Deirdre Fitzpatrick, Executive Director of SRI
In seafaring circles, 2013 was a milestone year with the entry into force of the ILO Maritime Labour Convention 2006 (MLC 2006), bringing legislation on to the statute books which promises enforceable minimum rights for seafarers in today’s modern shipping industry. There has been a lot of momentum around MLC 2006 and many stakeholders have been actively involved in selling the Convention’s positive message. Without doubt the achievement of MLC 2006 is a tribute to all those who worked to make it a reality.
However what is the end of one journey with the coming into force of the Convention, is just the start of a second journey to make it a reality in practice. The stage is now set for MLC 2006 to deliver its potential. Hopes are high and the industry is in the right place to make this important piece of legislation work for seafarers and their families, but a lot still needs to be done.
MLC 2006 will be a major part of the work of SRI in 2014, in the main seeking to ensure that seafarers’ rights under the Convention are delivered in practice. In some instances these rights shore up existing seafarers’ rights at the national level; in other instances they create a safety net on issues where there are gaps. On both counts, seafarers’ rights need to continue to be developed both at the international and the national levels until seafarers can have the same security and the same rights as land based workers.
Also seafarers must understand what MLC 2006 means to them and how it can improve their working lives. It is well known that seafarers face risks not just of the perils of the sea but also as a consequence of being migrant transnational workers largely unseen. When seen, it is often for the wrong reasons.
In late 2013, there was an unwelcome reminder of this when Galicia’s regional High Court delivered its judgement against the Master of the MV Prestige. The Master, Captain Apostolos Mangouras, was accused under the Spanish Criminal Code of offences against the environment. The court found him not guilty. But what caused consternation in the industry was that the Master was found guilty of disobedience and was given a nine month suspended prison sentence – a sentence that he is unlikely to serve because of his age. The saga for Captain Mangouras continues as it appears that the prosecuting authorities and the Master both intend to appeal.
The conviction of the Master followed the decision of the European Court of Human Rights in 2010 which decided that bail for the Master was properly set by the Spanish authorities at €3 million. This decision also was widely criticised. Both cases raise many interesting issues and are considered later in the Review. These issues and the wider subject of fair treatment of seafarers generally must remain firmly on the agenda of the industry at large until fair treatment of seafarers is no longer a lottery.
At the meeting of the IMO Assembly in November 2013, which is the UN body that currently has the subject on the agenda of its Legal Committee, only five countries that took the floor to make opening statements made reference to the fair treatment of seafarers. This was amongst thirteen out of fifty – eight countries only that made meaningful reference to seafarers in their opening statements.
Shipping, therefore, needs to continue to work to make the profession one that is attractive to future generations of seafarers. Examples of this are the visible support that seafarers can call on if in need. One such demonstration is access to lawyers who are knowledgeable on seafarers’ rights. SRI has developed a Charter in this regard which is described in more detail later in the Review. It is also the motivation behind the education and training work which SRI engages in, including, for example, the intern programmes that are referred to later in the Review.
The shipping industry is dynamic and fast moving. Therein lies both the opportunities and the risks. 2014 offers many challenges for the industry, and for its seafarers who are the frontline of the industry in action.
SRI ADVISORY BOARD COMMENTS AND REFLECTIONS
The importance that MLC 2006 delivers on its promises to seafarers; the threat of criminalisation; the consequences of crew abandonment; the need to establish enforceable seafarers’ rights at the international and national levels; as well as the need to inform seafarers about their rights; and to provide lawyers with access to legal materials that should assist them when defending the rights of seafarers in courts around the world, all remain at the top of the list of concerns of the members of the SRI Advisory Board.
The Board Members are drawn from a wide range of SRI stakeholder groups and the focus of the Board remains on the mission statement of SRI – research, education and training to advance the rights of seafarers.
“Ensuring seafarers actually know what rights they have and encouraging them to assert them without fear of retribution is one of the key issues which needs to be developed as far as seafarers’ rights are concerned” said Brian Orrell, OBE, SRI Advisory Board Chairman.
“Too often seafarers are kept uninformed of their rights intentionally in the mistaken belief that what they don’t know won’t hurt them and onboard ship working and living environments will be all the better for that.”
In many situations where seafarers do know their rights they work and live in onboard environments where they fear asserting them or are unaware of the procedures to do so. There remains a considerable amount of hard work to be done. MLC 2006 will hopefully address some of the deficiencies in knowledge and attitudes that result in this situation but on its own it will not be enough” he said.
The entry into force of MLC 2006 is widely acknowledged as a good step in the right direction. But while the seafarer may be coming into sharper international focus as a result, there is still some way to go, according to Dr Rosalie Balkin, retired Director of the Legal Affairs and External Relations Division of the IMO in London, a position she has held since 1998.
She told SRI: “I think it is not all there yet for the seafarer. In the IMO Legal Committee we worked hard to draw up guidelines on fair treatment of seafarers in the event of a maritime accident. A lot of work was done but there are still situations that demonstrate that the guidelines are not being adhered to.”
“SRI has to be aware or be apprised of the difficulties which may arise around the world when it comes to the rights of seafarers” asserted Rear-Admiral (Maritime Affairs) Jean-Marc Schindler former head of the French Marine Accident Investigation Office.” Tools should be developed to monitor the implementation of seafarers’ rights and instruments should be set up to help seafarers protect themselves against any infringement of their rights” he said.
“What we need over the next year is a full and efficient implementation of MLC 2006 as well as a reduction in the numbers and delays associated with abandonment cases” added Jean-Marc Schindler. “I would like to think that seafarers could be aware of all that SRI is producing to help them in their time of need and to find a way to get feedback on their usefulness.”
This was a point echoed by Professor Alastair Couper Professor Emeritus at Cardiff University. “Where I see the problems for the seafarers is getting access to the right legal advice. You take a multinational ship with divided people onboard and unknown owners and you get a picture that the crew may have a problem with individuals onboard; maybe there are problems of abuse with seafarers not receiving their wages etc. So where do they turn to? How do they deal with exploitation and excessive hours of work? Some people I am dealing with don’t even know they are being exploited and what their rights are” he said.
And how are seafarers served by the law and by lawyers? According to Professor Hilton Staniland (former chairman of the Board of Directors of the South African Maritime Safety Authority) of the University of Southampton, chair of SRI’s editorial group, barrister of the High Court of South Africa, and visiting Professor at the University of Greenwich, the challenges facing SRI issues are fourfold: first, at the international level there must be fair and decent treatment of seafarers enshrined in conventions and other international legal instruments; second, at the national level the conventions and other instruments must be fully enforceable by seafarers in domestic courts; third, at the local level seafarers must be fully informed of and kept updated about their rights. “Some lawyers know about seafarers’ rights, others don’t, and mostly lawyers don’t; and if a seafarer has a lawyer representing him who is not experienced in these matters, then he may end up in jail through inadequate representation. So the fourth challenge”, he added “is to provide lawyers with access to legal materials, guides, courses and a network of professional contacts that should assist them when defending the rights of seafarers in courts around the world.”
Ensuring the seafarer is aware of his rights under MLC 2006 is an important factor, according to Advisory Board member Father Bruno Ciceri, a representative of the Apostleship of the Sea International. “Now that MLC 2006 has entered into force we need to inform seafarers how the Convention can be used to improve their working and living conditions onboard ship and how they can have their rights protected. If in two years’ time we are able to have every seafarer aware of this it will be a great achievement,” he said. Father Bruno also pointed to concerns about the way the agency manning system is run in some countries especially in the aftermath of new legislation. “In many countries I feel that the agency manning system is still very problematic and it will be interesting to make a study after the entry into force of MLC 2006 to see if things have changed or improved.”
Seafarers must be able to access a mechanism to defend themselves against employers reluctant to support them over wages or personal injury cases, according to Attorney at Law and Advisory Board member Richard J Dodson. “One predominant issue is the practice of some ship owners to blacklist seafarers who attempt to enforce their rights to be paid the wages set forth in collective agreements or who seek compensation for injuries even for the amount set forth as scheduled benefits in a collective agreement. While ship owners of all nationalities have engaged in this practice it is especially prevalent in Asia with the exploitation of seamen from Myanmar.”
The availability of local lawyers with an understanding of seafarers’ rights is a key issue moving forward contended Kuba Szymanski, Secretary General of InterManager. SRI also has to see its role develop as a watchdog for the IMO and for the ILO as the fight continues to put a stop to the issue of criminalisation. “Piracy and criminalisation will remain the biggest issues facing seafarers over the next year or so and while MLC 2006 may have entered into force, greater work needs to be done to clarify the definition of the seafarer and the owner and to speed up its ratification by other countries.”
These were thoughts shared by fellow Advisory Board member Leslie Tarantola, General Counsel of the Seafarers’ International Union of North America who said that criminalisation and a safer work environment were the biggest issues facing seafarers around the world now and over the next 12 months.
“When you work in other trades and something happens (that may be through no fault of your own) you generally do not have to worry about ending up in jail and facing a foreign legal system without counsel or the rights you had come to expect in your own country. While MLC 2006 is a major achievement, I believe there is still a long way to go to raise the standard of living for those working on FOC ships, to make ships a safer work environment, and to deal with the companies who will continue to operate in violation of law or convention. Having MLC 2006 alone is not enough: it is a very good start but strict enforcement must follow and the standards created must be built upon and improved over time.”
SEAFARERS’ RIGHTS IN THE CURRENT MARKET
A cursory glance at the global seafarers demand and supply situation, or at least industry sentiment coming through, suggests that previously held fears over manpower shortages may now be a thing of the past. The 2015 BIMCO/ISF Manpower Study, published every five years, will make interesting reading, but at present, generally speaking ship owners can fill spaces onboard their ships. The problem lies with the quality of the people they are employing, and the cost and employment consequences that may involve. Competency is today’s industry catchword: get the right man, train him and retain him at all costs.
Simple enough! But when you factor in the shifting sands of vessel ownership and operation in today’s fiercely competitive market, then there is far more on the ship owner’s plate for him to deal with.
A recent survey by international accountant and shipping consultant Moore Stephens, put a lot of this into context when it predicted (actual costs are not yet available) that vessel operating costs would rise by more than 3% in both 2013 and 2014. Crew wages were expected to increase by 2.4% in 2013 and by 2.5% in 2014, with other crew costs thought likely to go up by 2.1% and 2.2% respectively for the years under review. The cost of P&I insurance is also expected to escalate by 2.4% in 2013 and by 2.5% in 2014, compared to the increases of 2% and 2.3% respectively predicted in respect of the cost of hull and machinery insurance.
The report went into more detail: “Crew costs, as always, emerged as a major concern for respondents, which is no surprise given the potential budgetary implications of the entry into force of MLC 2006 and the increasing involvement of both international and regional bodies in the oversight of crew competence and its effect on safety. Continuing the theme of previous surveys, fuel costs again featured prominently as a cause for concern, as did the cost of having to comply with increased regulation generally in the shipping industry. The latter, unfortunately, cannot be addressed by the expedient of applying new rules and regulations only to new ships, as suggested by one respondent. The regulators want a clean and safe shipping industry, and it is the industry itself, which includes a significant number of older vessels, that will have to underwrite the budget needed to achieve compliance.”
The shipping industry is continuing to feel the ravages of this ever tightening global financial crisis and it is unlikely to let up until there is a better balance between tonnage supply and tonnage demand.
With all this happening, the last thing the ship owner might want to worry about is the rights of his crew. As Deirdre Fitzpatrick, SRI Executive Director, said: “Any effort which seeks to promote the rights of a seafarer will almost certainly alienate certain ship owners. But when you put it into context, it is all about trying to say why delivering seafarers’ rights is a win-win situation for all. Yes, you can treat your crew badly but if you are running a ship on a tight budget in a stressed market, then the last thing you want is to lose skilled crew, and if you want to keep your crew then you have to observe their basic rights.”
“Many ship owners already consider that it is their responsibility to look after their crew beyond the letter of the law, but developing seafarers’ rights is also about empowering the seafarers to have some control over their own situation, and this starts with education. Informing seafarers about their rights and seeking an environment where seafarers can assert and enforce their rights without fear of victimization is the basic necessity for any sort of equality.”
This point was echoed by Brian Orrell, OBE, SRI Advisory Board Chairman. “What is needed is a programme of education and training that will not only inform seafarers of their rights and how to assert them, but also start to change attitudes among employers, persuading them that such seafarer awareness would actually result in better onboard working and living working conditions and quality operations.”
“There have always been good employers who know all this but unfortunately there are too many who don’t, or do, but want to undercut the good by, among other things, suppressing seafarers’ rights”, he continued. “Finding ways to secure the involvement of the industry’s good employers in programmes of education and training would be of considerable value. This represents a significant challenge but the initial initiative has to be taken, and SRI is well placed in this regard.”
SEAFARERS AND THE CRIMINAL LAW
Prestige – decision of the national court
It was something of a coincidence that 11 years to the day on 13 November 2013, in a 263 page judgment, Galicia’s regional High Court finally acquitted the Master of the Prestige Captain Apostolos Mangouras and the vessel’s Chief Engineer Nikolaos Argyropoulos of causing criminal damage to the environment, after the ship split in two and capsized in heavy weather off the Spanish coast spilling 63,000 tons of its oil cargo.
But Captain Mangouras was also charged and he was convicted of the offence of disobedience under Article 556 of the Penal Code, for delaying the towing of the vessel as ordered by the National Maritime Authority. After pursuing the evidence, the Court found that the three key elements of the offence of disobedience were fulfilled and concluded that:
“… the accused Captain could not delay for even a minute complying with what was ordered because he lacked any margin to question the order unless it was a question of an order that lacked any rationality and which was obviously prejudicial, which was not the case ….”
The Court found that the Master had refused the tow initially in order that he could contact the shipowner. Commenting on this behaviour, the Court said:
“what happened is that, more concerned by the financial consequences of a tow that was required urgently and reasonably to solve a situation of maximum emergency, the Captain decided perhaps with some consent of the shipowner not to obey the legitimate orders that were imperatively given to him which is evidence of clear disobedience and he intentionally scorned the principle of authority, again legitimate, of the national maritime authority.”
“… the accused Captain did not comply with that order or rather in an elusive way he decided not to comply with it and disobeyed it on the pretext that he had to speak with his shipowner and he delayed in making that consultation for around three hours.”
“The excuse is unacceptable because nor did the shipowner at the time when the event occurred have any margin to avoid compliance with the order.”
The Court found the disobedience to be “… serious not only given the emergency context in which it occurred which did not allow for any doubt, hesitation, reticence and/or evasion but rather required a prompt reaction of compliance and obedience even in the case that there should be disagreement with its full suit-ability which did not occur but also given its immediate compliance was avoided for an inadmissible reason which was preserving, improving or negotiating the financial interests in conflict, the scope for which is provided by the provisions of the salvage team and the usual clauses for this class of activities of towing and salvage.”
The Court also referred to the “… clearly disrespectful attitude of the accused Captain … which practically evaded the content and urgency of the orders and he decided not to comply with them as if they were doubtful or handed down by incompetent persons or by authorities of a country which it does not seem merited enough respect from him.”
“This is the objective gravity of the disobedience that is the clear intention to scorn the authority and the gravity of the emergency context which made any disobedience unfeasible and especially criticisable when it is a question of excusing that unacceptable even criminal conduct with criteria which only make reference to a desire for profit that is hard to comprehend in the context of that class of catastrophe.”
The judgment raises many issues some of which do not appear entirely consistent. What might be said however is that given the clear findings of the Court that “no one knows exactly what was the cause of what happened or what should have been the appropriate response to the emergency situation created by the catastrophic failure of the Prestige”, the Court might have been more sympathetic to the Master who on the Court’s findings had delayed agreeing the tow because he wanted to discuss the situation with the shipowner.
But even more problematic is the impossible conflict that a Master in such a situation finds himself in. Masters can find themselves overwhelmed by competing obligations to their shipowner, and to the coastal and flag states, and they have to make profound decisions under stress for which they can then be subject to criminal proceedings over many years. The Master is on the horns of a dilemma: he is subordinate to the shipowner and the coastal and flag states, yet ultimately he is personally responsible.
European Court of Human Rights and bail
The decision of the regional High Court followed in the wake of the decision of the European Court of Human Rights (ECtHR) to which the question of bail had been referred. Following the casualty, on arrival on shore, Captain Mangouras was immediately arrested and escorted to the police station in handcuffs. He was then taken to a high security prison and bail was set at €3 million. This was the highest bail security ever set in the history of Spanish criminal proceedings. Unable to afford this, he remained in jail for 83 days and was released only when the ship’s insurers volunteered to cover the bail. Even then, Captain Mangouras was required to remain in Spain and only allowed to return to his home in Greece after 2 years.
Captain Mangouras challenged the level of bail imposed through the Spanish Courts to the highest Court possible (the Constitutional Court), and before the ECtHR on the basis that the sum set was excessive and had been fixed without his personal circumstances having been taken into consideration. He relied on Article 5 § 3 of the Convention which, in its relevant part, provides:
“Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article … shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
In 2010, the Grand Chamber ruled by a majority of 10 votes to 7 that there had been no violation of Article 5 § 3 even though the bail of €3 million was recognised by the Court as being far beyond the financial means of Captain Mangouras.
The majority decision emphasised two aspects of the case: first, the gravity of the alleged offence and the growing concerns in Europe and elsewhere in relation to environmental damage which was referred to as the ’new realities’ to be taken into account in interpreting Article 5 § 3 of the Convention. Secondly, the majority took the view that the Spanish courts in setting the bail had taken into account the ‘professional environment’ which was interpreted as covering the relationship between Captain Mangouras and the shipowners. The Court noted that the bail had been paid ‘as a one-off, spontaneous humanitarian gesture’ by the London P&I club.
The majority decision raises, with respect, many concerns. The Grand Chamber has decided that it would be compatible with the Convention for a national court to assume that the employer or its insurers, in the absence of any legal obligation to do so, would feel morally obliged to come to the employee’s rescue. This means that if bail is set beyond the affordability of the seafarer and there is no clear obligation on the shipowner or insurer to stand surety, then a game of bluff could be legally sanctioned.
The ECtHR has a responsibility to maintain high standards in the area of the protection of human rights and fundamental liberties. In marine pollution cases, it has rendered seafarers reliant on the moral goodwill of shipowners and their insurers who may have no legal obligation to meet bail demands. To set bail far beyond the reach of an accused person is to render illusory his ability to secure his release from custody.
In future, the ECtHR may be persuaded to dilute the effects of its majority judgement. A new balance needs to be reached for the setting of bail for Masters and crew given the obvious disadvantages they face as visitors only in ports around the world. Until this is taken into account, then the international community is not delivering equivalent human rights for seafarers.
In the meantime, what is the shipping industry doing to continue to promote the issues of fair treatment of seafarers and to condemn instances of criminalisation?
During February 2011 to February 2012, SRI conducted a survey of seafarers covering their experiences of facing criminal charges, and their perceptions of the risks and consequences of facing such charges. The survey was conducted in eight languages (Chinese, English, Japanese, Portuguese, Russian, Spanish, Tagalog and Turkish). And 3,480 valid questionnaires were returned from 18 countries. These countries were Belgium, Brazil, Canada, China, France, Germany, India, Indonesia, Japan, Malaysia, Norway, Philippines, Russia, Spain, Turkey, Ukraine, the United Kingdom and the United States of America.
The findings in the survey strongly suggested that the rights of seafarers, as enshrined in the Guidelines on Fair Treatment of Seafarers in the event of a Maritime Accident, adopted by the IMO and the International Labour Organization (ILO) are often subject to violation.
Seafarers complained of unfair treatment, intimidation and a lack of legal representation and interpretation services. Almost half of the seafarers in the survey said they would be reluctant to co-operate fully and openly with casualty inquiries and accident investigators. Of the seafarers who answered the question in the survey, 85.04% were concerned about criminal charges being brought.
Submissions to the IMO Legal Committee
Seafarers were also asked for their suggestions on how to improve their situation when facing criminal charges.
These suggestions were presented at the landmark 100th session of the Legal Committee of the IMO which met in London on 15 – 19 April 2013.
- more information on the risks they are exposed to in relation to criminal charges
- more information on their rights if they are defendants, complainants or witnesses
- legal and financial support when facing criminal charges
- a fair process and fair treatment when facing criminal charges
- a greater network of support from governments, the maritime industry, international organisations and lawyers if they do face criminal charges
- more uniform laws and procedures given the wide range of different crimes to which they are exposed.
Seafarers said for example:
“We need to be told clearly what our rights are. It is impossible to know everything – even lawyers do not know about the areas and they are specialised;”
“Try to create uniform rules for ships and seafarers or easy to understand rule: ie, info books, leaflets for countries or computer based system to help seafarers understand their rule;”
“The pre-departure orientation seminar should be revisited and improved. Seafarers should be informed and made aware of their rights;”
“Seafarers are not aware about countries laws. They should learn more before they come to the port;”
“Many different rules – each different in each country;”
“When a case is filed against a seaman, he should be allowed to leave the ship to look for legal assistance. However, once he leaves the ship, he won’t have money to spend for his case;”
“What is needed is the help of an upright and helpful lawyer to give the seafarer a fair fight in the case filed against him;”
“They should be provided with lawyers who will take their case pro bono because you no longer have a job and on top of that you are fighting a case and surely you won’t be able to work again because you will have been blacklisted;”
“There should be somebody from government that should help them because sometimes there’s no money anymore;”
“There should be an organisation that provides free legal service to seafarers who are facing criminal charges;”
“Seafarers should have an international legal counsel for assistance in case of criminal charges;”
“Legal aid should be provided to seafarers;”
“Increased involvement of international bodies to provide justice to seafarers;”
“Greater support from unions/company/ government;”
“A single international legal body with specialist knowledge of the sea able to investigate and judge the national legal incidents;”
“The court and judge must include a panel of seafarers and the seafarer must only be punished for an act of intent of total negligence;”
“There must be someone who support and represent the seafafer. As for now the seafafer is a world traveller who is treated by authorities as a second hand citizen which no civilian/businessman/tourist would have experienced without a scandal;”
“The IMO has to intervene, as not all governments (states) take full responsibiity for their seafarers.”
In late 2013, SRI circulated a survey to IMO Member States inquiring about implementation of the Fair Treatment Guidelines and the legal rights contained therein. The results of this survey will be reported to the IMO Legal Committee in April 2014.
“It is clear that due to the unique nature of their work, seafarers are more exposed to criminal proceedings than many other workers and so, there should be special protection in place for them. The current system does not provide such protection” said Deirdre Fitzpatrick, Executive Director, SRI.
“The message from seafarers is loud and clear,” added Ms Fitzpatrick, “Seafarers are saying that their rights are theoretical and illusory; they need them to be practical and effective.”
ABANDONMENT OF SEAFARERS
The highly publicised case of the crew of the 43,866dwt TMT-linked woodchip carrier Donald Duckling, reduced to surviving by catching fish off the side of the vessel as she lay detained in the Port of Tyne, indicated very strongly that the spectre of the abandoned vessel remained a constant during 2013, and is a reality of today’s shipping market which refuses to go away.
Poor underlying market freight rates coupled with rising operating costs and vessels acquired at the top end of the market are all factors which heighten the risk of a deterioration in the situation over the coming year. Credible statistics remain illusory. The ILO database records a level of incidents which is widely considered to underrepresent the true extent of the problem, perhaps not least because the database relies on voluntary reporting by stakeholders, and for some it is not in their interest to do so.
The problem of abandonment is wider than repatriation
It is often not appreciated that the problems of abandonment are far wider than the single problem of repatriation. The plight of an abandoned seafarer will almost invariably throw up a wide range of problems, and the particular set of problems may be unique in each case of abandonment.
Abandoned in a foreign port, a seafarer may be beset by problems including, for example, inadequate food and water, clothing, accommodation, heating, safety and security, medical and dental care, unpaid wages, and repatriation costs. The seafarer may or may not receive advice and assistance from government departments, consulates, unions, and welfare organisations. He will probably have to arrest his ship to legally enforce his rights against the shipowner. This will invariably require the services of a local lawyer, which an unpaid seafarer will probably not be able to afford. And the seafarer may or may not have to stay in the port or on board the ship while his rights are enforced against the arrested ship. But the ship may prove to be of little or no value.
Also the seafarer might suffer detention and deportation. This could prevent him from returning to that country for a certain period, or at all, or affect his ability to visit other countries, through no fault of his own. In some countries, it is a criminal offence for the ship to leave behind one of its seafarers (particularly where abandonment has caused great hardship), or for a shipowner to abandon a seafarer either aboard the ship or ashore in circumstances that are dangerous to the seafarer. So the challenge for the maritime industry and the international and national lawmakers is to ensure that these legal problems, which can become complex and complicated, may nonetheless be resolved by clear, simple and, as far as possible, uniform laws at no cost to seafarers, the innocent victims of abandonment.
Financial security for abandonment
Some of these problems have been discussed for many years in long drawn out sessions of a Joint IMO/ILO working group established in 1999. Finally a potential solution harkens. The Special Tripartite Committee of the Maritime Labour Convention 2006 (MLC 2006), made up of seafarers, shipowners and government groups, will meet in Geneva in April 2014 to discuss inter alia an amendment to MLC 2006 to deal with abandonment. The proposed amendment will be based on the proposal which came out of the 9th session of the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers.
The passing into force of MLC 2006 was significant in this context because of its provision requiring financial security in the case of repatriation.
Financial security will be essential to delivering a practical and working solution for abandoned seafarers. The amendment is intended to give substance to the requirement of financial security contained in the original Regulation 2.5 of MLC 2006, outlining the specifications of its content and of its operative procedure. Accordingly, the original requirement of a financial security ‘.. to ensure that seafarers are duly repatriated…’ becomes a ‘..financial security system to assist seafarers in the event of abandonment…’
When the modification enters into force, each Member State will have to decide, in the usual tripartite manner, if the financial security for repatriation existing at the time can become the financial security system required for the future, and if the present plurality of solutions can be maintained. This will require States to become sophisticated experts of insurance in order to evaluate the compliance of the shipowner’s proposed financial security system and to keep track of the continuous validity of it. Therefore as with other aspects of MLC 2006, there will be some difficult work to do in order to implement in practice the new requirements. And for seafarers, it is essential that the new financial security system is devised as an instrument of practical help and is readily available for the seafarer abandoned in a situation of severe distress.
PERSONAL INJURIES AND DEATHS OF SEAFARERS
Seeking compensation – challenges
If injured or killed, then seafarers or their dependents may have to embark on often lengthy and complex litigation to seek compensation. There are unique aspects of the working lives of seafarers that place them at a great disadvantage in their ability to obtain proper compensation. An example of this is the perpetuity of movement from one jurisdiction to another. 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. In this complex setting, P&I insurers 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.
Another challenge is that national schemes for compensating injuries and death 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.
In this context the question of insurance is critical. The vast majority of the world’s merchant shipping is covered by P&I insurance. However historically, there was no obligation on a shipowner to insure himself against the risk of personal injury or death of a seafarer. Whilst injury and death are classified as insurable risks and all related expenses – including repatriation resulting from these events – are thus insurable, it was not uncommon to find P&I policies that specifically excluded cover for those risks. Such exclusion may be requested by the shipowner or may be based on a poor claims record by a member in previous years of coverage which would affect the underwriting information used in the setting of a member’s P&I calls. This exclusion will be unknown to the seafarer.
The guarantees provided under P&I cover were thus limited in three respects: the scope of the coverage itself; the privity between the insurer and the insured party (the insured is the shipowner, not the seafarer); and the ‘pay to be paid’ mutualist principle according to which the P&I Club reimburses claims which the shipowner has already settled. This last point clearly poses a problem as concerns the insolvent ship owner, who is unable to pay the claims in the first place, and for the seafarer – who has no recourse to the insurer other than through the shipowner.
If a shipowner 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.
Here MLC 2006 has stepped in and there now exists an obligation on Member States to ensure that ship owners shall provide ‘financial security to assure compensation in the event of the death or long term disability of seafarers due to an occupational injury, illness or hazard, as set out in national law, the seafarers’ employment agreement or collective agreement.’ This is in the context of the overall purpose of the Regulation 4.2 ‘[t]o ensure that seafarers are protected from the financial consequences of sickness, injury or death occurring in connection with their employment.’
The subject of liability and compensation regarding claims for death and personal injury of seafarers is also on the agenda of the first meeting of the Special Tripartite Committee in April 2014. In particular, the meeting will discuss arrangements for financial security as proposed by the 9th session of the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers. Those proposals include issues such as:
- that contractual compensation shall be paid in full and without delay;
- that there shall be no pressure to accept a payment less than the contractual amount;
- that where the nature of the long-term disability of a seafarer makes it difficult to assess the full compensation to which the seafarer may be entitled, an interim payment or payments shall be made to the seafarer so as to avoid undue hardship;
- that the seafarer shall receive payment without prejudice to other legal rights, but such payment may be offset by the ship owner against any damages resulting from any other claim made by the seafarer against the ship owner and arising from the same incident;
- that the claim for contractual compensation may be brought directly by the seafarer concerned, or their next of kin, or a representative of the seafarer or designated beneficiary;
- that seafarers shall receive prior notification if a ship owner’s financial security is to be cancelled and be notified immediately if it is not to be renewed;
- that documentary evidence of financial security, in English or accompanied by an English translation, should be posted in a prominent position in the seafarers’ accommodation.
These proposals, if agreed, should shore up the precarious position the seafarer and his dependents are currently in. However they deal with contractual compensation only, and if the seafarer is in an unequal bargaining position with the ship owner in the first instance, and perhaps does not have the benefit of a collective agreement negotiated by a trade union, then the contract may not contain adequate provisions to support him or his family in the event of an accident. Thus many of the challenges for seafarers around this area remain and work needs to continue until all seafarers can have some reassurances if they lose their livelihood in a work related injury, or their lives in a work related death.
IMPACT OF THE MLC ON SEAFARERS
By Cleopatra Doumbia-Henry, Director, International Labour Standards Department, ILO
The year 2013 witnessed a milestone in international efforts to protect seafarers’ rights and improve the working and living conditions for the world’s seafarers. On August 20 2013 the International Labour Organization’s (ILO) Maritime Labour Convention 2006 (MLC 2006), often called the ‘seafarers’ bill of rights’, became binding international law for 30 countries located in nearly every region of the world.
These 30 countries have international legal responsibility for regulating labour and social conditions for seafarers working on board nearly 60% of the world’s fleet (based on gross tonnage (GT)). This also includes countries where the majority of the world’s seafarers are recruited. By year end 2013 a total of 53 countries had signed on to MLC 2006 and by December 2014, the MLC 2006 will be binding law for countries regulating more than 80% of the world’s shipping fleet.
This means that seafarers, including those with jobs in hotel and other passenger services on cruise ships and commercial yachts, will be able to point to these international minimum standards as the baseline for their rights. More than 100 pages long, the MLC 2006 sets minimum requirements for nearly every aspect of working and living conditions for seafarers including recruitment and placement practices, conditions of employment, hours of work and rest, repatriation, annual leave, payment of wages, accommodation, recreational facilities, food and catering, health protection, occupational safety and health, medical care, onshore welfare services and social protection.
Despite the high ratification level a fair question is whether this international legal document will have an impact on seafarers’ lives. Will it make a difference for seafarers and will it help to better ensure that every seafarer’s rights are in fact respected in practice? The answer to these questions will not be known until the Convention has had a chance to be put into practice at the ship-board level for a period of time.
The vision of the shipowners’ and seafarers’ representatives in 2001 when they first proposed the MLC 2006 was to find concrete solutions to some of the worst problems for seafarers’ working conditions. They had a number of solutions many of which were aimed at making sure that this new instrument, unlike those in the past, was not just a ‘law on the books’ but that it had ‘teeth’. The solutions they proposed were intended to make sure that standards would be properly implemented not only in national laws but also on board ship and that there would be consequences for failures at the national or ship board level. They also wanted to make sure that the Convention would be widely ratified to avoid unfair competition from operators of substandard ships.
MLC 2006 is specifically designed to establish a continuous ‘compliance awareness’ at every stage, from the national systems of protection up to the international system. This starts with the individual seafarers who need to be properly informed of their rights and of the remedies available in case of alleged non-compliance with the requirements of the Convention and whose right to make complaints, both onboard ship and ashore, is recognised in the Convention. It continues with the shipowners. Those that own or operate ships of 500 GT and above engaged in international voyages or voyages between foreign ports are required to develop and carry out plans for ensuring that the applicable national laws, regulations or other measures to implement MLC 2006 are actually being complied with. The masters of these ships are responsible for carrying out the shipowners’ plans and for keeping proper records to evidence implementation of the requirements of the Convention. As part of its updated responsibilities for the labour inspections for ships of 500 GT or above that are engaged in international voyages or voyages between foreign ports (ports located in a country other than the flag state of the ship), the flag state (or a recognised organisation on its behalf) must review the shipowners’ plans and verify and certify that they are actually in place and being implemented.
Ships flagged in ratifying countries are required to carry a maritime labour certificate and a declaration of maritime labour compliance on board. Flag states are also expected to ensure that national laws and regulations implementing the Convention’s standards are respected on smaller ships, including those that do not go on international voyages which are not covered by the certification system. Flag states are required to carry out periodic quality assessments of the effectiveness of their national systems of compliance, and their national reports to the ILO as part of its supervisory system must provide information on their inspection and certification systems, including on their methods of quality assessment. This general inspection system in the flag state is complemented by procedures to be followed in countries that are also, or even primarily, the source of the world’s supply of seafarers, when they will file their national reports on implementation of MLC 2006. These flag state inspections are then backed by the increasingly important role played by inspections in foreign ports under the system of Port State Control. During Port State Control, ships could be subject to a more detailed inspection and in cases where a ship does not conform to the requirement of MLC 2006 and the conditions on board are clearly hazardous to the safety, health or security of seafarers, or the non-conformity constitutes a serious or repeated breach of the requirement of the Convention (including seafarers’ rights), the ship may be detained until the problem is addressed.
Already since August 2013 several ships in ports in several countries have been detained by Port State Control authorities for problems relating to MLC 2006 compliance. There has also been a significant level of industry activity and training with respect to MLC 2006 since its adoption in 2006. Aside from the immediate consequences resulting from entry into force, MLC 2006 has already begun to have a significant impact on the on board culture and practices by setting the floor for standards.
But MLC 2006 is also a ‘living tree’. It did not stop developing in 2006 but was specifically designed to allow for rapid amendments to address new and emerging needs in the maritime sector. One of the very important innovations of MLC 2006 is to allow for rapid amendments to deal with changes and emerging needs of the industry. In April 2014, a meeting of the Special Tripartite Committee called for under Article XIII of the Convention will be held. That Committee is charged with keeping ‘the working of this Convention under continuous review’ as well proposing and adopting amendments to the Code of the Convention under a more expedited amendment process based on tacit acceptance. In fact the first meeting of this Committee will review proposed amendments related to financial protection for the serious problem of abandonment of seafarers and also details for measures regarding ship owners’ liability for death and the long-term disability of seafarers.
These are all welcome indications of improved concern for the protection of seafarers’ rights and are a cause for celebration. However these developments will still need to be monitored and measured in light of practice to ensure that they do their job and the conditions are improved.
Submissions to the IMO
The results of the SRI survey of seafarers on fair treatment in criminal prosecutions was submitted to the landmark 100th session of the Legal Committee of the International Maritime Organization (IMO) which met in London on 15 – 19 April 2013. The SRI Survey – Seafarers and the Criminal Law, which contains both the survey and the submission to the IMO is available on the SRI website .
The next submission to the IMO will be made at 101st session of the Legal Committee meeting in London on 28 April – 2 May 2014.
For seafarers, if they need to consult a lawyer, then often one of the first hurdles is to find a reputable lawyer who is knowledgeable about seafarers’ rights issues, and who is willing and able to represent the seafarer at a reasonable cost.
To support seafarers in this regard, SRI has embarked on a project to create a network of lawyers worldwide who have subscribed to a Charter of Good Practice for the Provision of Legal Services to Seafarers – a set of professional ethics to bind lawyers working in any jurisdiction around the world, taking into account the particular concerns of seafarers. The Charter is unique to SRI, and seeks to provide reassurance that the seafarer client will be treated in a certain way. Subscribers to the Charter are lawyers professionally licensed to practice in their respective jurisdictions.
The response to the Charter so far has been excellent and over 100 lawyers from 50 different law firms across 34 countries worldwide have committed to it. The list of subscribing lawyers is contained on the Find a Lawyer area of the SRI website.
The list is an evolving one and is being expanded to include other lawyers working in other fields that will impact on seafarers: for example in the field of criminal law, if a seafarer faces criminal charges in the course of his work. Approaches from lawyers to be included in the list, and suggestions for other lawyers to be included, are welcomed.
Seafarer Subject Guides and Fact Files
In order to disseminate information on seafarers’ rights, SRI has issued a series of guides on seafarer related subjects. Over thirty national guides have been uploaded to the website of SRI on each of the subjects of Using Lawyers; Maritime Liens for Seafarers’ Wages; Arrest of Ships for Seafarers’ Wages; and Abandonment of Seafarers. These Guides have been edited to around 2,500 words each, and they have been written to be of use to seafarers. No similar material exists elsewhere. More guides are underway. Also a full text version of the Subject Guides, including footnotes, will become available for subscription in due course.
Also, in order to ensure that information is widely accessible to seafarers, SRI has produced Fact Files on the same subjects. This is an A6 booklet of 1,500 words. The Fact Files are of a generic nature that can be referred to if there is no available national guide. They also contain a pull-out credit card with key points of advice on the subject. The Fact Files are available on the website of SRI in Burmese, Chinese, French, Indonesian, Japanese, Polish, Russian, Spanish, Tagalog and Turkish.
Education and training
One of the commitments of SRI is to education and training, including of young professionals. In pursuit of this, SRI has conducted a series of internships and is frequently approached by students for internships. During 2013, SRI facilitated intensive work experience in the area for several students and during 2014, more activities are planned to promote knowledge in the area of seafarers’ rights amongst professionals and others who work to assist seafarers to know and to enforce their rights. Consideration is also being given to education of seafarers around the world, as well as for lawyers and others who assist seafarers.
Website and SRI Legal Database
The new website of SRI was launched in July 2013. This contains a unique legal database of materials on seafarers’ rights, gathering in one place a comprehensive collection of national and international laws, treaties, cases and other legal materials. It is an innovative resource for those wishing to develop their knowledge in the field of seafarers and the law. From the research already conducted, there are available over 500 pieces of legislation and cases from around the world directly relating to seafarers. The database materials include topics relevant to seafarers’ rights ranging from legal aid legislation and lawyers’ codes of conduct, to international agreements on maritime labour and migrant worker treaties.
The majority of the documents on the database link out to other websites and online databases: hence users can access up-to-date versions of documents and gain a greater breadth of information. Links include government websites, national databases, databases of international organisations, maritime databases, human rights databases, and academic online databases. The database has a detailed and user-friendly search facility allowing the user to search by topic keywords and/or title and/or date and/or country. The database will serve as a useful tool for seafarers and their representatives, lawyers supporting seafarers, shipping interests, academics, students and the media. The database is also a platform to disseminate original materials produced by SRI, which will either be contained in the public site or a membership area of the database.
Following the launch of the new website, and the SRI Legal Database, the SRI website is generating a consistent stream of traffic – an average of 3,000 to 4,000 page views per month since July 2013. There was a spike in hits when the SRI Legal Charter was announced with traffic that month climbing to over 7,000 page views. For the past four months the Maritime Labour Convention page has been in the top three pages viewed on the site. Otherwise, the favourites are the Legal Database landing page and the documents list (indicating a Search for a legal document) and the Using Lawyers/Find a Lawyer pages. The countries from which the SRI website is most commonly viewed are the UK, the USA and the Philippines.
Visit SRI’s website at: www.seafarersrights.org
Promoting the work of SRI
SRI produces a regular e-newsletter Forward which includes updates about SRI’s activities, as well as interviews with key figures in the world of seafarers’ rights. It is currently emailed out to a wide variety of groups, including seafarers, shipowners, seafarer union officials, seafarer welfare organisations, governments, ship managers manning agents, universities, maritime colleges, students and the media. Those readers who wish to receive Forward can do so by emailing SRI at the email address below. Copies of current and past issues of this newsletter together with copies of SRI Annual Reviews can be found in theNewsletters and Publications area of the SRI website.
SRI also engages in a rolling programme of press releases, media interviews and speaker engagements. Key highlights of press coverage about SRI and seafarers’ rights issues can be found on SRI’s website atwww.seafarersrights.org/news
Those readers who wish to have paper copies of SRI publications, singly or in bulk, can do so by emailing:email@example.com
Late in 2013, Columbia Pictures released a movie called Captain Phillips, which quickly became a hit with audiences flocking to see it all over the world. The film, which was about Somali pirates hijacking a US-flagged and US-crewed container ship, brought to global public attention the risks faced by seafarers every day.
This was a very rare occurrence because the problems faced by the only global labour force on the planet – the approximately 1.2 million seafarers who daily bring the goods to local supermarkets and department stores around the world – seldom get serious attention. Piracy is one of the on-going challenges for the industry. “And there are many other challenges” says Deirdre Fitzpatrick, Executive Director of SRI. “All stakeholders of the industry have their own priorities, but the might of the industry depends on the labour of seafarers, and shipping needs to focus on the human element to ensure long-term sustainability. Great as the industry is, there is always work to be done to improve the quality of the industry.”
“And a lot of this depends on the image of industry. Headlines around piracy, criminalisation or abandonment or other abuses of seafarers are wildly damaging and overshadow the responsible players who make the industry such a successful one.”
“Central therefore is re-instating pride and respect for seafarers. And working on the visibility of the industry not just with politicians, but with the public also. Without a strong visibility, it is impossible to pursue a dynamic agenda for the future of the industry. And for this there needs to be a united and cohesive approach – a challenge in an industry that is inherently competitive. ”
“But competition can be positive if it rids the industry of sub-standard operators. What it must not be allowed to do is encourage the race to the bottom.”
So what about the future? David Cockroft, Advisory Board member and former General Secretary of the ITF has been instrumental in SRI from the start. “The challenge ahead, as for many organisations, is to attract not just faces to the cause, but funds also” says David Cockroft. “There is little doubt that the work of SRI is a needed contribution to the cause of the seafarers. And whilst the seafaring sector fully endorses this work, financial contributions from other stakeholders and funders will also be welcome in the years to come so that the work of SRI can continue.”
“Captain Phillips was rescued by action ordered by the US President. Luckily he was a US citizen on board a US flagged ship. There aren’t many seafarers left who can expect the marines to show up if they are in trouble. Seafarers from all over the world put their freedom and sometimes their lives at risk just by signing on aboard a ship. Seafaring is becoming a less and less attractive profession for young people in every region. A sustainable global system needs seafarers who know their rights and have the capacity to defend them. That is why SRI ‘s future is so important.”