In light of international Day of the Seafarer, Keystone's Daniel Crockford and Alex Penberthy review whether, following the introduction of the Maritime Labour Convention in 2013, aims to standardise seafarers’ rights have been successful so far.
The Maritime Labour Convention 2006 (MLC) has been the subject of much debate since its inception in August 2013. Arguably the single most important and wide ranging convention of recent time, the aim of the MLC was to achieve standardisation of seafarers’ rights – bringing together, for the first time, the seventy or so conventions which have been in place since the 1920’s. It also aimed to modernise these conventions, to reflect the constantly evolving and increasingly more global marine and shipping landscape.
The provisions of the MLC automatically apply to all ships which normally carry out commercial activities, whether publicly or privately owned. Therefore, it applies not only to large commercial vessels but also to commercially registered yachts or yachts that are actively chartering.
The MLC does not apply to:
One of its fundamental principles is to ensure those who work at sea are kept safe, treated fairly and not discriminated against. But where are we with it now? In terms of uptake, 67 countries representing around 85% of global shipping have adopted the MLC with the USA being a noteworthy exception. However, the MLC contains a “no more favourable treatment” clause, which means that ships flying the flag of countries that have not yet ratified the MLC will be subject to the same inspections as those flying the flag of a country that has ratified it. This to prevent unfairness in trading and ensure that ship owners who treat their crew badly and get away with it do not have a commercial advantage over those towing the MLC line. The USA and some other non MLC countries have therefore developed a voluntary inspection program for ship owners who wish to document compliance to satisfy port state control in MLC countries. There is of course no guarantee that these will always be honoured by any given Port State Control.
The MLC has generally been well received by employers and unions alike. Ship owners like the fact that they now have an advantage against unfair competition from substandard ships and the MLC provides a useful framework and reference point for drafting onboard health and safety procedures. Further, the vast majority of organisations should have had no difficulty in complying with the substance of the MLC, since it is largely derived from existing maritime standards and accepted good employment practice. The key difference is that the enforcement mechanism is new. Those pre MLC standards provided helpful guidance but lacked real teeth when it came to enforcement.
The provisions of the MLC are now effectively policed by Port State Control. Vessels that fail to comply can be detained which brings with it obvious commercial implications. Within weeks of the MLC being adopted we saw the first wave of detentions. This was despite the International Labour Organisation (ILO) advising countries to show leniency in the first 12 months of the MLC’s operation. These detentions were for various reasons, including unpaid wages, recruitment fees paid to crewing agents, lack of wage agreements or employment contracts with crew and poor conditions on board. A crew member had also allegedly been refused access to a doctor.
In terms of compensation within the UK, where there has been a breach of the MLC a crewman cannot for example bring a claim through an employment tribunal unless he can establish UK jurisdiction. The obvious question then is how can the MLC help a foreign crewman in these circumstances? Organisations that breach provisions of the MLC can be imprisoned or fined. For example if a seafarer is working on a ship that does not have an MLC compliant complaints procedure or he is subject to harassment or bullying and suffered what the MLC refers to as a “detriment”, the maximum penalty is a fine and/or imprisonment of up to two years. Teeth indeed.
In the UK it is the Maritime and Coastguard Agency (MCA) who have the power to investigate whether a seafarers complaint has been dealt with appropriately and whether they have suffered a detriment. The ship owner does have a defence if they can show they took all reasonable steps to ensure compliance with the MLC. If the seafarer does not accept the MCA’s findings then they can apply to the Court for judicial review. The incident will then need to be investigated again which is costly in terms of time and management for ship owners. Again the prospect of this acts as a good commercial deterrent
Guidance and a certain amount of reassurance for ship owners was provided in the case of Wilson v Secretary of State for Transport [EWHC 2330 (Admin)2015] EWHC 2330 (Admin).This involved a seafarer who worked on a cruise ship. He made a complaint against his employer and alleged they were not adhering to their own “core values”. The complaint was escalated to high ranking officials within the company. His employer’s response was to sack him and send him home. The seafarer complained to the MCA that his employer had victimised him in breach of the MLC and that he had suffered a detriment. The MCA investigated and concluded there had been no breach of the MLC. The seafarer had actually complained about administrative errors with his pay and his accommodation aboard the ship being moved. These were not covered by the MLC and no further action would be taken. He took the claim further in the UK Courts and applied for Judicial Review but the findings of the MCA’s investigation were upheld. He had no claim.
The industry as a whole has had to adapt to the changes brought about by the MLC. For example P&I Clubs have changed their rules in response to the MLC’s provisions on repatriation. Under the MLC, seafarers must under certain circumstances, be repatriated at no cost to themselves. Ship owners have to provide financial security for these costs and in order to assist with MLC compliance, all 13 International Group Clubs have agreed to extend the scope of standard P&I cover to include repatriation in cases of insolvency and in the other circumstances listed in the MLC where seafarers are entitled to repatriation
A number of other industries have adapted their products and services to assist compliance. There are yacht management software packages available which help ship owners organise and keep track of the documents they need to keep aboard for possible inspection by Port State Control. Some software packages also keep detailed records of crew salary, medical issues, training and contact information. An accurate record hours of work can also be kept, to ensure applicable MLC rules on hours are not exceeded.
Ship owners now need to use an MLC certified crew agency for recruitment. This is to ensure crew are treated fairly and only enter into employment contracts that reflect the rights they have under the MLC. Each crew member needs to have an employment contract in an approved form. These need to specify the rate of pay, entitlement to leave and state the contractual working hours. The aim is to ensure fairness and transparency. Owners also need to ensure crew are paid salaries on a regular basis and adhere to the rules in the MLC relating to hours of work.
There are some areas where the MLC might at some point be developed further. There is currently nothing in the MLC that deals with the issues of visas for shore leave or protection of the right to strike. We should however remember that it took 5 years for the MLC to be developed and so further reforms seem unlikely in the short term particularly since there are many countries yet to ratify the existing provisions.
Lloyds Register have produced a useful checklist which sets out in detail the items that must be kept aboard a vessel and steps that need to be taken to ensure compliance with the MLC. A copy can be downloaded from their website.
This article was written for and first published by Ship Technology Global.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.