MLC and Abandoned Seafarers - The Theory and the Practice
Qualifying ships are required to have certification on board from a financial security provider which guarantees payment of up to four months’ wages, the costs of repatriation and the supply of essentials such as fuel, food and water to abandoned seafarers where necessary until the crew can go home.
The IG Clubs supported their Members by agreeing to provide the necessary certification for what are largely uninsured, non-P&I risks. But they did so against an understanding of how the Convention would work in practice which has, in some places, not been borne out.
This is resulting in significant delays in repatriation and payment of wages to some seafarers marooned on deteriorating ships, as well as issues for the insurers concerned. What’s gone wrong?
Regulation 2.5 of MLC deals with repatriation and its stated purpose is to “ensure that seafarers are able to return home”. Standard A 2.5 sets out the means to accomplish that and includes the following obligations on States Parties:
■ “Each [State] shall facilitate the repatriation of seafarers serving on ships which call
at its ports or pass through its territorial
or internal waters, as well as their replacement on board.”
■ “In particular, a [State] shall not refuse
the right of repatriation to any seafarer because of the financial circumstances of a shipowner or because of the shipowner’s inability or unwillingness to replace a seafarer.”
So when seafarers are abandoned (and in practice that’s invariably when they haven’t been paid for two months or more) and the ship arrives in a port of a contracting state, the local maritime authorities should take steps to facilitate the repatriation of those seafarers. That means bringing the ship alongside (to, say, a lay-up berth) and allowing the seafarers off as soon as is practicable.
The authorities can then take whatever action is necessary to recover their costs, including arrest and judicial sale of the ship.
The Clubs stand ready to assist with tickets home, wage payments of up to four months and any medical care for the abandoned crew. If there’s a need for any immediate supplies to the ship of fuel, water or food until repatriation can be arranged then they’ll be provided.
In many States this model has proven to work well and abandoned seafarers in these ports are repatriated quickly and efficiently. But in others it hasn’t, and it’s where States choose to ignore some or all of their obligations under MLC where the problem lies.
The practice in some States
Let’s look at what happens in those States. The ship arrives with an abandoned crew. The local maritime authority decide that they don’t want the risk or cost of a laid- up ship with no crew on board within the jurisdiction of their port so demand that she remains out at anchor with a skeleton crew. That immediately places the Master in the invidious position of deciding who goes home and who stays.
The authorities say that the only way all the original crew can all come off the ship is if they’re substituted by replacement crew. But the Convention doesn’t require the financial security provider to arrange replacement crew and doing so would in any event be tantamount to a hostage exchange – it’s surely no solution to put other people on board an abandoned and deteriorating ship.
More fundamentally however, the State concerned is quite clearly acting in breach of its Standard 2.5 obligations to facilitate the repatriation of abandoned crew irrespective of the “shipowner’s inability or unwillingness to replace a seafarer”.
The result in these cases is an impasse, with the abandoned crew stuck on board because no replacement crew can be arranged and the maritime authority is unwilling to allow them to go home without replacements.
Very sadly, in two recent cases West has been involved in this has seen abandoned crew remain on board deteriorating ships for 13 and 16 months respectively post-abandonment, and this is over and above their prior time on board. Sometimes these seafarers are on board for more than two years in total and often in poor and deteriorating conditions.
MLC is all about protecting abandoned seafarers and not dealing with abandoned ships
The financial security provider then has to provide fuel, food and water throughout this prolonged period of detention, and this unnecessary and often significant additional financial burden is creating a serious issue for insurers in light of the claims experience in some ports and regions.
What can be done?
The situation encountered in these ports when dealing with abandoned seafarers is clearly unacceptable.
As we’ve seen, allowing the MLC to malfunction in this way is causing additional stress and suffering for seafarers who have already been abandoned by their employer. It is contrary to the stated intention of Regulation 2.5 and undermines the objectives behind the introduction of the 2014 amendments to the Convention.
It’s been suggested in a recent paper to the IMO Legal Committee that the Convention should be amended again to make the financial security provider liable for providing replacement crew. But this isn’t a solution;
it merely perpetuates the problem by just placing a different set of people in the same degree of peril and ignores the practical difficulties an insurer, who naturally has no experience of making crewing arrangements, would have in sourcing a crew willing to go on board an abandoned ship – where flag and class may have been withdrawn – and sit out at anchor for an unknown and probably protracted period.
Following a recent particularly challenging case we’ve had at West with two ships abandoned in a particular port and seafarers marooned on board for over a year until we could get them home, we managed with the help of the International Group to build a broad coalition of industry partners and UN international agencies to bring pressure to bear on the maritime authority concerned in that case. However, despite the considerable efforts of this coalition, resolution was achieved only when the ships were sold to a new owner.
It is hoped that the Clubs can now work with the coalition to highlight this issue to all the MLC States Parties and emphasise that the solution doesn’t lie in replacement crew but rather in all States complying with their obligations if the goals of the Convention to protect abandoned seafarers are to be met. After all, MLC is all about protecting abandoned seafarers and not dealing with abandoned ships.