How to find your way around the legal maze

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2006

Exercising your legal rights can be confusing and difficult at sea. Claudia Bennett, of the ITF Legal Department, explains why.

Have you ever heard of the old sailors’ saying: “Being at sea is like being in prison, only with the added risk of drowning”?

Captain Apostolos Mangouras might have found time to reflect on this saying after he was jailed for 83 days by the Spanish authorities following the 2002 sinking of the Prestige oil tanker – and was subsequently detained in Spain until November 2004. So too might any member of the “Karachi eight”, detained in Pakistan following the sinking of the Tasman Spirit in 2003, or any number of other seafarers who have fallen foul of the courts following an incident at sea.

Criminalisation is just one of many problems faced by seafarers in the complex working and legal environment of a ship at sea. But what makes the seafarer special, and especially vulnerable, in a legal sense? The answer lies in the multinational character of the industry.

Seafarers often engage in voyages to distant ports, in the course of which they are exposed to many dangers. They might get injured while on board a vessel or, for various reasons, find themselves left behind in a foreign port. On a daily basis, ships move through the territorial waters of several countries (with different jurisdictions).

Which country?
So, if a seafarer needs to establish where to bring a claim, and under which law, different international elements have to be analysed. The nationality of the ship and of the parties in conflict, the state in whose territorial waters the ship was sailing when the incident occurred, and the contract state are just a few of the elements to be untangled.

Generally, those on board the vessel live under the law of the state whose flag the ship flies. Thus, any births, deaths and marriages on board, for example, rank as events happening in the country whose nationality the ship is accorded.

In the days when national shipping was prevalent, there was a definite link between the seafarer, the flag of the ship he or she was serving on and the shipowner. All were the same nationality and therefore the seafarers could look to their national laws for protection. This is no longer the case, due to a massive increase in the number of flag of convenience ships in world trade.

Even at national level, the growth of second registers has seen a corresponding increase in the employment of non-domestic seafarers on these vessels. However, relevant domestic legislation in shipping nations has not adequately reacted to these changes.

Lawmakers are often reluctant to extend protective legislation to seafarers who are foreign nationals. At the same time, many of the legal rules that affect seafarers in their relations with the employer are not labour laws as such but provisions of maritime codes and regulations.

Patchwork of rules
For historical reasons, the labour laws applicable to land-based workers in most countries explicitly exclude seafarers. As a result, national legislation offers only a patchwork of uncoordinated regulation that can be avoided by substandard elements within the industry.

The International Labour Organisation (ILO) and International Maritime Organisation (IMO) have established many rules and recommended practices to promote the rights of seafarers. However, international law has its weaknesses. Firstly, it needs to be ratified (in other words acknowledged and accepted) by member states. Secondly, the enforcement of it remains the prerogative of the individual ratifying nation. Hence, international law is only as effective as the political will of the member state to enforce it.

The Maritime Labour Convention adopted in 2006 (details on pages 18-19) could help to address these problems, though it is yet to be brought into force. In the meantime, we are stuck with this complicated, multi-layered web of jurisdictional elements, national and international laws.

Imagine being abandoned in a foreign port, where you don’t know anyone. Your wages have not been paid and you cannot make yourself understood. Any seafarer who has been in this situation knows how daunting the prospect of determining where and how to bring a claim can be. You could turn to a lawyer for help but, let’s face it, lawyers don’t come cheap.

Who is to blame?
There may be other, more practical, problems. At face value, it might seem easy to identify the “shipowner” as the employer, against whom you would expect to bring your case. But shipping practice has developed so that there is often a web of corporate identities involving the ship, with the shipowner very difficult to track down.

There are also the various actors placed in between the seafarer and the shipowner, such as manning agencies or ship management firms, which may also serve to block easy access to the shipowner.

The ship’s registry may disclose the name of a company as the registered owner, but, in reality, this may be a single ship company with few assets other than the ship. It may be an offshoot of a larger, but more illusive well-funded parent company.

So, even if you manage to identify a defendant, any obtained judgement could be very difficult to enforce.

Changes coming
Fortunately, the seafarers’ situation is currently receiving increased recognition in the international community. The general failure of governance in international shipping is now widely acknowledged as an important contributory factor in all the major problems facing international shipping.

Also, there seems to be increasing recognition of the need for flag states and shipowners to live up to their responsibilities to the international community, to the marine environment and to seafarers.

Major efforts have been made to strengthen the law at the international level to the benefit of the seafarer, most importantly through the Maritime Labour Convention already mentioned. In order to make a tangible difference, these efforts will need to bring about improvements at the national as well as international level, and bring greater accountability to other private actors in the shipping industry; as well as improved dispute settlement mechanisms.

The key to improving safety and quality at sea is to bring together the economic and social factors in shipping and take good care of the industry’s prime assets – its employees. This has been understood and achieved by companies in other sectors all over the world. Now the balance has to be found in shipping too.

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