The so-called Seafarers’ Bill of Rights marks a milestone in the drive to promote quality shipping and decent working conditions. In a single comprehensive instrument, the Maritime Labour Convention (MLC) addresses whole spectrums of seafarers’ work and life at sea including controversial issues such as social security and employer’ liability. Importantly, the MLC seeks to abolish substandard shipping and foster fair competition for shipowners. Not surprisingly, compliance and implementation of the MLC is mutually beneficial for shipowners and seafarers. The Convention, reported as the fourth pillar of the international maritime regulatory regime together with SOLAS, MARPOL and STCW, has potential to boost the prosperity of maritime transport sector.
The MLC is a reflection of substantial developments in the maritime industry at the end of the twentieth century. The Joint Maritime Commission published a report in 2001 on the changes and challenges afflicting the sector from the second half of the twentieth century. Accordingly, new ownership structures emerged with lending institutions, such as banks, playing a significant role in the industry.
During this period, there were also technological advances such as computer monitoring of machinery, the development of satellite communication and cargo handling equipment. On the operational front, vessels were administered by specialist management companies which oversaw the technical and personal requirements of the ships. In addition, environmental disasters such as the Exxon Valdez in Alaska in 1989 and the Erika on the French coast in 1999 ushered a wave of environmental and safety regulations, generating additional operational costs.
Open, offshore and secondary registers lured shipowners facing raising costs from high-tech development, environmental regulations and sluggish freight rates. At the time these registers offered tax incentives and flexible crewing regulations. Offshore registers sedimented the internationalisation of shipping. On the one hand, vessels registered overseas beyond the regulatory arm of their country of origin. On the other hand, these registries also allowed for the recruitment of foreign crew at lower rates than the labour costs at traditional maritime nations. Shipping became a genuine global industry. In addition to the transborder trade it encompassed an international labour force, overseas ship registration and transnational ship management companies.
These developments had a direct impact on the nature and quality of seafarers’ employment. Technological development such as automation required specialist knowledge and retraining of the workforce. It also resulted in reduced manning levels, reorganisation of the working environment and a decrease in employment opportunities as computers and machines carried out tasks previously undertaken by seafarers. Shipowners constrained by declining freight rates, high costs of implementing technological advances and environmental regulations, sought operational savings. According to the ILO report ‘In many cases the saving could only be made by re-flagging to States entirely devoid of both indigenous maritime labour markets and functioning systems of labour regulation.’ Seafarers felt the brunt of these trade conditions. Certain actors chose to cut corners by employing mariners from irregulated markets and diminishing work and living standards.
Delegates at the 29th Joint Maritime Commission meeting identified the need to ringfence seafarers’ rights and protect the industry against poor practices and unfair competition. They contended that a new, consolidated and updated maritime labour instrument was necessary to reflect the challenges of a globalised industry. The Joint Maritime Committee adopted a resolution concerning the review of relevant ILO maritime instruments which recognized shipping as “the world’s first genuinely global industry” and as such “require[d] an international regulatory response of an appropriate kind – global standards applicable to the entire industry.” Over the next five years a High-Level Tripartite Working Group laid the foundations of a novel maritime labour instrument.
The MLC was adopted by the 94th (Maritime) Session of the International Labour Conference in February 2006. It is the consolidation of 68 ILO conventions and recommendations and novel provisions and enforcement mechanisms. It came into force on 20 August 2013 after 30 Member States representing nearly 60 per cent of the world’s total gross tonnage, registered their ratifications a year earlier. As of March 2022, the MLC had been ratified by 98 countries representing over 91 per cent of the world’s gross tonnage.
The MLC has been lauded for its innovations. Firstly, the Convention is the product of five years collaborative work between the ILO’s constituents: governments, employers and workers. Despite their differences, the parties were able to compromise and approve a single, comprehensive maritime labour instrument which establishes minimum standards of decent work for seafarers. This collaboration ensured that the Convention reflects the expertise of those with direct experience of the industry. They are the beneficiaries of its provisions and/or responsible for its implementation and enforcement. Doumbia-Henry et al (2006) also contends that the high-level consultation allowed for ‘concrete tripartite solutions for highly sensitive issues such as the provision of social security protection, employer liability and worker compliant mechanisms’. The MLC was envisaged to continue this social dialogue. The term ‘consultation’ appears 36 times in the body of the Convention and many standards require that national determinations are made after consultation with shipowners’ and seafarers’ representatives. For example, Article II (3) stipulates that
In the event of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of this Convention, the question shall be determined by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organizations concerned with this question.
The MLC also introduced flexibility to account for national developments and economic diversity. It supports different national circumstances by allowing signatories to develop law, regulations and measures which are ‘substantially equivalent’ to the mandatory provisions of the Code. Substantial equivalence is not carte blanche for ad hoc, administrative discretion, nor can it be applied to Title 5 of the Convention (Compliance and Enforcement). Indeed, the MLC stipulates that substantially equivalent measures must ‘satisfy’ the ‘object and purpose’ of the concerned provision(s) – Article VI (4)(a) – and give full effect to the provision or provisions of Part A of the Code – Article VI (4)(b).
Still, the Convention allows governments to adapt its implementation to their national context. A second area of flexibility is the non-mandatory status of the Guidelines on Part B of the Code. The ILO explains that the ‘special status’ of the Guidelines ‘is based on the idea of firmness on principles and rights combined with flexibility in the way those rights and principles are implemented. Without this innovation, the MLC, 2006 could never aspire to wide-scale ratifications’.
Compliance and enforcement
New approaches extend to the MLC’s compliance and enforcement mechanisms. For the first time, vessels engaged in international trade will have to carry an onboard certificate of compliance with maritime labour standards, the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance, Regulation 5.1.3. These documents will be accepted as prima facie compliance with the Convention by port state control inspection. The MLC also strengthens its enforcement mechanism by conferring responsibility for its implementation to all relevant parties: the shipowner, the seafarer (via the complaints mechanism), the flag state, port state, labour-supplying countries and the ILO. These parties have set of obligations within the MLC and are indirectly accountable for its success.
More importantly, the MLC introduces a ‘no more favourable treatment’ clause for vessels of non-ratifying states. This principle ensures that vessels registered in non-ratifying countries can no longer evade compliance with labour standards when they visit the port of ratifying states; they will be inspected on international labour instruments. Shipowners or operators who recruit seafarers from countries which have not ratified the Convention must conduct the necessary due diligence to ensure that recruitment and placement services meet labour standards. ‘No more favourable treatment’ expands the reach of the MLC and strengthens structures designed to eradicate substandard shipping. Concurrently, it prevents responsible shipowners who deliver the best environmental, safety and labour practices from being undercut by substandard ships. It also halts the race to the bottom on labour conditions which were reported in the 1990s. The ‘no more favourable treatment’ envisages a level playing field for shipowners and appropriate work and living conditions for seafarers.
Achievements and challenges
It is almost 10 years since the MLC came into force in August 2013. There have been numerable advances in the quest for decent living and working standards for seafarers. The Convention itself is a unique achievement since it codified in a single, clear and comprehensive instrument all aspects of seafarers’ social-economic needs. In addition, the Convention has delivered on its pledge of continuously evolving and improving to reflect new challenges in the industry. As previous reported, the MLC also secured standards for contentions issues such as social security and employers’ liability.
Despite the MLC’s innovations, considerable ratification and, positive impact on decent work, seafarers continue to encounter substantial challenges. ‘Since the entry into force of the MLC 2006 in 2013, we continue to see cases of non-payment of wages, poor provisions for food and catering requirements of seafarers, denial of seafarers right to repatriation, and cases of abandonment,’ stated Al Romero, Director of Marine Investigations, Liberian Registry. The industry is also witnessing chronic cases of fatigue, social isolation and mental health issues within its workforce. These difficulties are universally corroborated.
The non-payment of wages is one of the main concerns reported by seafarers on SeafarerHelp’s helpline. Delay or non-payment of wages have a significant impact on the workforce’s moral and stress levels. It is also detrimental to seafarers’ families who rely on breadwinners to meet their living costs. In 2020, the International Transport Workers Federation (ITF) recovered $44,613,880 of unpaid wages. These reports illustrate that despite the implementation of the MLC, wages remain a source of grave concern for seafarers.
Seafarers expressed concern about the timely payment of wages, underpayment, practices of double accounting and security for wages and jobs. Seafarers were prepared to turn to lawyers to recover their wages, but lawyers had little knowledge of the MLC, 2006. There was therefore a need for education for the legal profession, including judges, on the MLC, 2006.
Food is another emotive topic according to the Mission to Seafarers’ Happiness Index . Accordingly, seafarers indicate that food quality is low, laden with salt and fat and healthy options are scant.
The literature also reveals menu weariness where food variety is insufficient, and menus become repetitive. Moreover, seafarers complain that dietary provisions do not take into account religious and cultural diversity. While the food satisfaction barometer showed a slight increase in the last quarter of 2021 , seafarers indicated that supplies were not of the quality or quantity they expected or had in the past. Food provisions, especially healthy food options, will be discussed in the upcoming meeting of the Special Tripartite Committee of the MLC, 2006.
Abandonment is another serious and unfortunate trait of the industry. The issue has plagued the shipping industry for decades. It is a question which has involved both the IMO and the ILO . Abandonment imposes significant hardship on seafarers and their families. Seafarers are not only denied their wages but also essential supplies such as food, drinking water, fuel and medical care. Importantly, the uncertainty of not knowing when they will be paid and repatriated causes considerable stress. In 2021, the ILO abandonment database registered a record of 95 cases of abandonment involving 1,399 seafarers, a 10 per cent increase from the previous year, but a leap of 138 per cent from 2019. This increase can be partly explained by the pandemic which inflicted heavy financial lose in the sector. Nevertheless, abandonment tarnished the industry’s reputation long before Covid-19. In 2019, the crew of the MV Tamim Aldar made the headlines when they were finally released after more than 3 years at sea. At the time, it was reported that over 5,000 seafarers had been abandoned between 2004 and 2019. The Special Tripartite Committee, which has already approved an amendment on abandonment, will once again turn to the issue in May 2022.
In relation to fatigue, which was not a new issue, seafarers referred to pervasive violations in the observance of hours of work and hours of rest, which represented a collective failure of the international community and was a profound threat to safety.
With regard to career and skills development, seafarers indicated that they were anxious about future skills needs in the context of automation.
Live instrument: improvement and amendments
The MLC has an accelerated amendment process (Article XV ) which allows it to quickly respond to the changes and emerging needs of the industry. In April 2014, the Special Tripartite Committee of the MLC approved the first amendments to the convention. These sought to enhance protection for abandoned seafarers and secure compensation for seafarers or their families in case of death or long their disability. These amendments which entered into force on 18 January 2017 require vessels to carry an insurance certificate to prove financial security has been arranged.
The second meeting of the Special Tripartite Committee was held in 2016. It addressed shipboard harassment and bullying (Regulation 4.3) and a limited extension to the Maritime Labour Certificate (Standard A5.1.3). These amendments came into force on 8 January 2019.
The third set of amendments to the Convention were discussed in 2018. They addressed the crucial issue of employment rights during captivity. Henceforth, Seafarers’ Employment Agreements will be valid for the duration of seafarers’ captivity regardless of the contract’s expiry date or if either party had previously given notice. Furthermore, other entitlements such as wages will paid for the length of captivity, until the seafarers are released and repatriated or in case of death, until that day. These changes entered into force on 26 December 2020.
The Special Tripartite Committee of the MLC will meet next in May 2022 to consider further improvements to the Convention. Click here to see what to expect from the next meeting.