International Law of the Shipmaster

Dr John A; C; Cartner; Richard P; Fiske and Tara L; Leiter

Document

CHAPTER 13 LABOUR AND THE SHIPMASTER

“Six days thou shalt work and do all thou art able; the seventh thou shalt holystone1 the deck and pound the cable.” Nineteenth-century seaman’s play on words on a passage from the Holy Bible, Deuteronomy 53. § 13.0 Labour and the Shipmaster. Labour is relatable to the shipmaster in two ways. The first is training for the competence he must demonstrate and, conversely, the shipmaster’s training and evaluation of the competences of his crew. The second is the hiring, disciplining, conditions of work and discharging of crew members. Traditionally in Anglo-American law the master hired seamen under so-called Shipping Articles, a contract between each seaman and the master in manifest form. In the civil law a contract between either the owner and the seamen or the master and the seamen as the owner’s agent was the usual way. The trend today is to have seamen hired from crewing agencies who supply the labour for a fee and deal with the legal requirements of doing so under a contract for the service. In the alternative, unions or other collective bargaining entities supply seafarers under their contracts with owners. In most cases, the master makes the payrolls and performs other ministerial duties with labour administration. § 13.1 The STCW 75/98. The International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers 19782 was wholly revised by amendment in 1995. The overhaul was done to make it current, to limit vagueness of language and to assist with greater compliance than theretofore observed. Currently 153 states have adopted the STCW Convention.3 The STCW represents the first time IMO member states are required to provide detailed information directly to the IMO on their efforts to comply. The STCW 78/95 regulates the fitness, competence and certification of the master, officers and crew and special training, such as emergency medical and safety training, watchkeeping and radio communications, all directed at a worldwide uniform minimum competence for safe operation of vessels. § 13.1.1 The Master’s Role in STCW 75198 Enforcement. The master,4 in command, is responsible for the obligations of the Convention being given their full and complete effect.5 Each company owning or operating a ship provides the master with written instructions setting forth the company’s policies and procedures which are compliant with the Convention and by which newly hired seafarers are educated and trained on the equipment and operations of the ship. The policies and procedures include provisions allocating a reasonable period of time for each new seafarer to become familiar with the ship and its watchkeeping, safety, environmental protection and emergency arrangements and equipment. The master assigns a knowledgeable seafarer to a new hire to ensure that an opportunity is provided for essential information to be given to the seafarer in a language he understands. Companies provide introductory programmes to assist newly employed seafarers in familiarizing themselves with the procedures and equipment in their areas of responsibility. The master takes the necessary steps to implement company instructions including identifying new seafarers and providing them with an opportunity to become acquainted and to observe and to ask questions on the locations, controls and displays of the equipment they will be using and relevant to their duties. A new seafarer is observed and supervised for a suitable period of time by an appropriate person when there is doubt as to the seafarer’s familiarity with that with which he has been trained.6 § 13.2 Qualifications Required to Serve as a Master. In order for the master to be appointed and hired and serve, he must hold the appropriate certificate7 from the flag state. To be eligible for a certificate to serve as master,8 he must meet the requirements for an officer junior to the master and have served as such for a specified period of time, including service as chief mate.9 He also must have completed the required education, training and testing of competence10 for the class of vessel in which he serves. He is required to meet the medical standards of the Convention.11 There are other tonnage and time-based and age-based requirements for various waters of service for a watch officer.12, 13 However, should the flag state government consider the complete requirements of the Convention in a particular service or application to be either unreasonable or impracticable it may exempt the master from those parts of the requirements.14 § 13.2.1 Dispensations. In certain circumstances the flag state government may grant a dispensation permitting an otherwise unqualified seafarer to serve without the appropriate certificate.15 However, no government is to grant an otherwise unqualified seafarer a dispensation to serve as a master except under extraordinary circumstances and even then only for the shortest possible time.16 The legal position and authority of the master is not affected by any alternative certification which may take place.17 Where special training or qualifications are required, the master must complete any such training and fulfil any such qualifications to qualify for the appropriate certificate.18 § 13.2.2 Standards of Medical Fitness. In order for a master to remain qualified to serve he must meet the STCW standards of medical fitness and demonstrate continued professional competence every five years.19 § 13.2.3 Standards of Navigational Experience. Prior to appointment the master is advised of the ship’s handling characteristics and made familiar with all navigational and manoeuvering aids fitted in the ship.20 The master should possess sufficient experience and training before assuming command of a large ships or a ships having unusual manoeuvering and handling characteristics different from those he may have previously served upon.21 § 13.2.4 Navigational Safety. The flag state, in an effort to keep the master abreast of recent developments, is required to provide the master with the text of any of changes to national or international law regarding environment or the safety of life at sea.22 This is usually done in a circular announcement system.23 Prior to sailing, the master must ensure that the vessel’s route is planned through the use of the appropriate charts and publications.24 He is responsible for ensuring that safe navigational watch and adequate watchkeeping arrangements25 are maintained during voyage.26 He is to be aware of the effects of operational and accidental maritime events and take such precautions as necessary to prevent them from occurring.27 The master is also advised by the watch officer of inclement conditions and equipment malfunctions occurring aboard the vessel immediately upon his learning about them.28 § 13.2.5 Radio Equipment. The master has powers over the use of the ship’s radio equipment and station and sets the radio watch arrangements to conform with the appropriate radio regulations and SOLAS.29 He also ensures that the radio station is properly manned and that radio equipment and as required a reserve power source is fitted and maintained.30 § 13.2.6 Deck Watches in Port. In designing the deck watch arrangements of the vessel the master account for moorings, type of ship and character of the duties.31Should he consider it necessary, a qualified officer is placed in charge of a deck watch.32 § 13.2.7 Engineering Duties. In designing the engineering watch, the master ensures that adequate arrangements are to be made to maintain a safe watch while in port.33 § 13.2.8 Ship’s Supplies. The master is advised by the chief engineer in determining fuel, water, chemicals, expendables and other spares, tools, consumable supplies, and other necessities of the ship required for the voyage.34 § 13.2.9 Consequences of the Intervention of a Pilot. Should the ship take on a pilot, the master or officer in charge of the navigational watch is not relieved of duty and obligation to the ship.35 The master exchanges information and cooperates with the pilot on navigation, local conditions, and the ship’s characteristics.36 § 13.2.10 Disciplinary Liability Under STCW The master is disciplined by the company and flag state if he employs or allows to serve a person in a capacity for which he lacks certification, dispensation or other appropriate documentation.37 § 13.2.11 Training Duties. The master is responsible for providing a link between the shipboard training officer and the company training officer and takes the ship-side duty if the shipboard training officer is relieved on-board during the voyage. He ensures that all persons involved in training are effectively carrying out the mandated program.38 The master signs the training record book for each seafarer at the beginning, during, and at the end of each voyage.39 § 13.3 The International Labour Organisation (ILO) Conventions On Labour Conditions for Seafarers. The International Labour Organisation (ILO) was established in 1919 as part of the Treaty of Versailles and other peace treaties.40 The ILO was created on a vision that universal, lasting peace can only be accomplished where people worldwide can pursue decent work and achieve social justice.41 The ILO’s vision of decent work is one that sums up the aspirations of everyday people and is captured in a set of four strategic objectives.42 The ILO’s specific aims and objectives related to labour can be found in the Declaration of Philadelphia, appended to the ILO constitution.43 The ILO achieves its objectives through the promulgation of conventions and recommendations by the International Labour Conference.44 Conventions are designed to create binding legal obligations on ratifying states. The ILO has promulgated conventions regarding all categories of worker in general45 as well as conventions related to specific categories of worker, notably seafarers.46 Conventions relating to specific categories of worker are necessary due to the unique conditions of their work, and this is true for the work of seafarers. In all, 65 conventions relating specifically to the work of seafarers have been promulgated and are enforced as of 2006.47 These can be put into several categories, including general conventions, conventions regulating conditions and qualifications for employment, conventions regulating the safety and health of seafarers, and conventions regulating seafarers’ welfare and health care. § 13.4 The Maritime Labour Convention 2006. On 23 February 2006, during the 94th session of the International Maritime Conference, the ILO adopted the Maritime Labour Convention 2006. This Convention, which has been ratified by Bahamas, Liberia, Marshall Islands, Norway and Panama48 and will enter into force 12 months after 30 states representing one-third of the world’s gross tonnage have ratified. It was conceived as one of the four pillars of international maritime transportation law, along with SOLAS, MARPOL and STCW.49- 50 The Convention resembles an international maritime employment code with both civil and common law traditions guidelines.51 The new Convention’s purpose is to create a single, coherent instrument embodying the fundamental principles and current standards of existing labour conventions and recommendations. The Convention resembles in structure the IMO and STCW Conventions with three parts all linked together with Articles, Rules and a Code organised in two parts parts.52 The Code is articulated around five titles covering minimum requirements for seafarers to work on a ship, conditions of employment, accommodations, recreational facilities, food and catering, health protection, medical care, welfare and social security protection, and compliance and enforcement. One of the main innovations of the Convention is the institution of a maritime labour certificate certifying the working and living conditions of seafarers on the ship.53 The Convention mandates the states party to set up an efficient inspection system to ensure that the working conditions of seafarers remain in compliance with the Convention.54 Important innovations are for monthly payment of wages and repatriation. § 13.5 The Master and the ILO. The Convention provides that a written and definite engagement contract be given to every seafarer, including the master, that measures be taken to ensure that clear information as to the conditions of their employment can be easily obtained on board and that the information, including a copy of the seafarers’ employment agreement, is accessible for review by officers of a competent authority including those in ports to be visited (Standard A2.1(1) (d)). Pursuant to Guideline B2.2.1(l)(l)(d), records of all overtime worked are maintained by the master and endorsed by the seafarer at not greater than monthly intervals. The master endorses the records pertaining to overtime (Standard A2.3(12)), which must be limited to situations regarding the immediate safety of the ship, persons on board or cargo or for giving assistance to other ships or persons in distress (Standard A2.3(14)). The master has the responsibility to record and sign derogations to minimum age (Guideline B2.3.1(3)). The Convention requires the master to conduct frequent inspections on board ships and to ensure that seafarer accommodations are clean, decently habitable and maintained in a good state of repair. The results of each such inspection are recorded and available for review (Standard A3.1(18)). Similar inspections are conducted under the authority of the master in respect of supplies of food and drinking water; spaces and equipment used for the storage and handling of food and drinking water; and galley and other equipment for the preparation and service of meals (Standard A3.2 (7)). The master is given appropriate information regarding the implementation of and compliance with the ship’s occupational safety and health policy and programme (Standard A4.1(2)). § 13.6 The Currently Promulgated ILO Conventions. There is a large number of conventions which the ILO has promulgated. Many today are not enforced or are obsolete by the ILO’s assertions.55 At the same time many of these conventions have been ratified and are in force in flag states and are a part of many flag states’ laws. We review these conventions to that end. lists conventions in force in those states. These conventions for the most part have been consolidated into the 2006 Convention and will be made obsolete when that Convention goes into force.

(a) General Conventions. The Continuity of Employment (Seafarers) Convention 56 aims to promote continuous employment of seafarers and to provide shipowners with a stable workforce.57 Member states may accomplish this goal by, among other means, maintaining of a register or list of seafarers.58 This Convention provides additional regulations for states utilizing lists or registers as the sole means of promoting a stable workforce.59 Finally, in line with other conventions providing for seafarer welfare, this Convention requires member states to ensure appropriate safety, health, welfare, and vocational training provisions apply to seafarers.60 The Recruitment and Placement of Seafarers Convention61 regulates the means by which organisations in member states may recruit and place seafarers into employment on vessels. This Convention permits member states to provide a free public recruiting and placement service for seafarers.62 The Convention assures that seafarers may exercise basic human rights, including trade union rights.63 The Convention requires ratifying states to enact certain legislation regulating the operation of recruitment and placement services,64 as well as requiring recruitment and placement services to keep a register of all seafarers placed.65 The Seaman’s Articles of Agreement Convention66 regulates the contracts entered into between shipowners and seafarers. The Convention requires Articles of Agreement to be signed by both the seaman and the shipowner, and requires ratifying states to provide national laws ensuring reliability of contract.67 Each seaman is entitled to receive a document of record of work on the vessel.68 The Convention also provides for contract formalities,69 mechanisms for seamen to discern their rights and obligations under a contract,70 regulations related to contract termination,71 and other means of ensuring the reliability of contract and protection of contracting parties.72The Seafarer’s Identity Documents Convention regulates the issuance and contents of seafarer’s identity documents.73 It further requires and regulates the creation of an electronic database containing information related to seafarer’s identity documents.74 The Convention regulates quality control and evaluations for issuance of identity documents.75 Seafarers must keep possession of their identity documents at all times unless they consent in writing to permit the master to hold the identity documents in safekeeping.76 The Merchant Shipping (Minimum Standards) Convention requires each ratifying member nation to undertake measures to ensure that minimum (i) safety, (ii) social security, and (iii) shipboard conditions of employment and living conditions are maintained.77 The Convention provides for the availability of complaints procedures.78
(b) Conditions Relating to Qualifications and Conditions for Employment. The Certification of Able Seamen Convention79 delineates the basic guidelines for employment of an Able Seaman. The Convention requires that every person engaged on a vessel as an Able Seaman be deemed competent to perform any duty required of a crew and to hold a certificate of qualification granted in accordance with the provisions of the Convention.80 Among other qualifications, a person must be of minimum age and experience and pass an examination.81 With few exceptions, the minimum age shall be no less than eighteen years;82 the minimum period of service shall be no less than thirty-six months;83 and the examination must test the practical knowledge of seamanship and the ability to carry out effectively all required duties.84 The Officers’ Competency Certificates Convention85 places similar requirements on employment of masters and other officers. A master or other officer must possess a certificate showing competency to perform relevant duties.86 Like other seamen, the master must meet minimum age, experience and competency requirements.87 Vessels are subject to inspection for compliance with this Convention and to detention for violations of the Convention.88 The Certification of Ships’ Cooks Convention provides similar certification requirements for food preparation persons on board seagoing vessels.89 With respect to the minimum age requirement, the Minimum Age Convention permits each member state to set the minimum age.90 With certain exceptions,91 that minimum age shall be no less than fifteen years.92 The International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers,93 discussed above, provides additional regulations related to certification of seafarers. The Medical Examination (Seafarer’s) Convention provides that no person shall be engaged as a member of the crew of a vessel unless he produces a certificate, signed by a medical practitioner, attesting his fitness to conduct the work required of him.94 The Convention requires the certificate to attest (a) that the person’s vision, colour vision, and hearing are all satisfactory; and (b) that he is not suffering any disease that is likely to be aggravated by, or is likely to render him unfit for, service at sea or likely to endanger the health of other persons on board.95 The certificate shall be valid for two years, with the exception that the colour vision attestation shall be valid for six years.96 In urgent circumstances, a person may be engaged for a single voyage without a proper medical certificate.97 The Medical Examination of Young Persons (Sea) Convention places some additional requirements for health certificates for those seamen under the age of eighteen years.98 Like seamen in general, a person under the age of eighteen must obtain and provide a certificate attesting the fitness of the person to conduct his duties.99 A seaman under the age of eighteen, however, must recertify his fitness at intervals no greater than one year apart to continue engagement upon a vessel.100 Under urgent circumstances, a person under eighteen years of age may be engaged without a certificate so long as the person obtains a certificate of fitness at the first port of call during the voyage.101
(c) Conventions Regulating the Safety and Health of Seafarers. The Seafarers’ Hours of Work and the Manning of Ships Convention provides, among other regulations, the maximum number of hours per period a seafarer is permitted to work.102 Generally, hours are limited to a maximum of fourteen hours in any twenty-four hour period and 72 hours in any one week period; or a minimum rest of ten hours in any twenty-four hour period and 77 hours in any one-week period.103 In certain circumstances, the master may require seafarers to work hours in excess of the maximums provided by the Convention.104 A ship must maintain sufficient manning to ensure the safe operation of the ship and permit compliance with the Convention.105 The shipowner shall provide to the master sufficient resources to monitor and ensure compliance with the Convention, and the master shall take all reasonable steps to ensure such compliance.106 The Prevention of Accidents (Seafarers) Convention requires member nations to take measures to ensure that occupational accidents are adequately reported and investigated, and that comprehensive statistical records be kept and analyzed.107 Where regulations enacted by a ratifying member state so require, the master is responsible for carrying out duties related to the prevention of occupational accidents.108 Specifically, the master must appoint a suitable person or persons whose responsibility is prevention of accidents.109
(d) The Accommodation of Crews and Food and Catering Conventions. The Accommodation of Crews Convention110 and the Accommodation of Crews (Supplementary Provisions)111 provide certain regulations of the accommodations on vessels. The Convention mandates that every construction or alteration of a ship involving crew accommodations be approved by a competent authority.112 The Convention requires that the location, means of access, structure and arrangement of spaces in relation to other spaces of crew accommodation shall be such as to ensure adequate security, protection against weather and sea, and insulation from heat or cold, undue noise, or effluvia from other spaces.113 Among other accommodations, the Convention and Supplementary Provisions set out requirements for sleeping spaces,114 mess rooms,115 provisions of recreational facilities,116 provision of sanitation facilities,117 minimum headroom,118 and lighting.119 The master, or an officer deputed for the purpose by the master, shall inspect all crew accommodations at intervals of not more than one week and the results of such inspections shall be recorded.120 The Food and Catering (Ships’ Crews) Convention regulates the provision of food and water on board seagoing vessels.121 Sufficient quantity, nutritive value, quality and variety of food must be provided for the size the crew.122Arrangement and equipment of the catering department must be provided in such a manner as to permit service of proper meals to the crew.123 The master, together with a responsible member of the catering department shall, at designated intervals, inspect the food and water supply as well as storage spaces and equipment for storage and handling of food and water, the galley, and other equipment for the preparation and service of food and water.124 The results of such inspections shall be recorded.125
(e) Conventions Regulating Seafarers’ Welfare and Healthcare. The Seafarers Welfare Convention requires each ratifying member state to ensure adequate welfare facilities and services are provided for seafarers both in port and on board ship.126 The Convention prohibits provision of welfare facilities and services from being made on discriminatory bases.127 The Shipowner’s Liability (Sick and Injured Seamen) Convention imposes on shipowners liability for sickness, injury and death occurring during the seaman’s engagement on board a vessel.128The shipowner must pay medical expenses,129 defray medical costs,130 repatriation,131 and burial132 expenses, and ensure safekeeping of property left on board by sick, injured or deceased seamen.133 The Social Security (Seafarers) Convention requires ratifying member states to provide social security benefits with respect to at least three of the following branches of social security: (a) medical care; (b) sickness benefit; (c) unemployment benefit; (d) old-age benefit; (e) employment injury benefit; (f) family benefit; (g) maternity benefit; (h) invalidity benefit; and (i) survivor’s benefit.134 At least one out of branches (c), (d), (e), (h), and (i) must be provided.135 The Convention provides detailed regulations and requirements related to provision of each of the foregoing branches of social security.136 The Health Protection and Medical Care (Seafarers) Convention requires that each ratifying member state enact law or regulation creating responsibility in shipowners to maintain properly sanitary and hygienic conditions on their ships.137 This Convention further requires shipowners to provide adequate medical facilities on board their ships, with varying requirements based on the type and nature of the vessel.138 The Repatriation of Seafarers Convention (Revised) provides that seafarers be entitled to repatriation in a delineated set of circumstances.139 When the seafarer is entitled to repatriation, he may choose from the following destinations: place of agreement to enter into the engagement; place stipulated by collective or mutual agreement; place of residence.140 A ratifying member state shall prescribe destinations for repatriation which must include, but are not limited to, the foregoing.141 The Convention requires shipowners to pay for repatriation.142 The Unemployment Indemnity (Shipwreck) Convention provides that shipowners shall indemnify all seamen for all losses attributable to unemployment caused by any loss or foundering of a ship.143 The Seafarer’s Pensions Convention provides two pension schemes from which employers may choose to provide to seafarers.144 The Convention limits the contribution required of seafarers to half the financing of the pension scheme.145 The Seafarer’s Annual Leave with Pay Convention provides that for every year of continuous service, each seafarer is entitled to no less than thirty days of paid leave.146 Seafarers who complete less than a full year of service shall be entitled to a proportional period of leave.147 A seafarer shall be entitled to at least his usual remuneration.148 The Convention further regulates what days may count toward period of service and time on vacation;149 when a seafarer may take vacation;150 prohibits agreements to relinquish accrued paid vacation;151 and permits recall of seafarers on vacation only in cases of extreme emergency, with due notice.152

1 A flat white and soft sandstone stone with a hole in its center which, when a stick similar but longer than a broomstick is attached, can be pushed over a wooden deck to smooth it and get rid of oxidized and dark surficial wood. The work was painful to both back and hands. From “holey stone”. See de kerchove, 2d 376 (1961).

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