The Legal Protection of Seafarers During the COVID-19 Pandemic: Ensuring Fair Labor Practices and Crew Welfare
1.2 Significance of the Topic
Primarily, seafarers are employed under the contract of employment, which is a legally binding document setting out the agreed terms and conditions between both the seafarer and the employer. Yet, with the current circumstances, many seafarers are being asked to take extended leave, to forfeit any claims to remuneration, and in some cases simply having their contracts terminated. This is irrespective of the fact that many seafarers have no legal entitlement to work ashore and are without the necessary qualifications or experience to do so.
This could be seen in the predicament faced by seafarers today, especially with the onset of the 2019-nCoV outbreak. Many seafarers have reported being denied access to ports or airports, preventing crew changeovers and leaving some marooned at sea while others are stuck at home unable to earn a wage. This has given rise to real concerns for their mental wellbeing, and ultimately the livelihoods of themselves and their families.
The essence of the maritime industry lies with the seafarers who work on board sea vessels to ensure the well-oiled machinery of commerce does not come to a halt. These seafarers, being the fulcrum of the entire industry, are subjected to the harsh realities of the sea; notwithstanding pirates or shipwrecks, the worst and most challenging aspect of their lives may come from issues pertaining to their own employment.
2. Challenges Faced by Seafarers during the Pandemic
It is no secret that the recent crisis has hit the shipping industry hard. Seafarers perform an essential role in keeping global supply chains functioning, and yet the pandemic has caused unprecedented obstacles to fulfilling crew changes for the world’s 2 million seafarers. Restrictions on shore leave and access to essential medical care have further exacerbated seafarers’ difficult working conditions. Travel restrictions also mean that seafarers who have completed their contracts have no means of returning home. This can have severe implications for seafarers’ mental wellbeing and can further impact on their ability to work effectively. On the other side of this are seafarers that are left stranded in foreign countries unable to join ships, with no income and growing financial commitments at home, this can lead to desperation and anxiety for their future.
The broader economic impact of COVID-19 is likely to have lasting consequences for the shipping industry. The knock-on effect of limited global trade and reduced consumer demand will mean that many shipping companies will be forced to reduce operations and some unfortunately may not survive. This means limited job opportunities for seafarers in the near future and the possibility of unemployment for some. Unemployment for seafarers is particularly severe in their home countries where the maritime industry may be the primary source of income.
2.1 Restrictions on Crew Changes
The ability of seafarers to begin and end their employment is governed by industry guidelines and worldwide maritime laws, crew agreements, and the essential component of such agreements. Financing the change by means of operations that are likely to have a disproportion between shooting and hiring costs in a dynamic marketplace. For example, the reported 24% increase in the costs of providing Filipino seafarers to their ships between January 2006 and July 2008 came at a time of escalating shortage in Filipino officers and the global market for maritime labor.
A need to answer business costs of hiring and ending seafarers, or financial costs that import operations could defer changes, together with the reality that seafarers are balanced globally, means that the ship operating community could react to changes in costs by substituting seafarers of one particular country, or seafarers whose wages have increased due to market changes, with seafarers who are cheaper to hire to equal skill. This could cause access to various providing countries to become focused, and to a reduction in wages and conditions for certain groups of seafarers, or seafarers generally. Consideration should also be given to the legal problems of seafarers who are employed under contracts for specific periods or undertakings, or who are not considered to have a continuing employment in the general law of the nation of the ship’s flag, who may be dismissed by reason of being higher cost, with the cause of the dismissal being concealed in a medical fitness to work assessment. Widespread unemployment among seafarers, or seafarers unable to gain employment by reason of lack of access to ships, is also an implicit risk.
There likely will be an increased number of seafarers who are to be considered “stranded workers”, unable to return to their home countries and families, or who are employed on ships which operators are trying to place into lay-up. This has implications for the extension of rights of seafarers who are not soon beginning new employment or who are to be employed for the limited period of the ship’s tour, and the protection of those rights.
2.2 Health and Safety Concerns
Whilst onshore, seafarers must ensure they adhere to public health guidance and regulations to minimize the risk of infection and in turn transmitting the virus to colleagues onboard. Where seafarers may encounter problems is accessing flights to and from the ship, given the scarcity of commercial flights or changes to immigration policy i.e. requirements to quarantine or visa constraints. Delays or cancellations to flights may result in a seafarer being stranded onboard, or worse the impossibility of relieving a crew-member whose contract has terminated. This may result in excessive extension of seafarer employment agreements which could have implications for seafarer rights and entitlements such as the right to repatriation, wage concerns, or potential job loss. These situations will be discussed in greater detail in the Economic Impact section.
Ensuring a safe working environment for seafarers is essential to their health and welfare. However, given the unprecedented nature of the COVID-19 pandemic and the fact that it is still ongoing, it is impossible to guarantee a COVID-19 free environment. Nonetheless, proactive measures should be taken both onshore and onboard to mitigate the risk of infection for seafarers. If a safe working environment is not provided, a seafarer may be entitled to stopping work or leaving the ship depending on the seriousness of the health and safety risk.
2.3 Mental Health Issues
– Fear of infection: This fear can cause extreme anxiety as the individuals are trapped on their vessels. They worry for their health and the health of their family as they have limited access to hospital care.
– Working over contract: A number of seafarers are having their contracts extended because they are unable to return home. These crew members are already stressed and anxious due to the situation and have been forced to work additional time away from their family and home. This impacts negatively on their mental health.
– Boredom: Officers and crew who are doing an extended tour of duty onboard ship due to this situation have the potential for boredom and low morale due to lack of external communication and mental stimulation coming from problems to solve in port and at sea. This can lead to depression and lowered mental health.
– Poor treatment: There are several reports of seafarers being discriminated against in terminals due to the nature of their recent work. They are being turned away from essential services and held in poor facilities. This kind of treatment can be detrimental to mental health.
In an article that examines the rights of seafarers during the COVID-19 pandemic, it is relevant to mention the mental health implications the crew members face as there are a number of psychological stressors that can be caused by the situation. These stressors include, among other things:
2.4 Economic Impact
If the employment is terminated at the behest of the shipowner, the seafarer might be absent of any rights or welfare protection and potentially jobless.
Should the employment for the seafarer draw to an end during their time abroad and there exists a disability due to injury, the seafarer may be entitled to return home and claim compensation for an employment-related injury, just like any worker in their own country. Nevertheless, as the seafarer may be a national of a different country than the shipowner and possibly a crew of mixed nationalities, the adopted convention would not allow a seafarer to return abroad and claim compensation due to the convention applying to the law of the shipowner’s country. The only possibility for such a seafarer to claim compensation is if the shipowner has an agreement with an insurance company and has purchased a P & I policy.
The International Maritime Organization (IMO) reports that there are over 1.6 million seafarers worldwide. By their professional service, seafarers enable the shipping of 90% of global trade. Every seafarer’s encounter with a shipowner is governed by a document containing the employment conditions known as the articles of agreement and requires a seafarer to a specific time period. However, a seafarer may be brought to court and inserted into prison and therefore detained over a dispute regarding their respective obligations. This results in a seafarer abandoning the employment. Their current status is unclear as to whether they are entitled to be protected, as any obligations may have been void involuntarily and entitle the seafarer in question to compensation.
3. Legal Framework for Seafarers’ Protection
International legal frameworks are critical for the protection of seafarers, given that shipping is an inherently international industry. Historically, the International Maritime Organization (IMO), the United Nations specialized agency with responsibility for the safety and security of shipping and the prevention of marine pollution by ships, has been the principal actor in developing binding international conventions… for example, the International Convention for the Safety of Life at Sea (SOLAS), the International Convention for the Prevention of Pollution from Ships (MARPOL), and the Convention on Standards, Training, Certification and Watchkeeping for Seafarers (STCW). These agreements were all driven by analysis of the dangers inherent in the industry to ships, property and environment, with direct or consequential effects on seafarers themselves. That said, despite extensive focus on seafarers’ safety and training, these agreements do not provide meaningful regulation of seafarers’ employment or comprehensive legal protection for seafarers. Step-by-step analysis of the conventions published by the IMO in 2004 suggested that some progress had been made in identifying that seafarer employment was in a poor state, and through consideration of a draft convention on seafarers’ conditions of employment, the early stages of an employment law framework were developed. This can be taken as an indication that the current economic crisis facing employment of seafarers is not beyond IMO consideration. However, the recent an IMO video conference focused on ensuring seafarers’ and passengers’ safety and the protection of shipping and the environment from the impact of COVID-19 has led to the development of a ten-point plan for ensuring essential travel and transit of seafarers. This does directly address the current impediments preventing crew repatriation and does acknowledge the human rights of seafarers as laid down in the United Nations Convention on the Law of the Sea, so it is possible that the pandemic and its affect on seafarers has brought employment law and legal protection onto the IMO’s agenda.
These newly established needs called for efforts to map pre-existing legal frameworks and attempt to ensure that these provided adequate protection for seafarers’ employment and seafarers themselves during the COVID-19 pandemic. Four broad areas of law were considered: international guidelines and conventions; national legislation; and case law.
3.1 International Maritime Organization (IMO) Guidelines
The IMO guidelines for ensuring the safety and health of seafarers were compiled over many years, but mainly as a result of the occurrence of the crashes of the ERIKA and PRESTIGE. The IMO assembled a special intersessional working group to specifically look at this issue, clearly demonstrating the need for the guidelines. The ERIKA and PRESTIGE resulted in the discharge of large amounts of oil off the coasts of France and Spain.
These guidelines are contained in a resolution on the guidance to administrations, port state control authorities, companies, and seafarers on the implementation of the Maritime Labour Convention, 2006; amendments to the MLC, 2006 and the Seafarers’ Bill of Rights and are succinct and pointed. They demonstrate a new level of commitment by the IMO to ensure that the health and safety provisions in the MLC and the Seafarers’ Bill of Rights are properly enforced and that the excesses of the past are not repeated. This is particularly important given the current global economic conditions and the growing waste of ship over human resource. (Whether or not these guidelines will be properly enforced is another question and one that only time will tell).
3.2 International Labor Organization (ILO) Conventions
International Labour Organisation (ILO) is a specialised agency of the United Nations which seeks the promotion of social justice and internationally recognised human and labour rights. It was created in 1919, in the wake of a destructive war, to pursue a vision of lasting peace through social justice. The primary means to attain this is by promoting rights at work, encouraging decent employment opportunities, enhancing social protection and strengthening social dialogue on work-related issues. The unique tripartite structure of the ILO gives an equal voice to workers, employers and governments to ensure that the views of the social partners are closely reflected in policies and programmes. The ILO formulates international labour standards in the form of conventions and recommendations setting minimum standards of basic labour rights: freedom of association, the right to organise, collective bargaining, abolition of forced labour, equality of opportunity and treatment and fair wages; providing welfare, protection and codification of workers conditions. These standards are fundamental to the ILO’s efforts to promote social justice and are the means to provide basic protection to all workers globally. Though standards are framed primarily to address the needs of workers in an organised sector, there is no distinction between workers based on the size and formality of the enterprise, or the type of job. All ILO member countries are expected to respect and promote the principles contained in its standards, even if they have not ratified the relevant conventions.
3.3 National Legislation and Regulations
The only comprehensive legislation enacted by a developing state is the Philippines, which passed Republic Act No. 8042 known as the Migrant Workers and Overseas Filipinos Act 1995. This Act has been described as one of the most advanced pieces of legislation aimed at protecting seafarers. Among its many provisions, the Act stipulates that the Philippine Overseas Employment Administration (POEA) is to ensure that all overseas employment, including seafaring, is decent and humane and that it is done free of charge to the worker. The Act also contains a Bill of Rights for migrant workers, including seafarers, and guarantees repatriation in the event of the seafarer’s termination of employment due to a breach of the contract by the employer or in cases of war, national emergency, or when the seafarer’s life is in danger.
The most important national law for seafarers in recent years is the United States, which enacted the Coast Guard Authorization Act 2010. Section 811 of Title VIII of this Act is aimed at implementation of the 2006 MLC and aims to ensure that foreign-flag ships comply with MLC provisions when calling at US ports. Section 631 of the Italian Navigation Code mandates shipowners to provide a financial surety sum to ensure the repatriation of mariners. Requiring the shipowner to pay a certain amount for each seafarer, the surety is refunded when the sailor disembarks and only used in the event that the seafarer must be repatriated at the shipowner’s expense.
The most important level of legal protection for an individual occupies the nation state and the domestic legal system. Every government, both by itself and in collaboration with other states through international organizations, has a primary obligation to protect the rights of its own nationals, including seafarers.
3.4 Case Studies of Effective Legal Protection
Study of case in Australia and Canada
Australia and Canada are two countries that have notable legal systems to protect seafarers’ welfare during the pandemic. Australia, for instance, issues temporary exemptions from specific requirements under the Maritime Labour Convention, 2006 (MLC), which gives employers more flexibility in attending to their seafarers’ employment agreements. This reduces the employer’s financial burden to crews that are out of a job, as termination or suspension of contracts means the employer’s obligation to pay repatriation costs to their seafarers. Secondly, Australia requires employers to provide guarantees that any seafarers that are quarantined in a foreign port will continue to receive pay and entitlements during the quarantine, and that if contracts are terminated while in quarantine, the employer will pay for repatriation.
Similarly, Canada also provides an exemption from select requirements under the MLC 2006, by allowing employers more flexibility regarding their seafarers’ employment agreements, and extending the maximum period seafarers can serve on board to a maximum of 17 months. Canada also issues a Ministerial Declaration that allows a seafarer to continue serving on board beyond the maximum period without becoming non-compliant with the MLC 2006, the ship flag duration, or its seafarers’ employment agreement. This quits the anxiety of automatic contractual termination due to work duration limits and contractual repatriation costs to seafarers who wish to continue working during the pandemic.
4. Ensuring Fair Labor Practices and Crew Welfare
The International Maritime Organisation (IMO) has already urged governments to designate seafarers as key workers, giving them access to travel and facilitate crew changes, and create the necessary protocols for safe travel. Furthermore, shipowners under the Maritime Labour Convention, 2006 have an obligation to uphold seafarers’ employment agreements and ensure a safe working environment with continuous improvement of safety and health. In the current scenario, it is important that shipowners uphold their commitments and responsibilities to seafarers. It is crucial that both the ILO and IMO, along with other relevant international organisations, monitor current and future recruitment and employment practices to safeguard seafarers from exploitation and unfair treatment during these uncertain times. This may involve the collection and analysis of data regarding seafarer employment and living standards, which will enable these organisations to assess the implications of COVID-19 and implement the necessary measures to protect seafarers in the short and long term.
With the expectation that chartered ships and shipowners comply with worldwide and flag state legislation, fairly often seafarers have had to endure poor working conditions and lower than minimum wage payment. Exacerbated by the present crisis, with restrictions to crew changes and lack of access to legal or welfare services, seafarers are even more susceptible to potential exploitation. This is particularly troubling as there’s strong evidence of numerous seafarers being compelled to increase their current contracts at sea with no additional pay, whilst others are being taken off planned sea passage and laid off – in breach of their seafarers’ employment agreements. Indeed, the lack of economic opportunity on the part of the seafarers’ home states as a result of COVID-19 could lead to seafarers accepting lower working conditions and pay than usual.
4.1 Strengthening Regulatory Compliance
Strengthening regulatory compliance with labour standards is addressed in various international legal instruments. Recruitment and placement services are regulated by the ILO Private Employment Agencies Convention (No. 181) and the Recruitment and Placement of Seafarers Recommendation (No. 191). The Maritime Labour Convention, 2006 (MLC) is the “fourth pillar” of international maritime law. Drawing inspiration from the governance system established by the ILO, the MLC endeavors to be comprehensive in regulating seafarers’ living and working conditions. Whilst other instruments only bind signatory states to whom the provisions are addressed, the MLC has been designed with the objective of becoming a global legal instrument open to ratification by any state. Furthermore, the MLC has a unique system which aims to provide broad protection and cover to seafarers serving on ships in the international. National laws and regulations to implement the convention will not be comprehensive in addressing all issues and may not cover non-national seafarers or ships of a non-national flag. MLC Regulation 5.1.1 requires that member states have an effective enforcement mechanism providing for the issue of financial penalties applying to ship owners, operators, or masters who are in violation of the MLC. Financial penalties imposed should be dissuasive and sufficient to encourage compliance with the convention provisions. The effectiveness of these enforcement measures will need to be observed though it is a positive step in ensuring the upholding of seafarers’ rights and compliance with the MLC.
4.2 Enhancing Crew Accommodations and Facilities
During the global spread of COVID-19, travel restrictions and quarantine measures have significantly prolonged seafarers’ contracted time at sea, thereby delaying crew relief and complicating the repatriation process for many. Some seafarers have served on board for periods of over seventeen months, eleven months of which has been without a break. ISSA, ICS, ITS, and IMEC have therefore called on governments to designate professional seafarers and marine personnel as “key workers,” exempting them from travel restrictions applied to other travelers. This is in line with similar calls from aviation industry bodies to recognize air crew as key workers. Step 3 of the Roadmap, which allows for non-essential travel to resume and the opening of public spaces, should also be implemented for seafarers in order to remove the current legal barriers faced by many who do not hold the nationality of the flag state of their vessel and therefore risk being refused visas and transit to repatriate home. This needs to be supported by a collective effort across multilateral organizations and key stakeholders. Caring for seafarers at this time is an important demonstration of a government’s or shipowner’s commitment to best industry practice and decent work and will pay dividends once the maritime sector seeks to recruit at pre-COVID levels. This should be driven by social dialogue with a focus on the welfare of seafarers, involving their representative trade unions and/or employee representative. Compliance and oversight can be facilitated through social dialogue involving the shipowners and seafarers’ representative organizations.
4.3 Promoting Social Support and Mental Health Services
The overall goal of promoting social support and mental health services to seafarers can be seen as part of a wider cooperative approach to enhancing crew welfare. While a range of measures can be taken at the company level and under the provisions of the MLC, 2006 to improve conditions and ensure that seafarers are better placed to manage the stress and pressures of their work, there is a clear need for an overarching strategic approach to mental health that focuses on prevention. This involves minimizing the risk factors to seafarers’ mental health (e.g. stress, isolation, fatigue) and enhancing the factors that protect and promote good mental health. The global Covid-19 pandemic has created an environment in which seafarers face unprecedented levels of stress and concern for their future. The impact of inactivity, uncertainty around being able to return home, financial stress and concerns for family are likely to present significant mental health challenges for seafarers both during and after the pandemic. The proactive management of mental health for both those aboard ship and those at home will also be of significant importance for the retention of a competent workforce in the industry and the prevention of future mental injury claims. A strategic approach to mental health will require leadership within the industry and close cooperation between industry stakeholders and government to coordinate efforts and resources. It is therefore essential that the measures required to promote mental health among seafarers are identified and are clearly linked to sustainable outcomes.
The National Institute for Occupational Safety and Health (USA) identifies the prevention of mental disorders as a strategic goal that requires action on the part of employers to reduce work-related stress and provide support programs for at-risk workers. Steps taken at both the company level and through industry regulation will need to focus on the provision of mental health resources and creating an environment where mental health is not stigmatized.
At the company level, this will involve the incorporation of mental health considerations into the safety management systems required under the ISM Code. This is part of a wider recommendation for a more comprehensive and integrated approach to the promotion of health and wellbeing as outlined in the ICS/ITF Guidelines on the Provision of Mental Health Support for Seafarers. The ongoing provision of mental healthcare will become a necessary element of shipboard medical care and companies will need to have protocols in place for referral to onshore services. This will have implications for the type of medical training required for seafarers and company obligations to ensure repatriation and treatment ashore. A key factor in securing mental health services for seafarers will be the future changes to onboard medical standards and the possible inclusion of seafarer mental health and wellbeing in the MLC, 2006 as a specific area for enforcement.
