Cynics might suggest, with cause, that unfair treatment of seafarers is becoming mandatory in an increasingly anti-seafarer global atmosphere. Indeed,the United States has reserved to itself the right to treat seafarers unfairly and deprive them rights provided under the incoming code for maritime casualty investigation. Recent court actions in Hong Kong and South Africa increase the urgency of the debate.
In recent weeks BIMCO has published three key articles on these an other issues, which MAC is publishing with BIMBCO’s permission, edited only for style. They are a valuable summary of the issues faced by seafarers in trouble:
In a this three article series, republished with permission, BIMCO focuses on unfair treatment of seafarers, including the general trends observed in recent cases, as well as the implications for the seafarers involved. The series, published to mark the International Maritime Organization’s Year of the Seafarer, concludes with an overview of the international rules and guidelines dealing with fair treatment of seafarers
Recent cases of unfair treatment of seafarers appear to demonstrate a drift towards a stricter liability regime. Also, the cases observed have serious implications for the seafarers involved, notably in terms of long periods of detention and a number of “side-effects” of a more practical nature, as well as for the shipping sector as a whole. The shipping industry, as well as the international community, is aware of the potential implications and a number of measures have been taken to counter these problems.
The main set of provisions adopted in this respect is contained in the IMO/ILO guidelines on fair treatment of seafarers which are aimed at giving advice on steps to be taken by all parties who may be involved following a maritime incident, for example the port, coastal, flag or seafarer’s state as well as the seafarer and shipowner. The guidelines, which were adopted by the IMO’s assembly and the ILO’s governing body in December 2005 through resolution A.987(24) and promulgated by the IMO and ILO on 1 July 2006, request that all necessary measures should be taken to ensure the fair treatment of seafarers and recommend that they are observed in all instances where seafarers may be detained by public authorities in the event of a maritime accident. The protection prescribed by the guidelines should apply both following the incident and during any investigation and detention by public authorities, and detention should be no longer than necessary. Although the guidelines remain voluntary, they are obviously of key importance for protecting the rights of seafarers.
In addition to the guidelines, positive developments both in the IMO and ILO have taken place which should reinforce the fair treatment of seafarers. In 2006 the ILO adopted the Maritime Labour Convention (MLC). This unique piece of legislation consolidates and updates more than 65 international labour standards related to seafarers simplifying the existing maritime legislation while ensuring a high level of minimum standards for working and living conditions for seafarers – valuable contributions to the fair treatment of seafarers.
The convention has been agreed as part of the tripartite negotiating procedure employed by the ILO involving governments as well as employers and employees’ representatives, ensuring at the same time a high level of backing for the rules adopted. This backing appears also to be present for the MLC convention, parts of which have already been implemented in EU law via a social partners’ agreement. If widely acceded to, the convention will be a cornerstone for social rights in the shipping sector and, with time, do away with the numerous other rules in place, which have very different levels of support today. BIMCO considers that the convention would be a major step in the right direction and strongly supports it as a major contribution to the shipping sector and the fair treatment of seafarers worldwide.
The MLC, in addition to setting out living and working conditions for seafarers, contains a mandatory provision obliging states to hold an official inquiry into any serious marine casualty leading to injury or loss of life that involves a ship flying its flag, as well as an obligation to co-operate with other states to facilitate such an investigation. Although this provision is mandatory and the MLC could be expected to enter into force in the foreseeable future, it does not as such specifically address the fair treatment of seafarers in relation to marine casualty investigations.
This is also why the adoption of the IMO Code of International Standards and Recommended Practices for a Safety Investigation into a Marine Casualty or Marine Incident – the Casualty Investigation Code – is so significant. The overall purpose of the Code, which entered into force on 1 January 2010, is to facilitate objective marine safety investigations for the benefit of the shipping sector as a whole. The detailed provisions in the code on obtaining evidence from seafarers should improve treatment of seafarers involved in such investigations. The inclusion of these provisions in the mandatory part II of the Code is essential in so far as it puts further weight to seafarers’ entitlement to fair treatment worldwide and constitutes tangible rules, which have to be applied in all marine safety investigations. It is worth noting that the US has reserved its position on the code and that the code will not apply to other types of situations than casualty investigations, meaning that it does not introduce a general requirement for treating seafarers fairly. Nevertheless, the benefits for fair treatment of seafarers are visible and clear and BIMCO therefore strongly encourages states to implement and comply with its requirements.
It goes without saying that, as regrettable as it might be, there will always be cases involving unfair treatment of seafarers. The risk of unfair treatment is a fact of life and this cannot be avoided entirely. But the global nature of the shipping sector – with seafarers of all nationalities travelling around the world with no specific country as their workplace – increases the risk of unfair treatment. This is somewhat paradoxical since the international character of the sector and of the seafaring career is considered as an implied and positive part of shipping, underlining its role as the leading transport mode in today’s globalised world.
Some incidents give rise to considerations on possible changes of policy and/or international regulations. A significant and current example of this is the Pacific Adventurer. In this case, a container ship spread 270 tonnes of fuel oil onto beaches north of Brisbane, Australia. The disaster occurred when a cyclone hit the area in March 2009. Preliminary investigations showed that the vessel’s Master had set course towards Queensland despite warnings of extreme weather. He has been charged with illegally discharging oil and faces fines of up to AU$350,000. As a result of the case, Australia has been successful in proposing to the IMO’s Legal Committee that the level of liability under the LLMC 96 Convention should be reviewed in order to consider whether the existing limits are adequate, even if past case history conducted by the International Group of P&I Clubs shows that only very few cases have exceeded the present limits set by LLMC96. It should be noted that the owner of the vessel ended up paying more than the double its legal obligation arising from the oil spill as part of a settlement with the Australian government. While the pressure to pay is obvious, BIMCO strongly believes that the whole purpose of the international liability system is superfluous if disregarded in cases exceeding the limits and it is of high importance to have an international system which is reliable and realistic.
BIMCO continues to advocate strongly for the fair treatment of seafarers and is constantly monitoring relevant cases and developments in the legislative field with a view to improving conditions for seafarers and avoiding unfair treatment. New ways of addressing the issue and of assisting in the fair treatment of seafarers are continuously being considered. One product which is in the process of being further refined and offered on the market by some insurance companies relates to the possibility of taking out insurance for liability of the crew, as well as for expenses related to repatriation of seafarers following detention. Furthermore, as the procedural time-frame from detention until the trial takes place has considerable impact on seafarers, it is being considered whether it would be possible to ensure that detained seafarers’ cases are heard rapidly in court to speed up their return to their country of residence and thus enable them to take up their work again quickly and minimize the impact of an incident.
The IMO’s designation of 2010 as the “Year of the Seafarer” is an excellent opportunity for BIMCO to increase focus in these and other areas relating to fair treatment of seafarers in order to maintain awareness about the negative implications of unfair treatment and contribute to the effective improvement of the situation for the benefit of all stakeholders involved – first and foremost the seafarers.