Who is Responsible for Seafarers Stranded by the Pandemic?

Who is Responsible for Seafarers Stranded by the Pandemic?
Chevanev Charles 04-29-2020 https://www.maritime-executive.com/editorials/who-is-responsible-for-sea...

There is a saying that goes that "without seafarers, half the world would starve while the other half would freeze." The shipping industry would grind to a halt without seafarers, and their contribution to their countries is a key factor in economic development. Hundreds of thousands of seafarers are currently stranded on ships and cannot disembark because of lockdown policies. The novel COVID-19 coronavirus has caused many nations to close their borders, leaving the welfare of seafarers in question.

Many seafarers go to sea for many months at a time, but with the change that this pandemic brings, there is a legitimate cause for concern. The emotional, financial, and psychological well-being of seafarers onboard ships that are currently caught between a rock and a hard place is a tremendous ordeal.

This problem has sparked a lot of debate over who bears responsibility for the return or repatriation of seafarers. Should governments cover the cost of repatriation? Should the shipowner? Or should the seafarer be left to be responsible for themselves? International law provides an answer.

To answer this question of responsibility, we must first proceed with the understanding that it is the law of the country where the ship is registered or “flagged” that applies to the ship. This means, for example, that if the ship is flagged in the Bahamas or the United Kingdom, then it matters what law the Bahamian or UK authorities choose to apply to their registered ship. It also matters where the ship is moored or docked, as the ship must abide by the laws of that state once it is within its jurisdiction or applicable maritime zone.

The International Labour Organisation has considered the holistic wellbeing of seafarers and in response, has amalgamated several conventions to construct the international convention called the “Maritime Labour Convention 2006, as amended.” This “super” convention outlines the rights, responsibilities, and obligations of several actors including shipowners, seafarers, the flag state, the port state, and a seafarer national’s home state. There are currently over 90 member states that are party to the convention.

Many countries that are a party to this convention have incorporated its text into their national legislation. The “MLC 2006” has regulations, standards, and guidelines that are enforceable concerning its member states. When a country incorporates an international convention, it may make reservations or “caveats” to change how parts of the convention should apply to that country.

Of particular relevance to this question of responsibility is Title 2: Conditions of Employment, Regulation 2.5: Repatriation (see page 35). The purpose of this regulation is to clearly outline the obligations and responsibilities of the member states and shipowners regarding the repatriation of seafarers. The intent is to ensure that the seafarers return home safely.

Seafarers' right to be repatriated

According to Regulation 2.5(1), seafarers have a right to be repatriated at no cost to themselves. This means that not only are seafarers entitled to repatriation but requesting seafarers to contribute to their repatriation costs will be against international obligations of this code unless through reservation national law of a particular country articulates another scenario. In the general understanding of the MLC, except where the seafarer breaches the employment agreement, the position regarding repatriation is that seafarers should not directly or indirectly be required to pay for the cost of repatriation. (Regulation 2.5 (3), (5)(c))

Each member of the MLC must require its registered ships to provide “precise” financial security, in other words, clear insurance provisions detailing the entitlements of seafarers if they qualify to come home. (Reg 2.5(2)(4))

Should a seafarer find his or her contract to include terms that are contrary to these provisions, it is highly recommended that an MLC complaint is made when he or she goes ashore (or contact the ITF here).

Who has primary responsibility?

The primary responsibility of repatriating a seafarer is on the shipowner and not the government of the seafarer’s home state. There are circumstances where a shipowner is unable or refuses to repatriate seafarers, and the MLC places the second responsibility on the flag state of the ship.

Where the shipowner and the flag state fail to make arrangements or meet the cost of repatriation, then the port state or the seafarer national’s home state may step in. Under Regulation 2.5(5), where the port state or home state who is a member of the MLC covers the cost of repatriation, they are entitled to recover the cost from the “Member whose flag the ship flies.” This means that the seafarer national’s home state, provided they are a party to the convention may bring suit against or otherwise obtain the cost of repatriation from the flag state of the ship. The flag state will recover the cost of repatriation from the shipowner, which may be a faster method of getting home for stranded seafarers. (Regulation 2.5(5))

Long-term relationships

Many shipping sectors around the world are significantly affected as ports are closed, and many cannot proceed to sea. The shipping sector has been hit its hardest perhaps in modern history. This current crisis means that insurance premiums are likely to be significantly elevated for the future as there will be many claims for repatriation. In some cases, some insurance companies may not pay out, dependent on the insurance provisions, because of the novelty of this crisis.

Despite it not being their primary responsibility, some home state governments, like the Philippines, are taking a “softer approach” and have assisted the shipping industry through chartered ships and flights for their seafarer nationals who wish to return home. Many countries are taking this softer approach towards shipowners because they value the long-term relationship. Shipowners have taken a serious financial hit but it is unlikely that this is fatal to the industry. Countries that take the softer approach will likely benefit when the pandemic is brought under control. Many countries depend on the shipping industry to employ their seafarers, who in turn send back remittances and support the development of those countries.

Ultimately, playing the blame game serves no purpose. Repatriation is a complex matter and many countries are negotiating novel repatriation packages. This pandemic is unprecedented and our primary concern should be the well-being of the seafarers. We should work together to find creative and cost-effective solutions to bring them home safely. Governments that are prioritizing their seafarers’ needs and negotiating on their behalf should be applauded. Seafarers need our support and they deserve it because these men and women sacrifice so much to maintain the shipping industry and have prevented, in many ways, "half of us from starving and the other half from freezing."

Chevanev Charles is a graduate of the International Maritime Law Institute in Malta. He is a practicing lawyer and consultant who specializes in international maritime law. He may be reached at [email protected].