Proper enforcement of the Maritime Labour Convention 2006 (MLC) is the only way to ensure seafarers are repatriated home. Governments, and flag States, need to carry out their legislative obligations under MLC so that the crew change crisis is not exacerbated further, maritime experts say.
There are currently an estimated 200,000 seafarers globally stuck onboard, and more stuck at home waiting to join a vessel, due to global COVID-19 travel restrictions imposed by governments. However, there is no reason legislatively that crew change cannot happen. Standard A.2.5.1 – Repatriation in the MLC states that once a seafarer’s employment agreement expires onboard they are entitled to repatriation. Paragraph 5 specifies that should the ship owner fail to make arrangements or meet the cost of repatriation for the seafarer, the responsibility then falls to the flag State. Should the flag State fail in making the necessary arrangements, it is then the responsibility of the nation state in which the seafarer finds themselves or the nation state of the seafarer to carry out the repatriation. The cost of repatriation will then be recovered from the ship owner, according to the standard.
Dr. Cleopatra Doumbia-Henry, president, World Maritime University, who spearheaded work on the MLC at the ILO, commented to SAS that the main issue in the crew change crisis is the continued reluctance of many countries to enable seafarers to disembark in ports, to transit and transfer through airports, and to enable seafarers to return home after their tour of duty. She noted that many seafarers today come from the developing world and must go through multiple transit points in order to get home. “It is therefore critically important not only for flag States and shipowners to assume their responsibility with respect to repatriation, but also for countries to enable seafarers to transit and transfer through their ports and airports to enable them to return home after their long tour of duty,” she said.
COVID-19 has undoubtedly created unprecedented challenges for shipping and governments to follow MLC regulations. As such, the International Labour Organisation (ILO) released guidance on 10 July which outlined the extensions and exemptions to MLC requirements, to tackle the impact COVID-19 was having on the shipping industry. However, the guidance states that while authorities are encouraged to be pragmatic in their approach during these exceptional circumstances, they should ensure that the pandemic is not used as an excuse to breach MLC.
According to Natalie Shaw, director of employment affairs, International Chamber of Shipping (ICS), the guidance provides the argument of force majeure, (where unforeseeable circumstances prevent actors from fulfilling their contractual obligations), which effectively enables flag States and governments who are experiencing the current challenges and temporarily not having to fulfil their responsibilities under the MLC.
However, the notion of force majeure no longer applies the moment an option is available to comply with MLC; for example, the availability of flights or transport options for crew. As the guidance states, “circumstances rendering performance more difficult or burdensome do not constitute a case of force majeure”. The guidance even encourages governments to limit contract extensions only to cover the time it takes for the crew to reach the next port, and should even consider diverting a ship to a port where crew changes can be carried out.
According to the MLC regulations and ILO guidance, crew changes amid COVID-19 can be carried out and also be enforced. Precedence was set in Australia, where port state control (PSC) enforcement of MLC led to crew change. PSC officers stopped container vessel, Conti Stockholm, on 6 August, as three crew contracts expired on arrival in the port of Fremantle. Once the ship management company provided proof that the needed crew change would be carried out in the following Port of Brisbane, the vessel was released. The International Transport Workers’ Federation also reported successful incidents of MLC enforcement by PSC in Brazil and Panama, which resulted in crew change. Furthermore, InterManager maintain a Maritime Champions Club, detailing where successful crew changes are being carried out, with the aim of spurring on more companies into action.
Yet, according to maritime experts, certain governments are failing seafarers in their lack of enforcement of MLC and are not providing the necessary tools to allow for easy repatriation. Matt Turner, AFNI, a former Paris MoU PSC Officer (UK), stated that the lack of enforcement of MLC is “an international embarrassment”, as it was once heralded as the landmark convention for seafarers’ rights.
Bulk carrier, Unison Jasper, was detained in Australia on 30 July for MLC breaches including non-payment of crew wages and not having repatriation plans in place for off and on-signing crew. The vessel was subsequently banned for six months from Australian waters and set sail on 29 August once replacement crew arrived. The 11 off-signing Burmese crew, who had been onboard for more than 14 months, are still awaiting repatriation after undergoing a 14-day quarantine in Sydney. The Australian government appears to be unable to carry out their repatriation obligations under MLC due to the differing requirements of the Australian states. “The State/Federal situation/relationship in Australia is quite complex. At national level there has been a complete failure to harmonise requirements and make them pragmatic and practical,” said Theresa Lloyd, CEO, Maritime Industry Australia. “The failures and difficulties occur at every touch point for a crew change – lack of flights, government imposed limits on inbound passengers, complex and often slow visa processes, limited quarantine facilities, draconian measures that severely limit the movement of seafarers, ignoring time spent at sea for any quarantine periods, and so on”.
Meanwhile, Liberian Flag representative told SAS that despite calls on behalf of the shipping industry for governments to designate seafarers as “key workers” and provide free and easy access to ports and services, this access has not materialised. The hesitation to do so is partly due to fears of seafarers infecting the local populations, said the representative.
Shaw agreed with this analysis and explained that certain seafarer supply nations, such as the Philippines, are also prioritising their limited flights for other service workers. While officially the Philippines considers all overseas workers as of equal priority for repatriation, Shaw alluded to the perception that domestic workers, who may have lost their accommodation and livelihood, are considered more vulnerable compared to seafarers who they believe may be onboard with food and lodging.
Kuba Szymanski, secretary general, InterManager, highlighted Singapore’s recommendation which only allows for off-signing crew from Singapore flagged vessels to be repatriated. “How can this be considered crew change?” Szymanski told SAS. “How can you take [a] ship master off the ship without signing on his relief”.
As a solution to the crew change crisis the Liberian Flag registry advised that governments remove obstacles to crew change and establish air corridors and lift visa restrictions. However, governments have limited time to step up as Turner predicts there will be a continued rise in MLC enforcement, which may have dramatic consequences on trade. “I’ll wager we will soon start to see PSC authorities coming out of hibernation in September and taking a more convention-centric approach and filling the compliance void that has been allowed to continue for far too long,” he concluded.