By Avani Khatri
Without those who work at sea, “half the world would freeze and the other half starve.”[1] This axiom holds true, especially in the present age when the maritime shipping industry has become the cornerstone of international trade and economy. With approximately 11 billion tons of goods carried around the world every year, transportation via sea route accounts for 80 percent of the total international business.[2] To a layman, the magnitude of such a vastly globalized sector is incomprehensible. The credit for attaining such monumental success needs to be attributed to the heroes who work behind the scenes i.e., the seafarers.
Since the days of antiquity, seafaring has always been a laborious and taxing profession. The employees are constantly exposed to the hazards of working in the nerve-wracking ambiance of the sea. Cut off from their family and community, they spend a considerable portion of their lives toiling in dingy and isolated vessels. Coupled with this is the factor of vulnerability to bullying, harassment, non-payment of wages, and exploitation by employers. Fishers, in particular, are also subject to the potential risk of falling prey to abduction and human trafficking. Furthermore, extreme weather conditions, lack of nutritious food, the threat of piracy, insufficient rest hours, the problem of repatriation to flag state, and implications brought in by force majeure events like wars and pandemics perturb the seafarers.
“In the statement issued on 28 February, the International Labour Organization (ILO), the International Maritime Organization (IMO), the United Nations Conference on Trade and Development (UNCTAD) and the World Health Organization (WHO) claim that new challenges and variants of concern like Omicron threaten to worsen the plight of the world’s seafarers, who play a vital role in global trade.”[3] To exacerbate the situation, the recent humanitarian crisis in Ukraine also sent shockwaves to the global supply chains thereby resulting in a violation of seafarers’ human rights. According to an estimate released by Human Rights at Sea in April, nearly 1500 seafarers were stuck in the Black Sea, away from their families, struggling to sustain themselves on meagre provisions with their lives at stake.[4]
Historically, the Law has always come to the rescue of grieved seafarers. The Courts have recognized the ardent need for legal protection of seafarers’ rights and interests. However, the safeguard mechanism goes much beyond the legal assistance rendered by the courts. “The beginning of a new century heralded a paradigm shift in the legal protection of seafarers as the legal focus swung towards the living and working conditions of seafarers.” [5] The Maritime Labour Convention, 2006 alternatively known as the Seafarers’ Bill of Rights was adopted at the 94th session of the International Labour Conference held on 23rd February 2006 in Geneva, Switzerland. In effect from 20th August 2013, it is a widely acclaimed “comprehensive global legal instrument”[6] aimed at improving the general framework of “maritime labour standards for the ship owners, seafarers, and maritime nations.” [7]
According to a FAQ report published by the International Labour Standard Department in 2006, the two primary objectives of the MLC, 2006 are: — (i) “to ensure comprehensive worldwide protection of the rights of seafarers ; (ii) to establish a level playing field for countries and shipowners committed to providing decent working and living conditions for seafarers, protecting them from unfair competition on the part of substandard ships.” [8]
MLC 2006 has replaced 37 previously existing maritime labor protocols and consolidated their provisions under one single umbrella convention. Such consolidation was deemed necessary to bring uniformity and denounce the irrelevant provisions of the outdated conventions, for instance, the Minimum Age (Trimmers and Stokers) Convention, 1921. On top of that, it was an arduous task for the governments of all nations to ratify each excessively detailed convention and implement it nation-wide. Thus, MLC 2006 is designed to increase the levels of ratification by ILO members and make the labour standards more relevant to the contemporary needs of the stakeholders in the maritime sector.
It is structured into three segments : (i) 16 articles containing broad principles and general obligations; (ii) The Code which consists of 5 titles:
- Title 1: Minimum requirements for seafarers to work on a ship
- Title 2: Conditions of Employment
- Title 3: Accommodation, recreational facilities, food and catering
- Title 4: Health protection, medical care, welfare, and social security protection
- Title 5: Compliance and enforcement
iii) Regulations for each title, which are grouped into two lists: List A and List B. The former includes mandatory Standards and the latter contains guidelines. If the member state decides to implement the principles laid down in the convention in a different manner from that prescribed in List A, it will be considered “substantially equivalent only if that member satisfies itself”[9] that the relevant legislation is capable of achieving the general object of the provisions listed in Part A of the Code.
After being acquainted with the need, background, and the main essence of the convention, let’s gauge the scale of its success in the aftermath of its enforcement. It is a well-established fact that the efficacy of any policy, legislation, treaty, convention, or any form of human welfare arrangement are directly dependent upon its fruitfulness in terms of implementation. A noteworthy observation in this regard is that in April 2022, MLC 2006 reached a milestone of 100 signatories with Oman becoming the latest nation to ratify the convention. Owing to this move, the world’s gross shipping tonnage under the ambit of MLC, 2006 has taken a quantum leap to 96 percent. [10]
In the face of the constantly changing international power and trade relations, such landmark achievements ought to pose certain questions to any prudent person: What has been the impact of MLC on the lives of the “1.89 million seafarers operating over 74,000 vessels”[11] around the globe? Has it been favorable or detrimental to their interests? Has the Port State Control (PSC) inspection mechanism yielded the desirable results? Does MLC 2006 deserve to be called the fourth pillar of international maritime law? What are the loopholes in the convention and the suggestions that can be complied with to enhance its competency?
The first major concern for the seafarers relates to the issue of medical fitness which has been prescribed as a minimum requirement for the workers to start working onboard. The ratified nations are obligated to furnish a medical certificate for their seafarers with a validity of 2 years. However, the crux of the problem is that a certificate sent out by one country is not admissible in another country when the seafarer shifts from one company to another. “For example, a medical certificate issued to an Indian seafarer in Malaysia as per STCW[12] guidelines is not accepted while joining another shipping company in the UAE, whose recruitment placement service provider in India needs an Indian directorate general of shipping approved medical certificate to be uploaded to the DGS website.”[13]
Secondly, the convention requires the seafarers to be well-equipped with knowledge and training in their respective areas of work. Basic safety skills are cardinal in maintaining their well-being during life-jeopardizing circumstances. However, owing to “high fees of approved courses or just the ease of processing, and saving time”[14], the seafarers preferably opt to apply to the flag of convenience[15] for documents, which is a matter of alarming concern. The intermediary agents issue fabricated certificates without imparting any sort of training. This loophole allows the agents to fill their coffers by securing hefty amounts from the seafarers under the pretext of providing them with the requisite documents. The naive and gullible seafarers eventually succumb to the manipulation tactics employed by the agents.
Thirdly, it would not be unreasonable to assert that the work and rest hours provision stipulated in the convention has doubled the paperwork of the crew onboard. Inter alia, there has been no substantial amelioration in the working standards of the employees. A valid reason behind this assertion goes along the following lines: On an average-sized ship operated by a finite number of crew members, emergencies come up daily. This in turn leads to a copious amount of work for the crew at unexpected times, thereby reducing the rest and leisure hours. In a survey conducted by Simkuva H. among 340 navigational officers in 2016, only 1 % of the respondents claimed that no contravention related to work and rest hours was faced by them. Moreover, almost one-third of them admitted to having distorted their rest hour records on their master’s command, just before the PCS inspection to avoid non-compliance to MLC,2006. [16]
Apart from the above-mentioned grievances, many critics have argued that the convention has done injustice to the seafarers’ rights by placing the more important concerns such as shore leave, resting hours, and cabin size in the guidelines i.e., List B of the convention. Furthermore, other issues like air conditioning and constituents of nutritious food have not been addressed at all. Inadequate or pending salary; and complete non-payment of wages at times is another predicament faced by the seafarers. Nearly 1500 vessels lodge complaints every year about their employer not being in a situation to compensate their pending salaries as per the data on the ITF website.[17]
As far as the food provisions are concerned, the statistics are not so bright either. As per research conducted on the workers’ living conditions on cargo ships between 2011-16, only 56% of the crew were found to be satisfied with the food quality[18], which is considerably little bearing in mind that MLC, 2006 was enforced in 2013.
The foregoing criticism of the MLC, 2006 might give an impression that the convention did not materially change life at sea at all. Bringing forth its drawbacks into the limelight does not, in any way imply that the convention does not have its share of advantageous impacts. It is serving as a watch-eye on the conditions of seafarers. Earlier, the shipping companies had not laid down proper shore leave procedures. However, now verifiable compliance with minimum employment and social requirements including a provision for shore leave is necessary for the shipowners. The PCS inspection mechanism is also an intelligent tool that has improved supervision at all levels: the ship, the company, the flag state, the port state, and the ILO. It allows countries to inspect the ships arriving at their ports to ensure that the regulations are adhered to. Another major advantage of this convention is its worldwide applicability. Although it has not been ratified globally, MLC,2006 has a far-reaching impact because the vessels from non-signatory states that attempt to enter the ports of signatory states may face arrest and penalties for non-compliance with the MLC. The “no more favorable treatment” principle has been put into place for non-signatory states. There is quite potential to reduce the instances of non-payment of wages by employers as the seafarers are better informed about their rights.
To conclude, it is an undeniable fact that the Maritime Labour Convention is an important milestone in the arena of Labour Rights. It has definitely improved social dialogue at different levels and created a secure and responsible workforce to an extent. Having permanently addressed the maritime labour situation, it heralds a positive impact on the seafarers’ plight as well as the safety of the sea environment. However, there is still a long way to go as far as the implementation of welfare provisions is concerned. “We would like to see greater clarity within the convention to define welfare not just as bricks and mortar facilities, but to include access to professional providers of welfare – such as chaplains, counsellors, and support workers to ensure seafarers have the support and protection they need and deserve,”[19] says Ben Bailey, Director of Advocacy and Regional Engagement at The Mission to Seafarers. The need for improvement in execution has been especially highlighted in Covid-19 times. The convention must lay down rules of travel, transit, and border exemptions for seafarers in such unforeseeable circumstances. Reforms should also be introduced in the medical care protocols. A common international format and recognition of medical professionals must be created to issue globally acceptable health certificates.
After 10 years of its adoption, it would be apt to say that the convention is perhaps the best one that has been introduced in the maritime sector. But if the implementation is not undertaken properly, it will not take too long for the credibility of the convention to go downhill. To do justice to the expectations of the seafaring community and maintain the reputation of the maritime industry, it is the need of the hour to provide stronger guidelines for implementation and their strict upholding by the member states.
[1] Efthimios Mitropoulos, Putting the seafarers first, 29-31( ITF Seafarers’ Bulletin).
[2] United Nations Conference on Trade and Development, Report on Review of Maritime Transport 2020 (12 Nov, 2020).
[3] IMO, ILO, UNCTAD, WHO Outline Critical Actions to End Seafarers Crisis” Marine and Economy, Feb. 28, 2022. available at https://marineandeconomy.com/2022/02/28/imo-ilo-unctad-who-outline-critical-actions-to-end-seafarers-crisis/ (last visited May 15, 2022).
[4] Emma Foley, “ War in Ukraine: Seafarers suffering human rights violations need our continued support” Global Maritime Forum, Apr.25, 2022. available at https://www.globalmaritimeforum.org/news/war-in-ukraine-seafarers-suffering-human-rights-violations-need-our-continued-support (last visited May 15, 2022).
[5] Luci Carey, “ The Maritime Labour Convention, 2006: The Seafarer and the Fisher” 31 ANZ Mar LJ (2017).
[6] P.V. Sasikumar, ” Maritime Labour Convention, 2006- Its Importance and Impact on the Shipping Industry” AMET Maritime Journal (July-December 2017).
[7] Ibid.
[8] International Labour Organisation, “Maritime Labour Convention, 2006. Frequently asked questions.” Revised Edition, 2012, p.3, available at https://www.ilo.org/global/standards/maritime-labour-convention/lang–en/index.htm (last visited May 15, 2022).
[9] Id. at p.7
[10] “Oman 100th state to ratify the Maritime Labour Convention” Sea trade Maritime News, Apr. 12, 2022, available at https://www.seatrade-maritime.com/regulation/oman-100th-state-ratify-maritime-labour-convention (Last visited May 15, 2022)
[11] BIMCO and International Chamber of Shipping (ICS), Seafarer Workforce Report 2021 (July 2021)
[12]the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers(STCW, 1978 lays down the basic requirements for training, and minimum qualification standards for masters, officers and watch personnel on seagoing merchant ships and yachts.
[13] Deepak Mantoju, “Analysis of the impact of the Maritime Labour Convention 2006: A seafarers’ perspective” Journal of International Maritime Safety, Environmental Affairs, and Shipping, Vol 5., No.3 (2021)
[14] Id. at p. 112
[15] Flag of convenience: A business practice pursued by shipowners in which they register the ships under the flagship of a nation other than theirs to circumvent financial charges and restrictive regulations.
[16] H. Simkuva, A. Purnis, S. Mihailova, and I.J. Mihailovs, “Optimization of work and rest hours for navigation officers on the ship” SHS Web of Conf., 30, 00004 (2016)
[17] Non-payment of wages available at https://www.itfseafarers.org/en/your-rights/non-payment-wages
[18] H. Sampson, N. Ellis, I. Acejo, N. Turgo, L.Tang, “The working and living conditions of seafarers on cargo ships in the period 2011-2016,” Seafarers International Research Centre, 2018
[19] Jason Jiang, “What changes would you like to make to the Maritime Labour Convention?” Splash247, Sept.23, 2020, available at https://splash247.com/what-changes-would-you-like-to-see-the-maritime-labour-convention/ (last visited on May 15, 2022)
Centre for Maritime Law 