions in the MLC 2006 requiring ILO Member states to ensure that a financial security system is in place for abandonment of ships flying their flags.
The precise wording of any future amendments to the MLC will be subject to further consideration in the first instance by the Special Tripartite Committee to be established under Article XIII of the MLC by the ILO’s Governing Body once the Convention is in force. Progress therefore is at a pivotal stage. States in preparing to ratify the MLC are enacting national requirements to meet their obligations under the Convention. While the amendment is still not in force, clearly in considering questions of mandatory financial security with respect to repatriation, both states and the insurance providers would be influenced by the discussion and recommendation of the Joint Working Group and the Guidelines in IMO Resolution A930(22).
‘Voyages of Abuse’
In the meantime, seafarers will continue to be abandoned and the questioning will continue how in this modern age, crew members continue to be abandoned in foreign ports without food or water, the financial resources to get home, or their earned wages.
Ships are the lifeblood of global trade, the cogs that keep the wheels of the world’s markets turning. About 90% of the goods bought and sold in the world are carried on the seas and oceans of this water planet. They keep fluid the logistics chains that stock our supermarkets and stores. They carry the oil that powers our cars and the fuel that sates our insatiable hunger for energy and every comfort that it brings.
But the global nature of shipping has led to a multi-jurisdictional system that is often hard to piece together, let alone pierce. A European ship owner can own a ship through a shell company in a Caribbean island, register it in a flag of convenience a long way from head office – an African country for example – and crew it with seafarers from the developing world who will work for lower wages and less restrictive employment conditions than their European counterparts. It makes for unusual and unique working conditions, a workplace that moves around the world and is subject to changing pressures and influences. It also makes it difficult to pin down responsibilities. The maritime industry is a secretive one that exists largely out of sight and out of mind, understood only by those who work within it. “This is the problem, this fragmentation and confusion ownership and state and the employment conditions and contracts of the seafarers on board,” said Alastair Couper.
Professor Couper originally made the point over a decade ago in his publication ‘Voyages of Abuse’ that “exploitation of the seafarer has always been easy, and has become more so with globalisation of the shipping industry, the use of flags of convenience, and the subterfuge of the real owners registering each ship of their fleet under a different company in various countries.”
It is fair to say that, much of the time, the system works well and most shipping companies are reputable operators. But sometimes, when things go wrong, it is seafarers who bear the brunt. Incredible as it might sound, it is possible in this day and age for a rogue ship owner to simply wash his hands of a vessel and abandon the crew onboard, safe in the knowledge that he cannot be held to account.
For those left to pick up the pieces in a case of abandonment, the lack of a framework to adequately protect seafarers is frustrating. “We see this time and time again, yet nothing is ever done to stop it,” said Jose Manuel Ortega, national coordinator for the International Transport Workers Federation in Spain, and a man whom has dealt with numerous such cases over the years. “How is it possible that a shipowner can just walk away from his crew?”
As a priority subject, SRI is focused on the principles contained in the ‘Proposal for the text of an amendment to the Maritime Labour Convention, 2006’ and how effective they can be in creating an effective solution for the abandoned seafarer. The work will include an analysis of the transposition into national law by states of the current repatriation and financial security provisions of MLC 2006, if any, and the steps being taken to prepare for entry into force of the Convention and amendments thereafter. This includes a focus on obligations of flag states, port states, and crew supply states. The immigration status of abandoned crew will be considered to assess any risk of deportation of abandoned crew.
Additionally, SRI is developing a searchable database of national and international laws and practices, which will include compliance and enforcement mechanisms, regarding the rights of seafarers in cases of abandonment. Essential for seafarers is practical information on what to do if they face a situation of abandonment. SRI is producing a series of advice notes designed for both seafarers and those assisting them on the legal issues when faced with abandonment. Across the project also will be regular reporting on abandonment.
Rear Admiral Charles Michel, former chief of the US Coast Guard Office of Maritime and International Law, and Amber Ward, staff attorney at the Operations Law Group of the US Coast Guard Office of Maritime and International Law, reflected on the plight of abandoned seafarers in a joint paper published in 2009. They summed up the problem concisely.
Flag state responsibility; the need to take standards seriously
The legal regime for the protection and advancement of seafarers’ rights sits squarely in the framework of international law, dominated as it is by the sweeping principle that ships have the nationality of the state whose flag they are entitled to fly. Linked to this are the so-called ‘rules of reference’ contained in Article 94 of the United Nations Convention on the Law of Sea (UNCLOS) by which flag states are called upon to take measures for its ships necessary to ensure safety at sea with regard, inter alia, to ‘… the manning of ships, labour conditions and the training of crews’ (paragraph 3); and that ‘each ship is in the charge of a master and officers who possess appropriate qualifications … and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship’ (paragraph 4). The effect of Article 94(5) is that all parties to UNCLOS must comply with ‘generally accepted international regulations, procedures and practices’ relating to … ‘labour conditions,’ and this clearly opens the spectre of flag State responsibilities in respect of UN human rights treaties and the ILO conventions that may be considered to be generally accepted international regulations, procedures and practices relating to labour conditions.
These considerations are of vast consequences for seafarers whose working conditions are often impacted by flag state laws and practices. The ease of registration and re-registration of ships has a sharp impact on the seafarers on board whose rights may be enhanced or reduced under the new register.
Choice of flag
In the modern maritime industry, the choice of flag state has been compared to a vast, international bazaar, in which the delighted buyer of ship registry services can find an accommodating flag to suit whatever his criteria might be. Even traditional flag states no longer regard their maritime authority primarily as the enforcer of standards, but as a marketing organisation which tries to ‘grow’ the flag by attracting foreign owners or persuading their own nationals to return to their colours. It has been said that on this basis, the vast majority of flag states have become open registers.
There is, in fact, a large and competitive market for ship registry with the tradit-ional registers, the open registers or flags of convenience and the newer intern-ational registers, vying for custom, just as does any other concern selling to the maritime industry. All boast of their tonnage and keenly examine their posi-tion on the international league tables which indicate their commercial success.
The sheer size of the international flag state ‘bazaar’ that is available to ship owners tends to hide the considerable variety in flag state quality, which is a concept that has assumed an importance all of its own. It has reflected upon the industry’s image – witness the reaction of the non-maritime media when – shock and horror – a ‘flag of convenience’ (FOC) vessel is involved in a marine accident. All the various categories of flag – traditional, open register, flag of convenience, international register may be found on a quality spectrum which ranges from excellent through to pretty disgraceful.
Growth of international registers
The growth of the ‘international’ register requires some explanation. It may be defined as a flag open to foreign tonnage, located in its home nation state (or in some offshore location associated with it) but closely associated with its home domestic administration.
The international register grew out of necessity and the need to provide some adequate reaction to the disappearance of tonnage to the FOCs. The host home state regards the international register as a means of maintaining a base of maritime expertise which would otherwise disappear if the whole fleet sailed away to FOC havens. It may itself be effective in preventing an exodus of its domestically flagged fleet to more attractive registers. There may be political advantages in that the government of the day does not have to answer awkward questions about the decline of the domestic fleet. Indeed, some traditional flags have seen spectacular growth in the tonnage registered in their international registers, with domestic tonnage shifted across to the international register book supplemented by large numbers of foreign flag ships, which may have no practical connections with their new host.
Flag state accountability
For some years, there has been growing pressure for more robust action against flag states which are seen to have a lax and liberal attitude to poor quality ships. There has also been a considerable increase in the intensity with which the quality of the flag state is scrutinised, both by regulators and inspectorates that are independent from government. Politicians are galvan-ised into action by marine accidents, particularly when the marine environment is harmed by spilt oil, and, when these politicians are located in former proud ‘traditional’ maritime nations, and the casualty is flying the flag of one of the ‘free and easy’ registers, it is not surprising that there is a certain amount of pressure for draconian regulation.
The auditing of a flag state by others invariably cuts across the sovereignty of the flag state. And this has generated some reluctance among many of these weaker flags (all of which have a voice at the International Maritime Organization (IMO)), to subject themselves to the IMO Member State Audit Scheme, participation in which is currently voluntary. The plan to institutionalise the Scheme, and make it mandatory, was agreed by the IMO Assembly when it met for its 26th regular session from 23 November to 2 December 2009. The plan, adopted by the Assembly through resolution A.1018(26), will see the IMO Member State Audit Scheme phased in as an institutionalized, mandatory scheme, through the introduction of appropriate requirements in the relevant mandatory IMO instruments. The timetable ahead of preparatory work for the commencement of an institutionalized scheme will include amendments to the relevant mandatory instruments, and a continued debate on the confidentiality of mandatory audits. From the seafarer’s perspective, the more transparency the better, providing greater safety assurances to the crew on board.
Alongside flag state responsibility is the now noteworthy role of the port state inspector, encountered in ports all over the world. The best performing flags boast of their position on ’white’ or ‘grey’ lists of flag states and use this performance criterion to attract new tonnage to their flag. ‘Blacklisted ‘ flags find that their ships are subject to greater frequency of inspections and are hopefully persuaded to reform their marine administrations. Port state inspection might be thought of as a ‘last resort’ to address the poor performing flag states, but has genuinely become a complementary system that has become globally established to the benefit of ship standards. It will hopefully continue to improve.
Not surprisingly, seafarers and their representative organisations have been able to find little that is positive in the burgeoning business of ship registration. The failure of the Convention on Conditions for the Registration of Ships (the Registration Convention) in 1986 to define what was required of a ‘genuine link’ has left the options without limitation and created a precarious environment for seafarers. Reliance remains focused on flag state responsibility which is an on-going task across the industry. The place of seafarers’ rights within that accountability is often vaguely described and with little precedent.
Here SRI sees the need to identify clearly the responsibilities of flag states in respect of the human rights of seafarers, regardless of the conventions that flag states are party to. And the goal ahead must be to see the Maritime Labour Convention fully encompassed in a transparent mandatory audit scheme for the better protection of the rights of seafarers.
Education and training; critical to our mission
One of the most productive ways to promote and advance seafarers’ rights is in the area of education and training. For this reason, education and training are critical elements of the mission of SRI which will be fully developed in the work programme of SRI’s in the years ahead. The challenge will be how to direct such a programme in the face of a number of stakeholders with differing needs around both education and training.
One of SRI’s early initiatives has been to host two internship programmes for maritime law graduates during the summers of 2011 and 2012. In the first year, we accommodated four graduates for one month and offered them the opportunity to work on cases and practical research so that they could understand some of the day to day issues affecting seafarers. In the second year, departing from the traditional intern model, SRI hosted 17 graduates for an intensive week on issues concerning seafarers’ rights. SRI is committed to delivering education in a variety of forms, including further intern programmes as appropriate to provide maritime law students with insights concerning seafarers that would not normally be available to them.
SRI is pledged to developing education and training programmes on rights for seafarers themselves, and for other players who are dedicated to assisting seafarers with their problems, including welfare workers and union officials. Traditionally seafarer training is typically focused on the technical requirements needed to obtain the necessary certificates. It rarely contemplates the wellness of seafarers at sea, or what seafarers need to know if they face a legal problem in a foreign country far from any support mechanism that might be available in a national context. Legal information may not be readily embraced until a problem arises but the absence of knowledge on seafarers’ rights leaves the seafarer vulnerable and dependent. Equally for those seeking to assist seafarers with their problems, there is little material that is easily accessible to guide the problem to some form of resolution. Every situation is different and needs a different response, but again, the lack of resources in this area means that for third parties seeking to assist seafarers, information is largely self-taught.
Here SRI considers it can make a contribution with practical guides on legal issues affecting seafarers for use by seafarers themselves or by third parties seeking to assist and advise seafarers. The range of guides could be vast but ultimately may link to an overall scene of the realities of seafarers work-related problems.
Linked to the ambition to make information on seafarers’ rights more readily available, one of SRI’s key projects is to develop a searchable database of seafarers’ rights at the international and national levels. Planned content includes international regulations on seafarers’ rights; legislation of nation states as it applies to seafarers case law; as well as journal articles and newspaper articles on subjects relevant to seafarers.
The database will be built up over time, concentrating at first on material from SRI’s research projects and including practical guides as they are developed. The intention is that ultimately the database will be wide-ranging and a useful tool for seafarers and their representatives, lawyers representing seafarers, shipping interests, academics, students and the media. It is planned that as much information as possible on the database will be free to all users in order to encourage the dissemination of knowledge on seafarers’ rights.
One of the most common complaints handled by seafarer organisations is unpaid wages under one of the many different contracts that a seafarer may have governing his employment. Sometimes this situation is capable of resolution and at other times it escalates to an abandoned crew. Delayed or unpaid wages obviously create financial trauma for the seafarers concerned, and for their families also who are often dependent on the monthly allotments. Seafarers often demonstrate remarkable faith in their employers, believing that the wages will arrive in one port or the next, and hence they allow the unpaid wage bill to accumulate before realisation dawns and they seek help. This is an area on which SRI has also focused, providing practical and useful guides for seafarers facing the problem of unpaid wages.
Unpaid wages is an area steeped in legal history which is still evident in how the situations can be handled today. The regulation dates from the 19th century when the customary rules of the sea, and the edicts of particular ports, were increasingly overlaid by State intervention. Whilst the laissez-faire culture of the 19th century dominated the common law courts, the admiralty court exercised a general jurisdiction based on liberal and equitable principles in its dealings with contracts between shipowners and seafarers. In 1823, in Harden v Gordon, Justice Story, in a memorable opinion, quoted in part, 199 years later by the U.S. Supreme Court in Garrett v Moore-McCormark Co. Inc, laid down those basic principles which in a large measure explain the ‘ward of admiralty theory’ and its application to releases given by seafarers when he said:
“Every court should watch with jealousy an encroachment upon the rights of seamen, because they are unprotected and need counsel; because they are thoughtless and require indulgence; because they are credulous and complying; and are easily overreached. But courts of maritime law have been in the constant habit of extending toward them a peculiar protecting favor and guardianship. They are emphatically the wards of admiralty; and though not technically incapable of entering into a valid contract, they are treated in the same manner as courts of equity are accustomed to treat young heirs, dealing with their expectancies, wards with their guardians and cestuis que trust with their trustees. They are considered as placed under the dominion and influence of men, who have naturally acquired a mastery over them; and as they have little of the foresight and caution belonging to persons trained in other pursuits of life, the most rigid scrutiny is instituted into the terms of every contract in which they engage. If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transactions is that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as inequitable.”
In 1825 in the Minerva, Lord Stowell (the leading British admiralty judge) said, speaking about merchants and seamen:
“On the other side is a set of men, generally ignorant and illiterate, notoriously and verbally reckless and improvident, ill provided with the means of obtaining useful information and almost ready to sign any instruments that may be proposed to them; and on all accounts requiring protection, even against themselves.”
These attitudes were built on a conviction that seafarers were irresponsible by nature and disadvantaged as a class and that the individual seafarer was incapable of effectively bargaining with his employer. When the law did provide benefits for seafarers, it treated them as objects of protection rather than rights bearing legal persons with legitimate claims and expectations.
Today the historical development of the maritime lien for seafarers’ wages can be seen in most jurisdictions. A maritime lien is a privileged claim upon the ship: the ship is treated as a wrongdoer, not the owner, and hence the seafarer can enforce his claim against the asset of the ship. This is particularly useful for the seafarer since it is often difficult to locate the real owner of the ship.
The concept of a maritime lien is recognised by both common law and civil law systems. Because of the international nature of the subject, it is one that is particularly apt to be regulated by treaty or Convention. There are three international conventions governing maritime liens. Claims by seafarers are, however, secured and preferred by maritime liens in all three conventions and in the laws of most states.
On 2 June 1931, the International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages 1926 (the ‘1926 Convention’) entered into force, and 25 states are bound by the 1926 Convention. These are Algeria, Argentina, Belgium, Brazil, Cuba, Estonia, France, Haiti, Hungary, Iran, Italy, Lebanon, Luxembourg, Madagascar, Monaco, Poland, Portugal, Rumania, Spain, Switzerland, Syria, Tunisia, Turkey, Uruguay and Zaire (now the Democratic Republic of the Congo).
The International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages 1967 (the ‘1967 Convention’) is not yet in force. Only six states are party to the 1967 Convention. These are Denmark, Morocco, Norway, Sweden, Syria and Vanuatu. The Convention is not binding on these countries since it is not yet in force.
The International Convention on Maritime Liens and Mortgages 1993 (the ‘1993 Convention’) entered into force on 5 September 2004, and 13 states are bound by the 1993 Convention. The states are Ecuador, Estonia, Lithuania, Monaco, Nigeria, Peru, Russia, Spain, St. Vincent and the Grenadines, Syria, Ukraine and Vanuatu.
The maritime lien for claims by seafarers is designed to improve the prospects of the claims being paid. To enforce a maritime lien, the ship must be arrested. Arrest is a procedure in maritime law that allows a ship to be seized and detained under judicial authority (legally prevented from moving or trading) as security for a claim or judgment. If necessary, the ship can be sold to satisfy the claim or recover a subsequent judgment if favourable to the claimant seafarer. It is a powerful weapon for a claimant.
SRI plays an important role in assisting seafarers by providing practical guides on what to consider before a seafarer might seek an arrest of a ship for unpaid wages. The procedure will be different in each jurisdiction and hence the considerations may reach different conclusions. Many port states seek to demonstrate how claimant friendly they are; others have a hostile attitude to foreign claimants which may result in an invalid claim.
There are many considerations for a seafarer contemplating arrest of his ship including:
- Is it necessary to instruct a lawyer to arrest the ship? If yes, is any form of government legal assistance/aid available for the (foreign) seafarers?
- Is it necessary to place a financial bond in court before an arrest of ship can take place?
- Has the market value of the ship anything to do with a ship’s arrest and auction?
- On average how long does it take before the arrest order is granted by the court?
- Will the authorities of the arrest port demand appointment of any watchman to safeguard the ship?
- If the seafarer claimant remains on board, who will look after the seafarer during the arrest, including food and provisions?
- If the seafarer claimant remains on board, will he be paid wages whilst waiting for the ship to be sold?
- On average how long does it take before an arrested ship is sold?
- Can a seafarer claimant be repatriated before the legal claim is completed?
- Will the cost of repatriation be included in the legal claim?
- What claims will have priority against the sale proceeds ahead of the seafarers’ unpaid wages?
- Are there any other useful procedures for a seafarer claimant?
It will always be important to take local advice on all matters relating to maritime liens and arrest of a ship, and hence the SRI guides are jurisdiction specific focusing on the above and any other specific issues in the jurisdiction concerned.
For seafarers, seeking the advice of a lawyer may 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 this point, but they are also pursuing a course of action which seems too often fraught with confusion, difficulties and worries about expense.
How to the find the right lawyer? What should that lawyer be told? How should legal fees be negotiated or free legal advice secured?
Where to claim
Seafarers’ rights are generally enforced at a national rather than an international level, but the courts of different national countries could be chosen to hear a claim. Claims can be brought against an individual or a company, and most countries recognise a seafarer’s right to claim (in relevant instances) against the ship by having it arrested. Identifying these issues is a matter for experienced maritime lawyers. Finding and retaining a suitable lawyer in the appropriate country is the first step and this will often depend on the nature of the claim of the seafarer and the particular circumstances of the incident giving rise to the claim.
Dealing with lawyers
Having determined the country in which the lawyer should be employed, it is important for any claimant, and for a seafarer, to find a lawyer who has the right expertise and experience for the legal problem. Lawyers might be found by recommendation (family, friends, colleagues, local trade unions or welfare organisations). Alternatively members or regulatory bodies of the legal profession in the country concerned can provide names of suitable legal experts.
Instructing a lawyer
Once a lawyer has been identified, it is important to arrange an early meeting with him to explain the nature of the case and to establish a good working relationship. It is important to establish whether there is a legal case and whether any urgent steps need to be taken to protect the seafarer’s interests: in particular there may be a time limitation before which certain steps have to be taken, or there may be an urgent need to arrest a ship to provide security for a seafarer’s claim. Many lawyers charge little or noth-ing for the first interview. This should be established early. It is important to prepare as much as possible for the first meeting, and to bring all relevant paperwork.
What happens now?
- The lawyer will check there is no conflict of interest in taking on the case
- Once the lawyer has confirmed he can represent the seafarer, the seafarer will be asked to provide information about himself. This can be simple or detailed and will include, for example, proof of identity and permanent address.
- The lawyer will provide a client with ‘terms of engagement’ setting out how he will act and the terms on which he will be paid. These terms need to be read carefully before they are agreed to.
- It is important that the lawyer explains the options for sorting out the problem; the chances of the seafarer getting the result he wants; how long the case will take; a cost estimate; whether legal aid is available; what may have to be paid if the seafarer loses the case; and what action should be taken if the seafarer is unhappy with the lawyer’s services. The lawyer must follow professional rules, including keeping information provided private and confidential. It is important that the seafarer understands what the lawyer has said and is not afraid to ask questions. During the case, the lawyer should keep the seafarer regularly informed of progress.
Legal fees arrangements
Lawyers are paid for their work in a variety of ways, so an individual must establish the fee and billing structure.
Hourly charges: Most lawyers charge for work on a time-spent basis, and while more experienced lawyers may have a high hourly charge-out rate, they may be able to complete the work faster than a lower rate lawyer charging less. Lawyers in large firms usually have different fee scales with senior members charging higher fees than young associates.
Contingency fee: Commonly referred to as ‘no win-no fee’, the lawyer does not have to be paid unless he is able to recover some money in a settlement or by a court judgment. While the lawyer’s fees (if any) will be payable at the end of the case, his expenses may be payable as they arise.
Retainer fee: Here the lawyer is paid a set fee, perhaps based on an hourly rate. The retainer is like an advance payment against which future costs are billed. If the fees go above the retainer amount, the client must pay that amount and additional fees beyond the retainer are often required when a matter goes to court.
Flat (or fixed total) fee: This is generally offered if the case is relatively simple. It is important that the services and expenses covered in the flat fee are ascertained. Often the total bill is the flat fee plus costs.
Statutory fee: A court may set and approve a fee that the client must pay. The availability of this arrangement depends on the law of a particular country.
Finding legal aid
Legal aid is a system of public or private funding to enable low income earners to obtain legal services. It will not be available for every type of legal problem and is gen-erally available to ensure equality of access and the right to legal representation.
Various types of legal aid may be available to the seafarer. It may be that an employer is prepared to fund legal fees (for example in a criminal matter) which will be paid through an insurance company.
Public defenders: Most governments provide free legal representation to persons who have been charged with a criminal offence. Some countries provide free legal services for all criminal offences, whereas others only provide it for serious crimes such as murder.
Legal aid clinics: In many countries, the government funds legal aid clinics but they only handle cases concerning the impoverished, and may only take certain types of cases.
Pro bono legal services: Lawyers working in private law firms often work a portion of their time on ‘pro bono’ cases, that is, where for the public good, the lawyers provide their time free of charge where the individual cannot afford to pay for the legal services. It is always worthwhile for the seafarer to inquire if the lawyer provides pro bono legal services, and if he/she would be eligible.
NGOs and statutory bodies: Certain non-government organizations (NGOs) representing groups of workers such as seafarers, or statutory bodies such as human rights authorities, often offer free legal services to individuals who have had their rights violated. This can be established at a local level.
Free online and telephone advice: Many websites provide free legal information and advice. There are also a number of legal hotlines that seafarers can call to get legal advice. However websites and legal hotlines will only provide initial advice, and it is important that the seafarer consults a lawyer for specific advice if he/she has a legal problem.
If the seafarer is dissatisfied with the way the case is handled by the lawyer then a complaint should be made to the lawyer/law firm in the first instance. If the lawyer has broken any rules of professional conduct, then a complaint can be made to the lawyer’s professional regulatory body. If the lawyer has been negligent or been discriminatory then the seafarer may be able to take legal action against the lawyer.
Seafarers’ rights in the maritime industry
As shipping goes through its toughest crisis yet, so does the need for the work of SRI to develop and expand.
The underlying problem in today’s shipping industry is massive overtonnaging across all vessel sectors – fuelled by significant newbuilding order-placing in the months leading up to the Lehman Brothers crash in Autumn 2008. The shipping markets are controlled and influenced by market forces and any imbalance in vessel supply versus cargo supply or vessel demand will naturally have a detrimental effect on freight revenues.
World trade is still growing but so is the size of the world fleet. According to broker reports, the global dry bulk fleet, for example, grew by 9% between 1 January and 1 October 2012 as newbuilding deliveries exceeded demolition numbers. But it must be noted that the rate of scrapping has significantly increased with the 2011 full-year equivalent volume scrapped in 2012 by 1 September. Demand for large bulk cargoes – iron ore, coal and grain – is still growing and likely to continue to do so for some time. However, the cooling Chinese economy has meant that the growth in steel production has slowed, leaving iron ore inventories at relatively high levels. A number of high-profile iron ore production projects have been abandoned or delayed as the price of ore has fallen close to the cost of production and for most of the period the smaller vessels have out-earned the Capesize sector which is particularly responsive to the iron ore trade. The same can be said for the wet trades with the net global fleet growth in deep sea tankers registering 3.5% between 1 January and 1 October 2012 reflecting the newbuilding delivery peak in 2012.
As ship owners suffer so do the service sectors reliant on the success of the owner. Ship managers and ship suppliers are desperate to keep the ship owner alive – he is the key to their survival.
Shipmanagement services are more in demand as ship owners cut back on their own back office costs and outsource the crewing and technical management of their ships. But management fees are under pressure and the demands being placed at the door of the manager are equally as intense. ‘Cut costs while still delivering a quality service’ is what is being demanded but whether the owner/manager relationship is still one of third party service provider rather than key supply chain partner remains to be seen.
And what of the recruitment market? Well crew costs may have stopped their meteoric rise of years gone by but in the eyes of the owner and the manager they are still very high.
According to a recent survey by the international accountant and shipping consultant Moore Stephens, vessel operating costs are expected to rise by 3% in both 2012 and 2013 with lube expenditure and crew costs seen as the categories most likely to produce the highest levels of increase.
Its survey was based on responses from key players in the international shipping industry, predominantly ship owners and managers in Europe and Asia. As was the case 12 months ago, those responses identified lubricants as the cost category likely to increase most significantly – by 2.9% and 2.8% in 2012 and 2013 respectively.
Crew wages, meanwhile, are expected to increase by 2.3% in 2012 and by 2.4% in 2013, with other crew costs thought likely to increase 2.1% for both years under review. The cost of spares, meanwhile, is expected to escalate by 2.2% in each of the two years covered by the survey. Expenditure on stores is expected to increase by 2.1% in both 2012 and 2013, while the cost of repairs and maintenance is expected to increase by 2.1% and 2.2% in the same years. The increase in P&I costs for 2012 and 2013 is estimated by respondents at 2.1% and 2.2% respectively, while for hull and machinery insurance the respective figures are 1.9% and 2%. Dry-docking costs over the same period are expected to rise by 1.9% and 2%. As was the case in the 2011 survey, management fees were deemed likely to produce the lowest level of increase in both 2012 and 2013, at 1.3% and 1.4% respectively.
Crew costs are rising. A number of respondents to the Moore Stephens survey cited crew costs as a major cause for concern. One said: “As long as there is stiff competition on crew costs amongst managers, with wages being increased at random, the situation will not settle down.” Another noted: “The volume of new vessel deliveries and short contracts will put pressure on crew supply, and crewing costs will go up.” Respondents were unconvinced that more expensive crews would actually mean better crews. “Crew competence and skill is declining,” said one, “with a trend towards short contracts and fast promotion. This is leading to more accidents and to extraordinary unbudgeted expenses.” Another remarked, “The shortage of qualified crews is steadily getting worse. A lot of the new crews are of a very low standard.” Elsewhere it was noted: “Crews from countries that offer lower wages will play a very important role in the cost of operating vessels. With low freight earnings, owners will try to save on crew wages.” Meanwhile, one respondent claimed: “The biggest single factor in operating cost increases these days is the scarcity of Filipino and Chinese seamen.”
In this context, seafarers’ rights must vie for the resources of the shipowners and the attention of the governments. In the months and years ahead, some of the debate on the allocation of resources is likely to take place in the context of the Maritime Labour Convention as it becomes embedded in national administrations and seeks to meet the challenge of creating an even playing field for shipowners. Through all the pressures however, many of the leading shipowners continue to recognise the importance of a competent and well treated crew. This view of the seafarer as an asset rather than a commodity is the vision of SRI towards which all its efforts will be directed.