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It’s time to nip crew abandonment in the bud

It’s time to nip crew abandonment in the bud

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‘Seafarer abandonment should be called-out for what it is: the flagrant exploitation and neglect of vulnerable people. And in other walks of life, that is considered to be criminal behaviour.’ James Wilkes from consultants Gray Page goes on the offensive.

At last, I’ve found it! I’m not a human rights specialist or an MLC 2006 expert, so it’s taken a bit of researching. However, if anyone asks me where they can find a definition of seafarer abandonment I can now point them to the Text of the Amendments of 2014 to the Maritime Labour Convention.

It reads:

“…a seafarer shall be deemed to have been abandoned where, in violation of the requirements of this Convention [the MLC 2006] or the terms of the seafarer’s employment agreement the shipowner:

(a) fails to cover the cost of the seafarer’s repatriation; or

(b) has left the seafarer without the necessary maintenance and support; or

(c) has otherwise unilaterally severed their ties with the seafarer including failure to pay contractual wages for a period of at least two months.”

It goes on to say:

“…necessary maintenance and support of seafarers shall include: adequate food, accommodation, drinking water supplies, essential fuel for survival on board the ship and necessary medical care.”

So, a definition of seafarer abandonment exists and I’m sure someone thinks that it helps in in cases of abandonment. Excellent!

Except that it’s not. It’s a very long way from being “excellent”, because when we see seafarers that have been abandoned, what we are observing is not a situation defined in the parlance of the International Labour Organisation (ILO). What we are witnessing is a crisis, at the centre of which are people who are being deprived of many of the basic necessities of life; people who have usually gone unpaid for many months (not just two), which consequently threatens the welfare of their families as well.

More than that, we are witnessing a set of circumstances that are in their end state.

Seafarer abandonment doesn’t happen overnight.

Like a disease it takes hold over a period of time and gets progressively worse if left untreated.

Unlike a disease, however, where often the symptoms can be equivocal or so mild as to make early diagnosis difficult, the early signs of abandonment are obvious to anyone who cares to look.

The first indication that a crew are facing serious trouble is when they are not being paid their wages.

There are only two reasons why a shipowner does not pay his crew; because he can’t or because he won’t.

A shipowner who can’t pay his crews’ wages – because there isn’t the cash in the business to do so – is insolvent.

A shipowner who won’t pay his crews’ wages is guilty of exploitation.

Either way, the consequences for the crew are largely the same and the direction of travel is going one way only, unless there is early intervention.

And therein lies the problem.

Modern shipping is systemically and culturally ill-suited toward intervening early to nip problems in the bud.

Whether it is in matters of safety, security or the welfare of its seagoing employees, the incentives not to act early are too strong. Invariably, those incentives are financial.

The system that is supposed to address seafarer abandonment actually transfers financial responsibility away from shipowners. It makes the act of abandonment someone else’s problem to deal with. It is shot-through with moral hazard.

In the first instance it forces seafarers to raise the alarm when they have not been paid their wages; something they are understandably reticent to do for fear of what it can mean for their current and future employability.

If unresolved at that point, it then falls then to flag Administrations, port state authorities, unions and, more often than not, charities to attempt to pick up the pieces of a crisis that deepens quickly and relentlessly.

Seafaring is an occupation that is inherently vulnerable to exploitation. Seafarers whose wages haven’t been paid cannot simply withdraw their labour or walk off the job. How do they do that? Where are they going to go?

Therefore, seafarer abandonment should be called-out for what it is: the flagrant exploitation and neglect of vulnerable people. And in other walks of life, that is considered to be criminal behaviour.

In recent years, nation states have been quick to criminalise seafarers. Now they need to be as quick to criminalise those who abandon them.

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7 Comments

  1. Andrew Craig-Bennett
    October 30, 2017 at 10:54 pm

    Thank you; this is exactly correct.

    The “system” doesn’t really help seamen at the end of their tether; it works too slowly.

    I would like to record the only example, in my more than forty years career, of someone, who was in a position to really help, going the extra mile to help an abandoned crew, tohis own detriment. This was in 1979; the very-much-still with us Dutch ferry and salvage company G Doeksen en Zonen of Terschelling had salvaged the Greek bulker “RIO D’ORO” and brought her into Harlinge under Lloyds Open Form. I worked for their London solicitors and was putting together their LOF claim.

    Pieter Doeksen called me to say that the crew had not been paid and had been abandoned by the owners; the ITF had been contacted but had not done anything.

    He asked if he could help the crew. I told him that under Dutch law, which was the lex fori, the crew’s claim for wages ranked ahead of his company’s claim for salvage. “Doesn’t matter” said Piet, “we are going to help them!” And he hired a lawyer for the crew, who arrested the ship ahead of his own claim. This example of a shipowner behaving admirably motivated me as a young lawyer to get a good result for him.

    And that’s the only case in my experience.

  2. Lars H. Bergqvist
    October 31, 2017 at 9:42 am

    A seafarer abandonment insurance is mandatory for shipowners since 18 January 2017.

    1. James Wilkes
      October 31, 2017 at 10:05 am

      Not quite, Lars. Reg 2.5 of the MLC 2006 only requires a system of financial security “to assist seaferers in the event of thier abandonment”. Insurance can qualify as financial security, but so to a “national fund” or a “social security scheme”. If you look at the “Text of the Amendments of 2014”, you will see how limited the cover provided by those systems can be.

  3. Robert Gordon
    October 31, 2017 at 11:40 am

    The solution to unpaid crew wages on board ships arriving in Australia has been for the crew to contact the local ITF rep office. The ITF then notify AMSA who will attend of board to investigate as part of a PSC inspection. PSC have a specific power to ascertain if the vessel and owners are in compliance with the MLC 2006. This includes the monthly payment of all crew wages due. If the crew have not been paid, AMSA will detain the vessel until clear evidence of payment is provided. The last vessel found not to be in compliance with MLC wage obligations was the ‘Rena’. She was detained for several months until all back wages were paid. As a ‘going away’ present, AMSA banned the vessel from the Australian coast for a period of 12 months. My own SeaBlog post on this story is at http://seaprof.com/2017/08/15/mlc-breach-amsa-snatch-ship-that-failed-to-pay-crew-wages/.

    The Canadian PSC have also been active in enforcing the MLC in order to protect seafarers. It seems that other enlightened and decent maritime nations may have done the same. Does anyone have any similar reports on PSC assisting crew to get their wages paid? Bottom line is that PSC enforcement of the MLC produces a faster and more positive result than attempts by the crew to arrest a ship for their wages. Arrest is expensive and require a large deposit to be made to cover service of the warrant and other court costs. These cases are also rarely be taken on by lawyers on a pro bono basis. Nor do the ITF seem inclined to put their hands in their pocket.

    The evidence appears to be that PSC enforcement of the MLC is the new solution for seafarers who have not been paid. As for seafarers who have been abandoned, the MLC recently made it obligatory for owners to post security to cover the costs of repatriation for all crew members as well as at least 4 months back pay. This security is normally in the form of a P&I Club certificate and this certificate must be posted up on board for all inspectors and the crew to see. Is there any reason this should not work subject to the security being provided by an IG P&I Club or another reputable and licensed provider? If not, it seems to me that the centuries old problem of the abandoned seafarers should soon become an exceptional scenario and not a common occurrence.

  4. Lars H. Bergqvist
    October 31, 2017 at 12:10 pm

    James,
    Nevertheless, the shipowners have financial obligations to fulfill, manifested in a certificate to be carried onboard.
    Nothing wrong with MLC, it is the responsibility of flag and port states to make sure that the convention is followed.

  5. Robert Gordon
    October 31, 2017 at 12:46 pm

    The problem of the unpaid seafarer has been resolved on board ships entering Australia by AMSA. The crew notify the ITF and the ITF notify AMSA. AMSA then attend to conduct a full PSC inspection including enforcement of the MLC. The MLC provides an obligation to pay seafarer wages in full and on a monthly basis. If wages are not fully paid, then AMSA will detain the vessel. The last vessel detained was also slapped with a 12 month ban on entering Australian waters. If other national PSC authorities then the unpaid seafarer problem could be solved on a global basis and formal ship arrest and the ensuing legal costs would no longer be necessary.

    As for abandoned seafarers, it is correct that security for the cost of repatriation must now be provided under the terms of the MLC and a certificate must posted on board for both the crew and PSC to see. This is almost invariably provided by the owner’s P&I Club and it includes payment of at least 4 months back wages. It therefore seems to me that the centuries old problem of the abandoned seafarer is drawing to a close such that such incidents should soon become a rarity.

    The key must now be to quickly educate seafarers as to the potential for the ITF and PSC joint process to trigger vessel detention for MLC non-compliance if wages are not paid. The other protection for seafarers will be to understand the value of the repatriation and back wages security as posted on board. Is it provided by an IG P&I Club so as to provide an effective guarantee or by some unknown organisation that has no genuine credentials? If there are concerns, then the seafarer’s own union or the ITF should be able to clarify the validity of the security.

    1. Andrew Craig-Bennett
      October 31, 2017 at 9:07 pm

      Thanks Robert.

      Just to put the icing on the cake, will AMSA publish the names of the Manning agents and the technical managers in future cases of non- payment of crew wages (or, as we might say, of shipboard slavery?)