The protection of Seafarers: State Practice and the emerging new International regime

State Practice and International Law Journal

About SPILJ

“The foremost companion for judges, diplomats, legal practitioners, academics and students on all aspects of public and private international law, SPILJ documents, analyses and evaluates State practice for compliance with international legal standards, and reviews the status of customary international law under the light of emergent, continuing and long-standing State practice.”

EditorsProfessor Benedict Chigara, London, UK (Chair)

Professor J. Patrick Kelly, Delaware, USA

Professor Annika Rudman, Stellenbosch, RSA

SPILJ2 / 2015Volume 2 Issue 1 pp. 1 – 82 Spring 2015

State Practice and International Law Journal (SPILJ) Editors: Professor Ben Chigara, Professor of Law, Brunel University, London, UK Professor J. Patrick Kelly, Professor of Law, Widener Law, Delaware, USA Professor Annika Rudman, Professor of Law, Stellenbosch University, RSA

Email: [email protected]

Editorial Assistants: Michael O’Sullivan, Barrister at Law, London, UK Dr. Akalemwa Ngenda, Lecturer in Law, Brunel University, London, UK Kinfe M. Yilma, Chevening Scholar and Graduate Student at Brunel Law School, Brunel University London

Book Review Editor: Dr. Khanyisela Moyo, Lecturer, Transitional Justice Institute, Ulster University, UK

International Advisory Board: Justice Sir, Christopher Greenwood, Judge of the International Court of Justice, The Hague Justice Abdul G. Koroma, Judge of the International Court of Justice, The Hague Justice Daniel David Ntanda Nsereko, Special Tribunal for Lebanon, The Hague Justice Tafsir Malick Ndiaye, International Tribunal for the Law of the Sea, Hamburg, Germany Professor Thilo Marauhn, Professor of International Law, University of Giessen, Germany Professor David Freestone, Formerly of the World Bank, The George Washington University, USA Professor Sarah Joseph, Professor of Human Rights, Monash University, Australia Professor Yuji Iwasawa, Faculty of Law, University of Tokyo, Japana Professor Mary Footer, Professor of International Economic Law, Nottingham University, UK Professor Christoff Heinz, Professor of Human Rights, Faculty of Law, University of Pretoria, RSA Professor Malcolm Evans, Professor of Law, Faculty of Law, Bristol University, UK Professor Tiya Maluwa, Director, Penn State School of International Affairs, Pennsylvania, USA Professor Michelo Hansungule, International Commission of Jurists & University of Pretoria, RSA Professor Nigel White, Professor of International Law, Law School, Nottingham University, UK Professor Abimbola Olowofoyeku, Professor of Public Law, Brunel University, London, UK Professor Evance Kalula, IAPO, University of Cape Town, Republic of South Africa Dr. Edwini Kessie, Chief Trade Adviser (CTA) for Pacific Islands Countries - on leave from Council and Trade Negotiations Committee Division, WTO, Switzerland

Editorial Board: Professor Dino Kritsiotis, Professor of Law, Law School, Nottingham University, UK Professor Manisuli Ssenyonjo, Professor of International Law and Human Rights, Brunel University Professor Neil Boister, Professor of Law, Faculty of Law, Christchurch, New Zealand Professor Lindsay Moir, Professor of Law, Hull University, UK Professor Richard Frimpong Oppong, Professor of Law, Thompson Rivers University, Canada Professor Guimei Bai, Professor of International Law, Peking University, China Professor Holger Sutschet, Professor of Law, University of Applied Sciences Osnabrück, Germany Professor Michael Hahn, Professor of Law, University of Lusanne, Switzerland Professor Tadashi Mori, Faculty of Law, University of Tokyo, Japan Professor Jann Kleffner, Professor of International Law, National Defence College, Sweden Professor Yan Ling, Faculty of International Law, China University of Political Science and Law, China Professor Ignacio Forcada Barona, University of Castilla-La Mancha, Toledo, Spain Professor Susan Breau, Professor of Law, University of Reading, UK Professor Frans Vil Joen, Professor of Human Rights, Faculty of Law, University of Pretoria, RSA Professor Duncan French, Professor of Law, Lincoln Law School, University of Lincoln, UK Professor Max Guderzo, Professor of History, University of Florence, Italy Professor A.V. Jose, Fellow - Centre for Development Studies, Trivandrum, Kerala, India

mailto:[email protected]

http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/Chambers/The+Judges/The+Judges/Judge+Daniel+David+Ntanda+Nsereko/Judge+Daniel+David+Ntanda+Nsereko.htm

Professor Tomoya Obokata, Professor of International Law and Human Rights, Keele University, UK Dr. Sven Simon, Assistant Professor, Faculty of Law, Free University of Berlin, Germany

State Practice & International Law Journal (SPILJ)

Volume 2 Number 1 Spring 2015

ARTICLES:

‘Africanizing Bilateral Investment Treaties (BITS): Some Case Studies and Future Prospects of a pro-active African Approach to International Investment’ FRANCESCO SEATZU & PAOLO VARIU 1

‘Egyptian Political Transformations: Mubarak to the Military, the People and Morsi and Morsi to the Military and the People? – Transforming International Recognition of States and Governments?’ MOHAMMAD M. HEDAYATI-KAKHKI 23

‘The Protection of Seafarers: State Practice and the Emerging New International Regime’ FRANCISCO PINIELLA; JOSE MARIA SILOS; & FRANCISCA BERNAL 43

DIGEST OF INTERNATIONAL LAW:

‘Revitalizing the ICCPR Regime: Some Reflections on Recent Developments’ KINFE MICHEAL YILMA 71

BOOK REVIEWS:

Ligeti Katalin (ed 2013), Toward a Prosecutor For the European Union, Hart Publishing - Matthew Nwankwo Chidebe 81

Piniella, et al. Seafarers Protection SPILJ Vol.2 No.1 (2015) 43-67

State Practice & International Law Journal (SPILJ) Vol.2 No.1 Page 43

‘The protection of Seafarers: State Practice and the emerging new International regime’

Francisco Piniella,* José María Silos* and Francisca Bernal**

Abstract

This article synthesizes the work done by its authors, in recent years, regarding the study and analysis of the conditions of life and work of seafarers on board ship. A historical picture is given of the social specificities of the occupation and of life at sea up to the Industrial Revolution. An analysis is then made of the establishment by States of a maritime regulation regime on topics like the structural safety of vessels and the minimum levels of training required for the various job responsibilities of personnel on board. Next the recent past and the present situation is reviewed in respect of the contracting of crews in a globalized profession, and the problems associated with the Open Registries, leading into a wider consideration of the future scenario for the world’s seafarers made possible by the new International Maritime Labour Convention, which has come into force on 20 August 2013. A necessary part of this scenario is the particular problem of the strict regulations imposed in the area of maritime security and protection following the terrorist attacks of 9-11 in the USA. Finally the implementation of the measures agreed for employee protection is considered in the light of the maritime responsibilities of both Flag States and the port/coastal States signatories to the various regional Port State Control agreements now in force.

Keywords: State Practice; Maritime; Seafarers; Flags of convenience; Port State Control; ILO; IMO

Introduction

Our aim in the present article is to synthesise several earlier studies made by our research group on the protection of seafarers, employees in an industry strongly influenced by the phenomenon of globalization, as a basis for discussing the regulation of maritime work –labour standards and the health and safety of seafarers– and the problems of regulatory design which to date have been limiting the effectiveness of international agreements negotiated for these purposes.

The overarching thesis of this article, reflected in its structure, is as follows: we present first a brief historical picture of the ‘Man of the Sea’ (even today, the job of the seawoman is still only a theoretical concept) and the grim realities of an occupation in which men were condemned to almost unimaginably hard conditions of work and of life. Major changes took place when we reached the era of the Industrial Revolution in Europe and North America; there were tremendous developments in maritime transport, driven especially by its importance for international trade and economic growth, and in the migratory flows from the Old World of Europe to the New World of the American continent. A significant landmark was the tragic sinking of the ‘Titanic,’ which generated widespread social alarm on the topic of maritime safety. The birth of the International Maritime Organization in the 1950’s laid the foundations for a new common regulation of all States, not only in relation to the structural safety of vessels but also to other topics including the training of seafarers.



The phenomena, now almost fully consolidated, of the Open Registries or Flags of Convenience, are generating further moves towards the deregulation of the sector; because of these risks, we will also consider in this article the tendencies in the labour market in which ship’s crews are recruited. The International Labour Organisation, which has always had maritime employment as one of its objectives in respect of the uniform regulation of decent common standards for all States, has taken a great step forward with the approval and entry into force this year of the Convention on Maritime Work; this agreement offers the prospect of a significant advance in the protection of seafarers.

We also consider the influence on the employment conditions and other basic rights of seafarers arising from the international maritime security measures imposed to control the movement of people by sea. These are controls that have been put into operation essentially in consequence of the terrorist attacks of '9-11' in the USA. In some cases these measures are creating situations whereby seafarers are badly mistreated in port.

Finally we discuss why the current legal regime has evolved in the manner that it has, and what issues are at the core of the topic of the protection of those working on ocean-going vessels: Is it the globalised nature of the industry? The growth of Open Registries? The fragmentation of regulatory control? The widespread system of Flagging? A shift in the maritime industry from OECD countries to developing countries; Or lack of enforcement?

Brief historical overview

Since time immemorial, the sea has been a mysterious, fathomless and unknown place for humanity. In Ancient History, men believed that the extent of the ocean was so immense that it reached the far-distant land of the dead, and that the sea was inhabited by terrifying creatures and monsters of all kinds. Sailing any distance was only done when forced by the need to survive. Nobody put to sea for pleasure. Only those peoples who could not survive with the resources of their lands went to sea. In the Mediterranean and Western Atlantic, various enterprising peoples, including the Tartessians, Phoenicians and Vikings, began maritime trading activities, seeking in foreign lands what could not be found in their own lands of origin.

It has always been the case that most of the men who made their life at sea were of humble origin. As an inevitable consequence, the men of the sea have always been condemned to seek ways to earn their living at the very margins of the law, and often outside the law. In the first Spanish Empire, its adventurous fleets were always looking to load cargoes, including slaves that could be sold in the New World with no reference in the official records and accounts.1 Transporting contraband was, during many centuries, an almost obligatory part of life for seafarers. However, it was the admirals and generals, the supreme commanders of the fleets, who were the great financial beneficiaries of the trade in contraband. In the 18th century, this fraud, to which we could say that the State "consented", was increasing as rapidly as the prohibitions legislated against the fraud were increasing, both in number and severity.2

* Department of Maritime Studies, University of Cádiz, Spain. emails: [email protected] and [email protected]. ** Department of Labour Law, University of Cádiz, email: [email protected]

1 P Pérez-Mallaína, Los Hombres del Océano: Vida cotidiana de los tripulantes de las flotas de Indias, Siglo XVI (Diputación de Sevilla 1992) 109 2 A García-Baquero, Cádiz y el Atlántico (Diputación de Cádiz 1988) I, 221



With the progressive disappearance of the various colonial empires and particularly, with the financial ruin represented by the loss of colonies, as occurred in the case of Spain, the situation of a certain ‘relaxation’ of fiscal authority with respect to the fraud of contraband, disappeared definitively. This is, as we see it, the key to understanding the social change that has taken place since that era, in the protagonists of the Merchant Marine of the 19th and 20th centuries. Seafarers have evolved to form two well-differentiated collectives: one of technical specialists, the ‘officers’ - a group that has gradually over the years lost its character as a guild or trades union; and another collective of more proletarian character, comprising the ordinary seamen and other subordinate personnel. This has happened gradually, as the years have passed, and in parallel with the decline in the opportunities to secure the ‘bonus’ to their earnings from smuggling or transporting contraband. This is not intended to suggest that a great social barrier had not existed previously between these two groups. Rather, what is meant is that the social condition of the seafarer became stabilized, in the sense that this was certainly not the step towards a different and better situation for most of them. The question of whether the occupation developed to become more stable and better remunerated, as did most onshore specialist trades, or failed to do so, is one we will evaluate later in this article.

In stark contrast, the status and professional situation of the pilot and captain was increasingly well-consolidated. The 19th century saw none of those military masters of galleons, nor the admirals of the navy of previous centuries, sailing the world’s trading routes. The ‘Señores de naos’, a Spanish term applied to both master and shipowner, disappeared: only a few ship-owners wanted to command in person from the bridge of the vessel they owned, and even this situation became less and less frequent. Therefore the personnel embarked to ‘work’ a ship became exclusively professional, employees, and the new barriers ‘between decks’ were not so much social as of training, qualification and remuneration.

The Industrial Revolution also marked a revolution in social attitudes to maritime work, with developments like the creation in 1852 by William Hillary in England of the Royal National Lifeboat Institution (RNLI), followed by similar innovations in Germany (1860) - Deutchen Gesellschaft zur Rettungschiffbru ̈chiger; and France (1865) - the Societé Centrale of Sauvetage des Naufrages; and also in Spain (1880) - the Sociedad Española de Salvamento de Náufragos (SESN). Also at this time, The Society for Improving the Conditions of Merchant Seamen was established,3 and one of the members of the Society, Dr Harry Leach, from the Seamen’s Hospital, wrote the influential and widely-used Ship Captain’s Medical Guide. He also advised the government on the format for the medical examination of seafarers.

The 1867 UK Merchant Shipping Act provides a convenient starting point for assessing the development of the knowledge base underpinning maritime health and safety provisions. In the year 1876 Samuel Plimsoll was successful in getting the British Parliament to approve a mission to try and discourage the overloading of cargo ships by means of a symbol marking the ‘freeboard’ displayed on the hull. Over time this symbol became generally known as the Plimsoll Line. This was perhaps the first of the big safety decisions taken by an individual Flag state, the United Kingdom, when steam was the major technological innovation in maritime transport. From this time many countries began to intensify efforts to improve the levels of safety for seafarers collectively. The United Kingdom, which in that era was already the world's leading maritime power, set up

3 Tim Carter 'Mapping the knowledge base for maritime health: Historical perspective' (2011) 62, 4 IMH 210, 216



various Committees for the protection of human life at sea, and to investigate maritime accidents. For example, Britain was the first country to regulate the number and capacity of the lifeboats carried by ships. In 1863, France also approved its first Standard or Code for the prevention of maritime accidents that, inter alia, could lead to the loss of life of passengers and crew.

The evolution of norms on the protection of Seafarers

Maritime Safety In the later years of the 19th century, with the almost universal adoption of maritime transport for mass emigration, mainly of people from Europe, the loss of a great many lives in a series of maritime accidents demonstrated the need for national and international regulation in matters of Maritime Safety.4 In 1894 the Parliament in London passed the Merchant Shipping Act5 in which an already broad range of preventive regulations were included. This Act was to be the effective germ of future International Maritime Conventions. In 1889 the first International Maritime Conference of Washington was held6; at this significant meeting, the first International Regulation for the prevention of collisions at sea was compiled, drafted and approved.7 But none of these measures proved sufficient to prevent the enormously worrying and now almost legendary maritime disaster, the sinking of the ‘Titanic’ on its maiden voyage in 1912. On the 100th anniversary of this terrible event, the scale of the commotion the sinking generated in the communications media of the times can be appreciated.

In London, in 1914, the first International Conference on Maritime Safety took place. Representatives of 13 countries attended; and the fruits of this conference included the first Convention on the Safety of Life at Sea (known by its acronym: SOLAS), which was adopted on January 20th, 1914.8 Subsequent to this SOLAS Convention of 1914, successive versions followed, until the definitive one of 1974, still in force today but with a text appropriately modified and updated.

A constituting Convention of a specialized agency of the United Nations for implementing the safety of maritime transport was adopted in 1948. Up to the present day, the 4 As just one example, the 'London', a British passenger ship, sank in 1866 with the loss of more than two hundred persons. 5 This British law, which was followed by similar Codes in other European countries such as Germany (after the sinking of the 'Elbe'), included fourteen parts that dealt comprehensively with aspects of crew training and qualification, rules of navigation, signalling, investigation of accidents, the construction of vessels, especially passenger ships, maritime administration in matters of Maritime Safety, and others. 6 It was convened on the initiative of the President of the United States of America, in pursuance of a special provision of Congress, having extended an invitation to the Governments of all maritime nations in diplomatic relations with his own, to send delegates to a Maritime Conference to meet in the city of Washington. The regulations agreed at this Conference were put into force relatively quickly by several countries, including Britain and the United States in 1897. 'Protocols of Proceedings of the International Marine Conference Held in Washington, D.C. October 16 to December 31, 1889' U.S. Government Printing Office, 3 vols. 1890. Original from: Harvard University <https://openlibrary.org/books/OL6997592M/Protocols_of_proceedings_of_the_International_marine_conference> 'Final Act of the International Marine Conference held at Washington, October 16 to December 31, 1889' (1911) 5 (1) The American Journal of International Law 42, 73 <http://www.jstor.org/stable/2212463> 7 A further Conference in Brussels in 1910 amended some rules. 8 It was intended that the Convention should come into force in July of 1915, but by then the First World War had already broken out, so this could not take place. Therefore it can be stated, with justification, that the SOLAS of 1914 established the basis of maritime safety as it stands to the present day.



International Maritime Organization (IMO) has done extremely important work in function of the three principal objectives set out in its own founding Agreement: maritime safety; efficiency of navigation; and prevention and counter-measures against contamination of the sea. An initial phase of this work has materialized in the production of an integrated body of codes, agreements and recommendations of international character, the object of which is to facilitate the adhesion of all the maritime countries of the world to the minimum standard required in matters of the safety of human life at sea, efficiency of navigation and in matters of the protection of the marine medium. Standards of Training Today, maritime education and training is based on standards established by the IMO. On 7 July 1978 an International Conference took place with the object of reaching an international agreement on common work standards, requirements and duties for all seafarers. The resulting agreement was the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW-78); this, in turn, was adopted by the IMO in 1978, as a commitment between the signatories to achieve higher levels of employee training; and the actual implementing of the measures agreed was a further challenge. In fact, these aspects of the agreement have been made more effective by the subsequent amendments of 1995 and 2010.

The great modifications made to the STCW-78 have their origin in the international association of maritime employers, the International Shipping Federation (ISF), which in 1992 presented to the IMO a series of proposals for amending the Convention. This was driven particularly by the need to try and reduce the large number of costly maritime accidents occurring as a consequence of human factors; these were often the result of deficiencies in crew competence, due in part to continuous changes of crew and to inadequate systems of training by some national authorities and companies. Perhaps the STCW-78 was a Convention more of good intentions than of firm commitments. It was lacking in precepts and objective indicators of competence. Only certain minimum requirements were stipulated for seafarers to obtain certificates, and the application of the standards was left too much to the ‘judgment of the Government’ of each signatory country. It was open to different interpretations, and objective minimum levels for the common competences required were not established. Concern about all the many doubtful areas led to the follow-up Convention held from 26 June to 7 July 1995, which resulted in the modification of the STCW, in the form of a new version now known as STCW-78/95.

The new measures in the 1995 amendments cover three main areas: new responsibilities for companies; the establishment for the first time of minimum levels of competence; and the proposal of new measures to ensure the implementation of the standards.

In the STCW-78/95 training is understood as being of three types: Basic or common; Special; and Additional. Basic training is that required to obtain the following professional titles or competences (according to Chapters II, III and IV): Captain; First Officer of the Bridge; Bridge Officer; Bridge Seaman; Chief Engineer; First Engineering Officer; Engineering Officer; Oiler, greaser or QMED; Radio-operator; Officer. The special training is that required in order to work on board particular types of vessel (Chapter V.): tankers, container ships, roll-on/roll-off vehicle ferries, passenger ships, etc.

Additional training is to meet the requirements for particular important functions on board: Emergency response (especially fire-fighting); Safety at work; Medical attention; and Survival-at-sea. Also understood as additional training is the obligatory training to obtain



the certificates of speciality, such as: Basic training (formerly first levels of fire-fighting and survival-at-sea); Advanced fire-fighting; Life-boat and rescue boat handling; Fast rescue boat handling; Automatic radar plotting aid (ARPA): and that of General Operator and Restricted Operator of the Global Maritime Distress and Safety System (GMDSS).

More recently, further amendments were considered at the Conference of 21-25 June 2010, held in Manila,9 where important improvements were agreed in many aspects such as the prevention of fraud related to the issue of certificates of competence, and the strengthening of the assessment procedures for monitoring compliance with the Convention. In the Manila review special importance was attached to maximum hours of work and minimum rest breaks, and new requirements for the prevention of drug addiction and alcoholism, as well as an updating of the standards of physical aptitude for seafarers. Also significant is the introduction of modern methodologies for the training of seafarers, including distance learning and Web-based learning (e-learning). The harmonisation of seafarer training is, in short, a key plank of the current international regime for protection of seafarers.

Standards on maritime labour Within the International Labour Organization (ILO), the maritime sector is one of the specific sectors in which the organization has been working since its creation. The sector is divided into four subsectors: shipping, ports, fisheries and the inland waterways sector. The ILO has a specifically maritime program that has the objective of promoting the social and economic progress of maritime employees. Since the foundation of the ILO, it has included a Maritime Parity Commission that advises the Board on maritime matters; it also organizes special meetings of the International Conference on Labour that are charged exclusively with drawing up and adopting standards on maritime work. Since 1920, the International Conference on Labour has adopted almost a hundred standards on maritime work, covering a very diverse range of topics, such as the minimum age for admission into employment, contracting and placement, medical examinations, enrolment contracts, paid holidays, social security, working hours and rest periods, crew accommodation, identity documents, health and safety at work, welfare at sea and in port, continuity of employment, vocational training and certificates of aptitude.10 It has also adopted reams of practical

9 The entry in force of the Manila amendments will take place progressively in four stages: 1st phase: 1 January 2012; 2nd phase: 1 July 2013; 3rd phase 1 January 2014; and 4th phase: 1 January 2017. 10 The major ILO Conventions affecting seafarers are:

• Minimum Age (Sea) Convention, 1920 (No. 7) • Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8) • Placing of Seamen Convention, 1920 (No. 9) • Medical Examination of Young Persons (Sea) Convention, 1921 (No. 16) • Seamen's Articles of Agreement Convention, 1926 (No. 22) • Repatriation of Seamen Convention, 1926 (No. 23) • Officers' Competency Certificates Convention, 1936 (No.53) • Holidays with Pay (Sea) Convention, 1936 (No. 54) • Shipowners' Liability (Sick and Injured Seamen) Convention, 1936 (No. 55) • Sickness Insurance (Sea) Convention, 1936 (No. 56) • Hours of Work and Manning (Sea) Convention, 1936 (No. 57) • Minimum Age (Sea) Convention (Revised), 1936 (No. 58) • Food and Catering (Ships' Crews) Convention, 1946 (No. 68) • Certification of Ships' Cooks Convention, 1946 (No. 69) • Social Security (Seafarers) Convention, 1946 (No. 70) • Paid Vacations (Seafarers) Convention, 1946 (No. 72) • Medical Examination (Seafarers) Convention, 1946 (No. 73)



recommendations, directives and reports dealing with topics of interest for seafarers. The ILO cooperates with other bodies of the United Nations organization that are competent in the maritime sector, particularly the International Maritime Organization (IMO) and the World Health Organization (WHO).11

Flags of convenience: implications for seafarers Open registries Historically States have attributed their nationality to their ‘own vessels,’ those that fly the flag of that State. The so-called ‘flagging’ of a vessel was an act of endorsement of the authority of that country, and signified that the vessel was under the jurisdiction of the laws of that State. Those countries with a significant maritime tradition took care to maintain the reputation of their fleet for lawfulness in the condition and operation of their ships. However, basically since the Second World War, the phenomenon known pejoratively as ‘Flags of Convenience’ (FoCs)12 developed;13 this arrangement is characterised notably by

• Certification of Able Seamen Convention, 1946 (No. 74) • Accommodation of Crews Convention, 1946 (No. 75) • Wages, Hours of Work and Manning (Sea) Convention, 1946 (No. 76) • Paid Vacations (Seafarers) Convention (Revised), 1949 (No. 91) • Accommodation of Crews Convention (Revised), 1949 (No. 92) • Wages, Hours of Work and Manning (Sea) Convention (Revised), 1949 (No.93) • Wages, Hours of Work and Manning (Sea) Convention (Revised), 1958 (No. 109) • Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No 133) • Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) • Continuity of Employment (Seafarers) Convention, 1976 (No. 145) • Seafarers' Annual Leave with Pay Convention, 1976 (No. 146) • Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147) • Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147) • Seafarers' Welfare Convention, 1987 (No. 163) • Health Protection and Medical Care (Seafarers) Convention, 1987 (No. 164) • Social Security (Seafarers) Convention (Revised), 1987 (No. 165) • Repatriation of Seafarers Convention (Revised), 1987 (No. 166) • Labour Inspection (Seafarers) Convention, 1996 (No. 178) • Recruitment and Placement of Seafarers Convention, 1996 (No. 179) • Seafarers' Hours of Work and the Manning of Ships Convention, 1996 (No. 180)

11 F Piniella, JM Silos, F Bernal 'Who will give effect to the ILO’s Maritime Labour Convention, 2006?' (2013) 152 (1) Int Labour Rev 59, 83 12 The ITF Fair Practices Committee decided to compile a list of FoC countries. The basis for inclusion is the so-called "Rochdale Criteria" laid down by a British Committee of Inquiry in 1970. These were:

a. the country allows non-citizens to own and control vessels; b. access to and transfer from the register is easy; c. taxes on shipping income are low or non-existent; d. the country of registration does not need the shipping tonnage for its own economic or trading

purposes but is keen to earn the tonnage fees; e. manning by non-nationals is freely permitted; f. the country lacks the power (or the willingness) to impose national or international regulations on its

shipowners. 13 BN Metaxas 'Flags of Convenience' (1981) 5(1) Marine Policy 52, 66



the absence of what the International Court of Justice referred to in a 1955 sentence as a ‘genuine link’ between a State and its national, person or entity.14

According to this principle, a country cannot extend its laws and protection to its nationals without any kind of limitation: in addition to the formal nationality there must also exist between the State and its national a genuine connection; what constitutes the link between a State and a vessel registered in and flying the flag of that State was set out in the IMO Convention on the High Seas of 1958.

There is agreement among authors that, after the Second World War, with the birth of the Open Registry (OR) concept, the business of maritime transport was transformed into a truly internationalized activity. Maritime transport is therefore subject to a duality of countervailing, and sometimes conflicting, pressures and interests: for one part, it has all the characteristics and complexities of a truly international and competitive service industry, and for the other, the service suppliers (ship owners and operators, port managements, and others) and the users (cargo shippers, agents, charterers, etc.) must operate within a political/legal framework based on the concept of the Nation State that has developed over many centuries.15

Registering a ship in a State different to that of the shipowner is a practice going back a long time; maritime transport has been making use of that system in order to overcome certain restrictions.16 The United States played a critical role in the creation, development and consolidation of a system from which it would obtain enormous advantages, helped at first by the establishment of the Panamanian Register in the early part of the last century, and later the Liberian Register in 1949.17 More recently, countries have appeared that have joined the market as ‘new’ Open Registries, countries that, in the majority of cases, lack political or territorial relevance and even less, have any maritime tradition. Some are true

14 A Bergantino and P Marlow. 'Factors influencing the choice of flag: empirical evidence' (1998) 2(2) Maritime Policy & Management 157, 174 T Alderton and N Winchester 'Globalisation and de-regulation in the maritime industry' (2002) 26(1) Marine Policy 35, 43 KX Li and J Wonham 'Who is safe and who is at risk: A study of 20 years record on accident total loss in different flags' (1999) 26(2) Maritime Policy and Management 137, 144 15 T Alderton, M Bloor, E Kahveci, T Lane, H Sampson, M Thomas, B Wu and M Zhao, The Global Seafarer: Living and Working Conditions in a Globalised Industry (Geneva: International Labour Organization 2004) L Kovats 'How Flags Lost the Plot over Shipping´s Governance: Does a Ship Need a Sovereign' (2006) 33(1) Maritime Policy & Management 75, 81 16 In the Open Registry countries there are cost advantages to shipowners of three main types: - Fiscal: there is no Corporation or Company Tax levied on the profits of the shipowner; these are replaced by what is known as a Tonnage Tax; no Income Tax is levied on the earnings of crew members; there is no obligation for the employees to be affiliated to the Social Security system of the Flag State. - Labour costs: the application of the International Regulations (IMO, ILO) allows certain minimum levels in respect of the number of crew members – for example the regime of two Watches instead of three Watches stipulated by the regulations in many Closed Registry countries; regimes for crew holidays are less generous than those in force in OECD countries; the regime for crew contracting is established by campaign, and there is no stability in employment; regarding salary levels, these tend to be set with reference to the costs of living in the country of origin of the employee, or by collective agreements of the ITF, or simply by direct negotiation with the individual employee. - Costs of Maritime Safety: the Open Registry countries apply the international standards through a Recognised Organisation, normally a Classification Society. 17 F Montero 'Open registers: past, present and future' (2003) 27(3) Marine Policy 513, 523



fiscal paradises where, it must be admitted, the standards of inspection are usually very poor.18

The ‘battle’ to stop this process by which shipowners have increasingly abandoned the traditional maritime flags, known as ‘flagging out,’ seems to have been lost, according to the figures that are published each year on the world’s merchant marine fleets. It must also be stated that the subsequent international measures have not facilitated the resolution of this confusion with relation to that term, neither in the wording of Article 91.1 of the United Nations Convention on the Law of the Sea, (UNCLOS 1982), nor in the failed United Nations Convention on Conditions for the Registration of Ships, (UNCCROS 1986) which remains becalmed in the list of international agreements awaiting ratification, with only twenty four adhesions to date. Nor can it be said that the campaign of the International Transport Workers’ Federation (ITF) to stop the proliferation of these flags has achieved very much.

Instead of the ‘one-to-one’ traditional nexus of a ship being registered in (and regulated by) the country of which its owner is a national, an Open Registry is one open to the registration of any ship, whatever the nationality of its owner. In fact, these days, it is often impossible to determine the identity (and hence the nationality) of the owners of many merchant ships currently in active use. It is no easy task to explain all the implications deriving from the OR system: certainly they include such issues as ship operating economics (especially ship maintenance costs and crew wage rates), the competence and conditions of employment of officers and crews, rights of trades union representation, ease of access to a register, and fiscal issues - all this within a context of a liberalized regime, where particularly significant countries (certain registries and FoC states) and particular ship-owners (many with large fleets) play significant roles. It is difficult to argue against the view of the International Transport Worker’s Federation (ITF) that there should be a ‘genuine link’ between the real owner of a vessel and the flag the vessel flies, in accordance with UNCLOS.

There is a considerable literature19 dealing with the subject of the Open Registries and, today, there is a consensus, particularly, in not making a simple distinction between ‘good and bad’ registering countries for seafarers’ interests, without having first established clear correlations between the process of recruitment of crews and the flag country of the vessel. The existence of multiple Flags of Convenience (FoC) -a term closely related to Open Registries- is a phenomenon that has been evolving continuously up to the present day since its emergence as a significant international issue in the 1950's; by the end of the 1980's more than half of the total tonnage of the world's fleet was sailing under a FoC. The use of FoCs has been a source of controversy in the context of international maritime transportation for decades, and it continues to be so. There is no doubt that this has become a central topic at the beginning of the 21st century, especially considering that, in the latest and most damaging accidents, such as those involving the tankers ‘Erika’ and ‘Prestige’, the ships concerned have flown flags of OR countries; it is clear that accidents, ship safety and crew competence are issues closely-related to the ship’s country of registry. Obviously, there is no ‘genuine link’ in these cases of FoC registries. As the ITF states, in an increasingly fierce competitive maritime transport market, each new FoC is forced to promote itself by offering the lowest possible fees and the minimum degree of regulation.

18 I Theotokas and M Progoulaki 'Cultural diversity, manning strategies and management practices in Greek shipping' (2007) 34(4) Maritime Policy & Management 383, 403 19 Metaxas, (1981) or Alderton, (2002)



It is in any case evident that this industry is undergoing a process of concentration in the number of important registries.20 Those registries that have not adapted to the standards established internationally by the IMO are not competitive. For ship-owners this would be reflected in the increased financial risks resulting from the detention of a vessel by a Port State, based on the mechanisms put into practice in most ports of the world, principally through the regional agreements known as the Memoranda of Understanding (MoUs) of Paris, Tokyo, the USA and several other regional groupings. Trends in the global market for crews Globalization can be understood as commencing essentially when discrete economies within national borders became open to global rather than merely regional trade and other commercial exchanges between each other. In the maritime transport industry, this economic process has been accompanied by a progressive governmental process of de-regulation in the principal structures of the industry. As stated by Professor Lane already by the year 2000, the global labour market was a reality for most of the world's seafarers except for those working in the coastal and near-sea trades of the world's least economically developed regions.21

In the two last decades of the 20th century, two events occurred that have had important consequences. The first is the serious economic crisis of the 1980's, with a fall of 400 million DWT22 in global capacity in the year 1981, and the consequent concentration of maritime companies, with the result that, at the start of the 21st century, the principal lines were effectively controlled by a small number of companies and alliances. The second decisive event has been the privatization of the fleets of the Eastern European countries and Russia after the collapse of the former USSR. Some of these fleets consisted of very old vessels and were bankrupt (those of Rumania and Georgia), but others (those of Yugoslavia and Poland), that had been well-managed, fell into a long period of decadence. A large number of seamen (especially officers) easily found employment in vessels of other countries. The fleet of the former East Germany was rapidly dismantled and its seamen were employed in the vessels managed by West German companies.23 In the cases of the Russian Federation, Ukraine and the Baltic countries, the situation was more complex. The privatized companies were refinanced by the registration of vessels abroad, or by means of bare hull or demise charters,24 but with national crews.25

Following the long crisis of the 1980’s, shipowners either abandoned the maritime business or opted for flagging their vessels in Open Registries (frequently in the USA since the 1950s). As a result of this, a world network developed of agencies and organizations dedicated to the recruitment and management of crews for vessels. At the beginning of the 21st century, these companies were located in the principal capitals of the maritime

20 The data confirm that the growth of the Open Registries, as against the traditional registries, is unstoppable and has now become consolidated: the vessels registered in Panama account for 21.4% of the total world fleet; Panama and Liberia together account for 33.8% of the total; and taking together the top five registries (the above two countries plus Hong-Kong, the Marshall Islands and Singapore) the percentage of the world total accounted for reaches 54.7%. In fact, in recent years, a process of concentration can be clearly seen. 21 T Lane 'The Global Seafarers' Labour Market: problems and solutions' [2000] SIRC 10 22 DWT: Deadweight tonnage. It measures the total weight of a ship and its contents including cargo, fuel, crew, passengers, food, and water aside from boiler water. It is expressed in long tons (2,240 pounds or 1,016 kilograms). 23 H Cottam and M Roe 'The impact of transitional changes on maritime transport in Central and Eastern Europe' (2004) 31(4) Marit Pol & Manag 287, 308 24 In the bare hull charter of a ship the vessel is hired or rented out for a specific period or voyage without a crew, or with a crew paid by and responsible to the charterer. 25 T Alderton et al (2004)



business (Hamburg, Piraeus, New York, Hong Kong and Singapore). At first, eight of these controlled 36% of the market, and the market was complemented with a group of small firms (of less than 15 vessels). Once consolidated, they formed the International Ship Managers’ Association (ISMA); the member companies managed the crewing of a total of 1,800 vessels, 60 million DWT, of which 80% were registered in Open Registries or international registries. The clients of these companies are normally shipowners that seek to reduce their costs, now that the pressure from the developed countries to man their vessels with national crews has diminished, together with the complete freedom offered by the Open Registry countries in configuring crews.26

Consequently there was a significant drop in the number of seamen employed from countries of the OECD, which occurred in three historical stages: in the period from 1968 to 1974, there was an intensification of the capital factor in detriment to the human factor, and traditional cargo ships were being replaced by container carriers and Ro-Ro vessels; from 1980, seamen from OECD countries began to be replaced by those from developing countries (in 1987 alone, the employment of Filipino seamen in vessels controlled by European ship owners increased from 2,900 to 17,057 persons); and III) from 1990, seamen from Eastern Europe entered the world maritime labour market in large numbers.27

The question of finding suitable crews is not only economic: sometimes the reasons for these ‘substitutions’ are directly related to the demands in terms of working hours or civilized conditions of accommodation and food. Crews originating from the countries of the East that are “successful” today in the market, who have no direct experience of the achievements reached in the western democracies in respect of working conditions, etc., previously mentioned, are willing to accept excessive working hours or poor living conditions on board; they will work without the conveniences to which the crews of the developed countries are accustomed, in exchange for salaries that are low but nevertheless double or triple what they would be paid in their countries of origin. Multiculturality is therefore, a general feature of crews today; language is a key determinant of this phenomenon. Poles, Indians and Filipinos are frequently mixed in crews of diverse countries, although homogeneity is the tendency in the crews of certain nationalities, like Russia and China.

Currently, the trend is towards increasing liberalization in the free contracting of crews, totally independent of nationality. The implication behind this trend is that the profession of 'seafarer' in the OECD countries is becoming less and less attractive from the point of view of personal and even professional life. The reasons for this include the reduction of the time vessels spend in port, the progressive decrease of the size of crews, and the new responsibilities that fall on seamen at various levels, due to advances in maritime technology, increased safety requirements, environmental protection and other factors. The instruments intended to control compliance For more than 50 years the International Maritime Organization (IMO) has carried out valuable work and invested a great deal of effort in implementing rules and regulations covering maritime transportation to ensure compliance with vital standards of shipping safety and marine environmental protection. The SOLAS, MARPOL and STCW

26 JM Silos, F Piniella, J Monedero and J Walliser 'Trends in the global market for crews: A case study' (2012) 36 Marine Policy 847 27 T Alderton, M Bloor, E Kahveci, T Lane, H Sampson, M Thomas, B Wu, and M Zhao, The Global Seafarer: Living and Working Conditions in a Globalised Industry (Geneva: International Labour Organization 2004)



Conventions have been adopted in respect of ninety per cent of the international fleet. From the current situation, however, it is clear that sub-standard vessels are proliferating, and represent a serious hazard to the safety of marine navigation. The large number of different nationalities involved in maritime transportation has motivated Coastal/Port States to try and develop protecting policies. In respect of the International Conventions, the efforts of the IMO have borne fruit, but not so the work of implementation by the Flag-issuing states. It is now clear that some states accept, on paper, the commitment that the ships flying their flag should comply with specified conditions but in practice, either do not accept the responsibility of enforcing compliance or are incapable of accepting it (but will not acknowledge their incapacity). Their ships can thus avoid the provisions of these International Conventions, with the terrible consequences still frequently seen in loss of life at sea, loss of vessels and cargoes, and severe environmental damage (not to mention the largely unseen abuse of seafarers and their rights). To summarize the situation briefly, despite the conventions agreed, the Flag-issuing states have failed to resolve the serious problems of vessels not meeting agreed minimum requirements of safety, environmental protection and crew conditions, and so a separate system of control, the Port State Control (PSC) system, has been evolving as an alternative and more effective means of resolving these problems. Nevertheless the problems still persist.

In recent years our research group has been working monitoring the phenomenon of globalization in the maritime transport industry, particularly from the perspective of the evolution of the systems of inspection and control, by analysing the most indicative data that might inform and alert us regarding the various risks posed by sub-standard ships.

The present and still evolving regional system of Port State Control (PSC) emerged essentially from two models, one national and the other international but limited to a particular region:

– The American model of the U.S. Coast Guard: 1970 and 1994. – The European model of the Paris Memorandum of Understanding (MoU): 1978 and 1982.28

The MoU model implies the ‘ceding’ of sovereignty by States, in sense that maritime governments cooperate with each other with the object of establishing a framework of trust in the agreed control procedures that serve as a reference for all the signatory countries of that MoU. However, in the USA model, that cooperation does not exist, and only the control procedures implemented by and in the USA are admitted as valid. Promoted by the International Maritime Organization (IMO), in recent years, eight more agreements have been signed for the PSC of vessels, all of them regional in scope:

– The Agreement of Viña del Mar (Latin American Agreement) (1992) – Tokyo MoU (Asia-Pacific MoU) (1993)

28 The MoU of Paris is based on the previous experience of what was known as the Memorandum of The Hague, signed in 1978 by a group of 8 European countries with the aim of reaching an agreement to adopt uniform criteria for the inspection of working conditions on board ships, according to the provisions of Convention 147 of the International Labour Organisation (ILO). However, the agreement of The Hague had hardly come into effect when the oil tanker Amoco Cadiz ran aground in the English Channel. This incident and its disastrous consequences spurred these countries into reappraising their preventive policies. As a result the original agreement was remodelled and extended to cover other matters contained in other International Conventions related to maritime safety and protection of the marine environment. Thus was born in 1982 the first international agreement on the unification of criteria for the inspection of foreign ships by PSC authorities, signed in principle in Paris by 14 countries and termed the Memorandum of Understanding of Paris.



– Caribbean MoU (1996) – Mediterranean MoU (1997) – Indian Ocean MoU (1998) – Abuja MoU (West and Central Africa MoU) (1999) – Black Sea MoU (2000) – Riyadh MoU (Gulf Region) (2004)

The international conventions now in place set out the rights and duties of each State in respect of the vessels that fly its flag. However, the rationale of the PSC system is that every state also has a right and duty to inspect any foreign vessel that calls at any of the ports under that state’s jurisdiction. The purpose of such inspection is to verify that the conditions of the ship, its cargo, its equipment and crew comply with the requirements demanded in International Conventions.29

The regional systems of Port State Control (PSC) are the new element of counterweight in the situation.30 On the topic of the PSC system of control, the published studies coincide mainly in evaluating its role in the detection and detention of substandard vessels.31 However, on analyzing the deficiencies detected under the principal MoU inspections, it is observed that, fundamentally, the resulting actions focus on the application of the International Conventions relating to the safety of the vessel and the prevention of pollution, and that little is being done so far about working conditions and the application of the principal ILO Conventions. There has arisen, therefore, a certain lack of definition about PSC activities with regard to labour questions, and reluctance by the inspectors to make more intrusive enquiries about the daily life and conditions of employment of those persons living and working on board the vessel.

In this context, Flag States can be seen as representing mainly the interests of the ship-owners and operators (i.e. the providers of transport services) whereas the Port States are more sensitive to the interests of the users - the customers, in effect: the shippers of cargoes and passengers. In the light of the failure of the Flag States to take decisive action, jointly or individually, on compliance, groups of other states involved in supervising international maritime traffic, groups of significant Port States, had recognized the need to ensure maritime safety and to protect the marine environment in the States’ own ports and coastal waters, even before the formation of the FSI Subcommittee of the IMO. The action proposed for this was to monitor foreign ships that visit their ports, and if justified, to detain or prohibit the entry of ships not complying with the provisions of the International Conventions; such non-compliant ships were henceforth-designated ‘substandard ships.’

All Port States are also Flag States, as a matter of course. Any state, in function of registering ships to sail under its flag, must ensure that all the ships of its fleet conform to the requirements demanded in the International Conventions. However, it is also obliged to take measures to avoid the occurrence of “incidents” in its coastal waters. For this, the 29 H Hoppe H 'Port State Control, an update on IMO´s work' (2000) IMO News 1/2000 9, 11 30 The level of compliance with international conventions by Open Registry vessels is generally much lower than vessels of traditional registries. Only the Liberian Ship Registry (LISCR) appears on the both US Coast Guard's "white list" and the Paris MoU list of Open Registries (2011). 31 TL McDorman 'Regional Port State Control agreements: some issues of international law' (2000) 5(2) Ocean & Coastal Law J 207, 225 P Cariou, J Mejia, Q Maximo and FC Wolf 'An econometric analysis of deficiencies noted in port state control inspections' (2007) 34(3) Marit Pol & Manag 243, 258 P Cariou, J Mejia, Q Maximo and FC Wolf 'On the effectiveness of port state control inspections' (2008) 44 Transp Res Part E 491, 503



Port state must ensure that foreign ships visiting its ports comply with the same requirements as its own registered ships, flying its own flag. As we have already seen in its definition, this principle of action or authority is what legitimizes the Port State Control system.

The objective that was set in 1992 by the IMO was the establishment of a global network of regional agreements that were independent but would benefit mutually from cooperation between the corresponding groups of countries. Twenty years later, the global network of regional agreements has been formalized, although their efficacy can only be vouched for in particular areas of the world. Cooperation and the prospects opened up by the exchange of information, harmonization of the inspection and control procedures, and the theoretical and practical training of PSC Inspectors, are more encouraging, from a global perspective.

Implementation challenges regarding standards in the improvement of Seafarers' rights. Globalization and Shipping: a relationship of interdependence There is no doubt that efficient international transport has been the true driving force of Globalization, together with trade liberalization and international standardization. The technological revolution of the ISO container has given rise to accelerated growth in the size and loading capacity of specialist container cargo vessels.32 Given that, in international maritime transport, the economies of scale, the speed at which merchandise is moved, and the transport equipment itself are all very important elements, it was predictable that the dynamism of the container revolution would drive a technological change in the characteristics of vessels, and consequently in the maritime business, one of the world's first and most globalized major businesses. The interests of a multitude of countries come together: Greek ship owner with vessel constructed in Korea, flag of Panama, Ukrainian captain, Filipino seamen, sailing to ports of all the world, where highly-mechanised terminals handle containers of many different countries, moving cargoes to and from any continent. Despite possible adverse effects of this diversity in the determinants of costs, we can talk quite correctly of an entire logistic chain now encircling the globe.

By the year 2000 the shipping business would not be recognizable to the shipowners and charterers of the early 1900s.33 The data confirm that the growth of the Open Registries, as against the traditional registries, is unstoppable and has become consolidated: the vessels registered in Panama account for 21.4% of the total world fleet; Panama and Liberia together account for 33.8% of the total; and taking together the top five registries (the above two countries plus Hong-Kong, the Marshall Islands and Singapore) the percentage of the world total accounted for reaches 54.7%. In fact, in recent years, a process of concentration can be seen. In 2011 the registration of vessels under a foreign flag reached 71.5% of the total world fleet. We are also dealing with a sector strongly centralized in a limited number of countries: according to data of UNCTAD,34 four countries (Greece, Japan, Germany and China) effectively monopolize ship ownership, accounting for half of

32 Marc Levinson, The Box: How the Shipping Container Made the World Smaller and the World Economy Bigger (Princeton University Press 2006) 33 William R. Gregory, Flags of Convenience: The development of open registries in the Global Maritime Business and implications for modern seafarers (Thesis Georgetown University, 2012) 18 34 UNCTAD (United Nations Conference on Trade and Development), Review of Maritime Transport 2012. (United Nations Pub. 2013) <http://unctad.org/en/PublicationsLibrary/rmt2012_en.pdf>



all vessels - a similar degree of concentration as occurs with the registries but with a completely different set of countries.

The industry’s response to the economic crisis has been slower than in other sectors, and despite the drop in demand, growth has continued in the total capacity of the fleet. This has inevitably given rise to a surplus in the supply and a fall in shipping rates, such as chartering rates. In consequence, the very large operators such as Maersk and Hanjin have reported historically large financial losses. But how could this worrying economic phenomenon affect the conditions of work of seafarers? Taking a (very) optimistic approach to the problem, we can think that, if possible global monopolistic abuses are prevented by the appropriate authorities,35 the industry will continue, albeit slowly, in the trend of maintaining better levels of quality and safety in the vessels: this trend alone should be paralleled by improving conditions of life for all those who work at sea, whatever their rank or job, and a good level of training and of earnings that correspond to the importance and risks of that work.36

The liner shipping industry has experienced an extensive wave of changes: the elimination of conferences enhanced the competition within the industry. We should note, at this time, the controversy between different authors arguing that alliances are not only commercially needful but will actually ensure a more macro-economically and environmentally sustainable model of shipping. Liner shipping alliances and co-operation continue to play a central role in the operation and long-term viability of liner shipping companies.37 Maritime Labour standards in the Age of Globalization As stated recently by McLaughlin,38 the maritime labour force has unique characteristics in terms of migration and mobility, which have also created a highly segmented market. The segmentation allows shipowners to indulge their preferences for certain groups and their desire to reduce cost, a phenomenon which has led to significant differences in terms and working conditions within the seafaring labour market.

Traditionally the costs accounted for by the crew depend on the vessel and on the actual crew. Depending on the flag of the vessel, crew salaries, conditions on board, social security regime and contributions, minimum safety crew rosters, etc., will vary since all these topics are linked to the requirements (or lack of requirements) of the national legislation of the country of registration. Depending on the type of vessel, a crew that is more or less specialized will be needed; more advanced automation of operations does not always bring savings for a ship owner, because sometimes a cost saving from the reduction in the number of crew members can be outweighed by the need to pay much higher salaries to the fewer but better qualified crew members needed. The length of service and the state of conservation of the vessel will also have an influence on costs, in terms of the number of extra hours of work or crew overtime generated. 35 We can now speak of four large conglomerates: the “Grand Alliance”, formed by P&O Nedlloyd, Hapag Lloyd, Nippon Yusen Kaisha (NYK), Orient Overseas Container Line (OOCL) and Malaysia International Shipping Corp.; the “Unique Global Alliance” of Maersk Line and Sea Land; the “New World Alliance” of American President Line (APL-NOL), Mitsui Osaka Line (MOL) and Hyundai Merchant Marine; and the “United Alliance” of Hanjin, DRS-Senator and Cho Yang. 36 R Goss 'Social responsibility in shipping' (2008) 32 Marine Policy 142, 146 37 PM Panayides and R Wiedmer, 'Strategic alliances in container liner shipping' (2011) 32 Research in Transportation Economics 25, 38 D Yang, M Liu and X Shi 'Verifying liner Shipping Alliance’s stability by applying core theory' (2011) 32 Research in Transportation Economics 15, 24 38 Heather Leggate McLaughlin 'Seafarers and Seafaring' in Wayne K. Talley (eds), The Blackwell Companion to Maritime Economics (Blackwell Publishing Ltd. 2012) 331



The nationality of the crew members has an influence on cost, through the standard of life in their country of origin, because this leads them to accept pay and conditions that may be worse than current international standards but much better than what they could obtain in their places of origin.

Analysing the BIMCO/ISF data,39 it can be seen that there has been a fall in the number of seamen originating from the developed countries, by the lack of new entrants and by the difficulty of retaining those already employed; the result is that this group is not only reducing in numbers but also a progressive ageing of the group is taking place. The working conditions worsened due to the decrease in the number of seamen employed: fewer men were expected to do the work previously done by larger crews. The average size of the crew of a general cargo vessel was 60% smaller than in 1970. This was achieved by removing the distinction between deck and engineering personnel, on the one hand, and between steward’s department and deck personnel, on the other.40

A report of the International Commission of Shipping (ICONS) stated in 2000: ‘For thousands of today’s international seafarers, life at sea is modern slavery and their work place is a slave ship’.41 It seems incredible, but there is evidence of a range of employment practices, particularly in sourcing crews from the South East Asian region, that severely disadvantage employees and in some cases involve clear breaches of international conventions. For instance, clauses in contracts denying the right to freedom of association, or recruits who are required to pay a hiring fee to a manning agent, often in excess of a month’s salary, to obtain a job.42 Even in 2006 the ITF described the situation as an appalling anachronism in the 21st century. For too long seafarers' rights have been brushed aside in the pursuit of flexible, commercially-focused policies, where fundamental rights have become subservient to business imperatives. It is time to raise the profile of the human element in this vital global industry. Seafarers must not remain invisible: "out of sight, out of mind" is not a valid principle of management in an industry of such global importance.43

The emerging international regime on seafarers’ rights

The International Maritime Labour Convention On 20 August 2013 the International Maritime Labour Convention (known by the initials MLC, 2006), entered into force for all ships over 500 GT engaged in international voyages, with new certification,44 inspection45 and record keeping requirements. A year before, The Philippines became the thirtieth state to ratify the MLC.46

39 BIMCO/ISF Manpower 2010 Update (Coventry: Warwick Institute for Employment Research, Warwick University 2010) 40 L Heather, 'The future shortage of seafarers: Will it become a reality' (2004) 31(1) Marit Pol & Manag 03, 13 41 International Commission of Shipping, Ships, Slaves and Competition (ICONS 2000) 57 42 Ibid 170 43 International Transport Workers’ Federation, Out of sight, out of mind (ITF 2006) 36 44 Maritime Labour Certificate and a Declaration of Maritime Labour Compliance (DMLC) issued by the flag state. The certificate will follow an inspection by a recognised organization (RO) to ensure compliance with the MLC’s standards in accordance with the flag state’s national laws with respect to the following: minimum age; medical certification; qualification of seafarers; seafarer employment agreements; use of recruitment and placement services (manning agencies); hours of work or rest; manning levels; accommodation; on board recreational facilities; food and catering; health & safety and accidental prevention; on board medical care; on



Some years before, in February 2006 the International Convention on Maritime Labour was approved almost unanimously. This Convention is the fruit of five years of work by the ILO, together with its interlocutors such as the International Transport Workers’ Federation (ITF),47 aimed at improving the working situation previously established by the old C147 of Minimum Standards for the Merchant Marine. The specific object was to draw up a single, comprehensive instrument that would, as far as possible, bring together all the standards currently in force contained in the various international conventions and recommendations on maritime work, including the fundamental principles that featured in other international agreements on labour. The MLC applies to all seafarers.48

The Director-General of the ILO has considered the MLC-2006 to be “historic”, to emphasize the real implications of its application and the instruments on which its application will depend. However, is it really justified to rate it as a ‘super convention?’49 It has been claimed that this Convention will constitute the fourth pillar on which the international system of regulation will be based, thus ranking it in importance with SOLAS, MARPOL and STCW. It will bring up-to-date more than sixty-five maritime labour agreements of the ILO and for the first time will provide more than 1.2 million seafarers from all around the world with complete social protection,50 according to those promoting the significance of the MLC.51 We think, therefore, that these claims are justified (at least until there is evidence that it is not being implemented, and that State practice is not really changing).

The MLC-2006 sets out the minimum prescriptions for seafarers who work on board a vessel, and includes provisions relating to the conditions of employment, accommodation, recreational facilities, food and catering, health, medical care, welfare and social security protection. In this respect, it may be compared with a legal code in the Napoleonic concept and, equally, with a legal guideline in the Anglo-Saxon sense.52 And of course it comes within the broader ILO strategy of promoting ‘Decent Work’ in a context dominated by the globalization of crews. But most importantly for the subject of this article, it contains no new provisions for enforcement beyond those already in operation, theoretically, under previous international conventions. However, although the MLC-2006 may open the door to realizing hopes held by its drafters of obtaining a better-regulated global market for

board complaint procedures; and payment of wages. Bulletin Risk Management 08-13 (The Britannia Steam Ship Insurance Association Limited 2013) 2 45 Certificates are valid for a maximum period of five years with the requirement for intermediate inspections to be held between the second and third year anniversary dates. DMLC ensures compliance with MLC standards, and assists inspectors in checking that national requirements are properly implemented. It comprises two parts: Part I will be prepared by the flag state, listing the fourteen key areas and confirming that they reflect the national requirements, whereas Part II will be drawn up and maintained by the shipowner for each ship and will identify the measures adopted to ensure ongoing compliance between inspections. Ibid 3 46 F Piniella, JM Silos, F Bernal (2013) 75 47 690 unions representing over 4.5 million transport workers in 153 countries are members of the ITF. 48 Where there is any doubt as to whether particular categories of persons are to be regarded as “seafarers”, the matter must be determined by the flag state after consultation with the relevant ship owners’ and seafarers’ organisations. Repair and maintenance squads, for example, who spend prolonged periods on board the ship may be considered by the competent authorities to be seafarers under the MLC. 49 P Chaumette, 'El Convenio sobre el Trabajo Marítimo: cuarto pilar del Derecho Internacional Marítimo' (2010) 82 Rev Ministerio Trabajo 65, 76 50 PJ Bauer, 'The Maritime Labour Convention: An Adequate Guarantee of Seafarer Rights, or and Impediment to True Reforms' (2007) 8 Chi J Int Law 643, 655 51 ML McConnell, 'The Maritime Labour Convention - reflections on challenges for flag State implementation' (2011) 10 WMU J Marit Affairs 127, 151 52 P Chaumette (2010)



maritime labour through the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance, everything will, as ever, depend on its application in practice by the Flag States.53 The current response of States to the regulation of maritime work

The ICONS Report mentioned earlier had emphasized that most of the recent progress in tackling substandard shipping had arisen where a Port State or a regional group of States had taken a strong stand in enforcing international or local solutions on foreign ships. In the absence of better flag State compliance with international obligations, the likelihood of regional or unilateral port/coastal State intervention inevitably will increase.54 In fact, a new maritime labour regulation would not have been needed if the Flag States had fulfilled their responsibilities under those obligations established in the UNCLOS Convention, signed in Jamaica long ago in 1982. However, the reality has been a fragmentation of the supervision of labour conditions under which seafarers work and live in many of the world's vessels, and perhaps the MLC-2006 may go further in contributing to the global governance of maritime labour as intended by UNCLOS.

Flag States carry the primary responsibility for ensuring crew conditions meet international standards. Many flag States do so, but many others do not.55 Many flag States have increasingly delegated their responsibility for statutory inspections to classification societies or independent surveyors: often referred to as ‘recognized organizations’ (ROs). Classification societies perform an important public function, but the initial weakness, their Achilles’ heel as guardians of ship safety, remain because they are paid by the ship owners and compete for business: they ‘need’ to be cheaper, i.e. less rigorous, than their competitors, in order to stay in business. It is unreasonable for States and international organizations, like the ILO and IMO, to place increasing responsibility on Classification Societies, which operate for the benefit of the shipping industry, while at the same time leaving them totally exposed to unlimited liability in the event of major maritime accidents, in which they play a subsidiary role.56

Even though flag States have formally signed up to international standards, these are often not actually adopted and implemented due to the absence of suitable administrative infrastructure. The Classification societies are well placed to perform regulatory functions on behalf of some national administrations, provided they meet their obligations to ensure and certify that vessels themselves have met, and continue to meet, agreed international standards. The delegation of labour regulation offers potential for additional commercial opportunities for those classification societies prepared to acquire the necessary skills. It would also provide a solution for flag States that wish to apply international minimum standards, but do not have the resources to build their own administrative infrastructure to perform this function effectively. Furthermore, the same problem arises as that with the safety certificates - the almost obligatory ceding of responsibilities by the Flag States to the Recognized Organizations; in other words, these particular labour-related inspections will inevitably be “privatized”, with all the consequences implied by that. Another factor is that, in the Governments of countries of all types, including those with a strong maritime tradition, the labour inspectors show a certain reluctance in crossing the port ‘boundary’ and boarding a ship, as if they were afraid of challenging the theoretical sovereignty of a 53 F Piniella, JM Silos, F Bernal (2013) 76, 78 54 ICONS (2000) 166 55 ICONS (2000) 182, 183 56 JM Silos, F Piniella, J Monedero and J Walliser, 'The role of the Classification Societies in the era of globalization: a case study' (2013) 40 Marit Pol & Manag 384, 400



foreign State. Correcting this may require a change of mentality for the implementation of the MLC-2006, since it seems that the major part of these controls will fall, almost by default, on the Port State Control officers; however, the training of these PSCOs is essentially maritime and technical, and much less applicable to labour relationships and some of the juridical matters covered by the new Convention.57

Two very relevant aspects in the new MLC-2006 should be stressed. One is that, for the first time, the Convention grants ‘juridical status’ to seafarers, including mechanisms for real implementation and effective protection, not merely theoretical proclamations of rights; and the second key point is that the Convention incorporates the labour aspects of seafarers’ rights into Maritime Law, together with the commercial aspects (shipping) and those of maritime safety and marine pollution prevention, regulated generally by the IMO.58 Two relevant resolutions of ILO intended to support the promotion, ratification and effective implementation of the Convention have been adopted,59 namely, the Resolution concerning the development of guidelines for port State control (Resolution IV), and the Resolution concerning the development of guidelines for flag State inspection (Resolution XIII). However, the guidelines are only intended to provide supplementary practical information and guidance to States, as a practical resource that can be used by any government that finds them helpful: no obligations are stipulated.

In most cases, the labour-related inspections will be carried out by personnel who are already qualified under the existing international PSC arrangements, undertaken as provided for by the IMO conventions and under the corresponding regional MOU on port State control. However, in some countries it is possible these inspections would be carried out by an authorized officer who is not necessarily qualified as a PSC Officer for other purposes, for example, a maritime labour inspector. Until now, that possibility, which had been envisaged in most of the regional Memoranda of Understanding, has never been put into force; normally it is experienced seafarers who do this work, and in many cases it falls to a former Naval Engineer, a Captain or Chief Engineer, even occasionally a former Radio Communications Officer. One of the weaknesses of the MLC-2006 is that it does not set out the specific competences that PSC Officers must have, to be capable of implementing all its provisions.

With reference to the Port and Coastal States, the Paris MoU Committee adopted on May 28th (three months before the Convention will be in force) amendments to the Memorandum to include MLC-2006 as a relevant instrument.60 Guidelines for PSC under the Convention were also agreed, providing practical guidance for PSCOs to inspect ships starting 20 August 2013.

With reference to the Flag States, Panama, the world’s leading shipping register, has enacted National Legislation for regulating and applying the rules established in the MLC-2006. An Executive Decree, No.86, has been issued to ensure that seafarers know their rights and obligations established in their employment agreements before or during the recruiting process; and it includes other measures in order for seafarers to be able to review

57 F Piniella, JM Silos, F Bernal (2013) 77 58 J Rodrigo de Larrucea, España y la ratificación de la Convención del Trabajo Marítimo 2006 (Barcelona: Universitat Politècnica de Catalunya 2011) 59 94th (Maritime) Session of the International Labour Conference, February 2006 60 Paris Memorandum of Understanding on Port State Control (Paris MoU) - 46th Committee meeting in Valletta, Malta, from 20 - 24 May 2013



their employment agreements before and after these have been signed, and receive a copy of this document.61

There is a new element that remains pending for us to analyze. This concerns the prospects for addressing these issues by invoking the social and corporate responsibility of the ship owners, at least those that can be identified and found to be susceptible to argument or pressure. From this distance, it is difficult to specify which, if any, particular mechanisms of action might be effective. However, certain ship-owning companies might have an interest (but also some reluctance) in reaching relevant agreements with the trades unions that would allow progress to be made in making a reality of the explicit and implicit goals of the MLC-2006. For example, the owners of very specialised or technologically complex vessels, like liquefied gas carriers or luxury passenger cruise ships, could be expected to have strong interests in ensuring that officers and crews are of the highest calibre and function as efficiently as possible.... But this is, perhaps, just grasping at straws, in the light of the striking loss of the ‘Costa Concordia’. ...and the new ‘problems’ Security, rather than Safety, has been a term associated with maritime legislation only since the tragic terrorist attacks of 11 September 2001. Fear of terrorism has resulted, in the case of application to ships and ports, in two codes of management: the already-existing International Safety Management Code (ISM) and the new International Ship and Port Facility Security Code (ISPS), duplicating the tasks in an ISM Officer and an ISPS Officer, although in practice, in most ships, responsibility for both rests with the same figure of the Chief Officer; similarly, for safety and for security, there are two plans, two audits and two records.62

After so many years, this need for duplication is not so much real as for propaganda purposes, to demonstrate to the public, via the communications media, that actions are being taken to defend us against International Terrorism. But everything that runs counter to these policies is being criminalised, and a type of policy is being defended that effectively expands the predominance of the USA in the world, as has already been argued in previous papers.63 This is because the Government of the USA has, to a large extent, unilaterally imposed not only the cost-benefit analysis of this dual attribution of safety and security, but also the analysis of the real likelihood of these risks and the preventive efficacy achievable by implementing these measures.64

As part of the need to identify all the agents who intervene in maritime affairs, a series of measures have been developed that we can call global identification, both of persons and of vessels and port facilities. The most important step in the direction of global identification concerns the persons who are going to be on board a particular vessel. One result of the ISPS Code has been that in many ports, prohibitions have been imposed on the passage and even the shore visits of the crew members of ships. In fact many organisations concerned with the defence of seamen's interest have complained about

61 Art. 29 Executive Decree No.86 - February 2013 62 F Piniella, J Walliser and A Martínez, 'Global Maritime Security: the role of Spain as a Port State' (2008) V (3) Journal of Maritime Research 15, 32 63 J King, 'The security of merchant shipping' (2005) 29 Marine Policy 235, 245 D Stasinopoulos, 'Maritime Security – The Need for a Global Agreement' (2003) 5 Maritime Economics & Logistics 311, 330 64 R Banomyong, 'The impact of port and trade security initiatives on maritime supply-chain management' (2005) 32 (1) Marit Pol & Manag 03, 13



this.65 One way of resolving this situation may be the new Convention adopted at the 91st session of the International Labour Conference (in June 2003): the Convention on Seafarers’ Identity Documents, which is to replace the ILO Convention, which had been adopted in 1958. The new Convention establishes a more rigorous identity regime for seafarers with the aim of achieving effective security from terrorism and ensuring the freedom of movement necessary for the well-being of seamen and for their professional activities and, in general, to facilitate international commerce. However, in many respects, this involves a breach in the confidentiality of personal data through the use of identity cards that include biometric data, and the total control of personal movement; this policy is being imposed by the USA for anyone entering the country through its ports, airports, border crossing points, etc. These documents may come to replace a visa in those ports where they are required to be carried by crew members in order to go ashore.66

Moreover, these employees are also exposed what has been called ‘the criminalization’ of seafarers involved in Marine Pollution incidents (i.e. omissions or actions taken as integral aspects of their work can be treated as true criminal acts). If cited as defendants they have the right to due process, including access to legal advice, the presumption of innocence, and the right not to be arbitrarily detained. The recent sentence in the case of the ‘Prestige’ in Spain, openly criticised in the communications media, is an example of how initially the captain of the tanker that broke up and sank, Captain Mangouras67 was criminalized; however, later the judges concluded that the facts of the case did not constitute a crime. Other examples of nefarious actions occurring in recent years have revealed so-called ‘new problems’ in the harsh conditions suffered by seafarers in the course of doing their jobs.68 Until now, both the MARPOL Convention and the regime set out in UNCLOS made a clear distinction between accidental and intentional discharges of contaminants. National regulations, issued either directly or indirectly through regional directives, as in the case of the European Union, in certain aspects contradict the regulations in these two great International Conventions accepted by the great majority of maritime countries.69 Perhaps the most notorious example of such national legislation is the 2005 EU Directive.70 There 65 R Rodríguez Martos, El código ISPS y los derechos de los tripulantes (Barcelona: Stella Maris, 2004) 66 ILO C185 Seafarers' Identity Documents Convention (Revised) [2003] Geneva: International Labour Office Publisher <http://www.ilo.org/ilolex/cgi-lex/convde.pl?C185> 67 When Captain Mangouras reached land (Nov, 2002), he was interrogated and jailed. He was released (Feb, 2003) with bail posted in the amount of three million euros, but was obliged to remain in Spain. More than two years after the incident, he returned home to Greece. The Grand Chamber of the European Court of Human Rights upheld the bail amount as reasonable (Sept, 2010). In the final sentence of the regional court hearing the case, the Audiencia Provincial de La Coruña (Nov, 2013), it was found that there had been no criminal offence in the actions of the captain. He was however found guilty of disobeying the Spanish maritime authorities. It was found proven that he was clearly, firmly and repeatedly ordered to put the ship under tow. This was not done and so the order was issued by the Spanish maritime authority, responding to pressure from the government at ministerial level, that the vessel should move further out to sea, away from the coast of Galicia. It did so but then broke up and sank, discharging its full load of crude oil into the ocean 68 Some examples in recent years are: "Tasman Spirit", "Hebei Spirit", "Full City" 69 However, some authors advocate the Directive based on a fundamental European Community objective to give full effect to its environmental policy and to its sustainable transport policy, such as: F Pellegrino 'The introduction of penalties for ship-source pollution in community law: recent developments' (2011) 48 European Transport 99, 108 70 Council Regulation (EC) 35/2005 on ship-source pollution and on the introduction of penalties, particularly criminal penalties, for infringements, [2005] OJ L255/30 (as amended by Directive 2009/123/EC). The directive was supplemented by detailed rules on criminal offences and penalties set out in Council Framework Decision 2005/667/JHA, annulled by the European Court of Justice in October 2007. Directives 2008/98 and 99/EC complements the above directive as it obliges member states to provide for criminal penalties in their national legislation in respect of serious infringements of certain EU laws on the protection of the environment. However, member states have a degree of flexibility with regard to how the objectives set out in the Directive are met in their domestic law: Austria, Belgium, Bulgaria, Cyprus, Czech



is no doubt that seafarers, both officers and crew, suffer the consequences of the negative image that society has of their profession, due largely to maritime accidents, Flags of Convenience and sub-standard vessels.

Discussion: What issues lie at the core of deficiencies in the protection of seafarers?

Is it the globalised nature of the industry? Open Registries? or the regulatory control? Richard Goss described, some years ago, the dangers of monopolistic effects in shipping and the externalities involved in maritime safety, including pollution: 'it is not that shipping companies are bad, for many of them are very good. It is, rather, that some of them are bad and they are in competition with the good ones'.71

Cases where a shipowner has abandoned the ship’s crew members in a foreign port are very clear evidence that something is not working as it should.72 It is true, however, that some countries have put in place regulations against such abuses, including making it a criminal offence,73 and in other cases imposing sanctions via an administrative procedure of expropriation.74 Nevertheless the reality is that, when crew members do accuse the shipowner of abandoning them, especially if this is done through a trades union as the interlocutor (principally through the ITF)75 this is only the tip of the iceberg of a much more serious situation: despite suffering long periods without being paid or being victims of the inherent precariousness of their occupation, the crew members only denounce their employer when their situation is really desperate (e.g. when the vessel is embargoed for unpaid debts or detained after a PSC inspection). Given how badly seafarers are treated by some ship-owners, it is not sufficient merely to approve resolutions at meetings of the International Maritime Organization76 if there are no instruments to assure the necessary financial provisions to remedy such situations and hold the ship-owners to their responsibilities.

Nowadays, the only responsibility that many States seem to acknowledge publicly is that of ‘controlling the private controllers,’ in other words, supervising the Recognised Organisations (a term now used officially to describe Classification Societies and similar

Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and United Kingdom. 71 R Goss (2008) 145 72 P Chaumette 'Quelle garantie du paiement des salaires dans une activitè internationale?' (2007) 25 Annuaire de Droit Maritime et Océanique 125, 139 P Chaumette 'L'abandon des marins, une vision generale. Introduction au probleme de l'abandon des marins dans un port etranger' in Olga Fotinopoulou (ed), Derechos del Hombre y Trabajo Marítimo: Los Marinos abandonados, el bienestar y la repatriación de los trabajadores del mar (Eusko Jaurlaritza 2009) 73 Art.67 Code disciplinaire et pénal de la marine marchande (France) 74 In Spain, for example, the State takes ownership of any vessel abandoned within the service zone of a Spanish port. Vessels are considered abandoned when they have remained for six months berthed or anchored in the same place within a port without any appreciable activity, and without having paid the corresponding dues. The Administrative Board of the corresponding Port Authority is legally responsible for declaring that a vessel has been abandoned. 75 L Baz 'Perspectivas de abandono de marinos en España' in Olga Fotinopoulou (ed), Derechos del Hombre y Trabajo Marítimo: Los Marinos abandonados, el bienestar y la repatriación de los trabajadores del mar (Eusko Jaurlaritza 2009) 76 Resolution IMO A.930(22) adopted on 29 November 2001: Guidelines on provision of financial security in case of abandonment of seafarers Resolution A.931(22) adopted on 29 November 2001: Guidelines on shipowners' responsibilities in respect of contractual claims for personal injury to or death of seafarers



entities) so that they comply with ethical standards. The process of globalization in the maritime transport industry can be considered to be practically completed: the world fleet is concentrated in a limited number of Flag States. Ship-owners using the less rigorous Open Registries still run certain commercial risks (resulting from the detention of a vessel under the Port State Control system, based on the mechanisms put into practice in most ports of the world, principally through the MoUs of Paris, Tokyo and the USA), and since many vessels are owned and operated by large international maritime transport companies, they may be persuaded to treat their crews better to enhance or protect their reputation for corporate social responsibility.

The Classification Societies have a decisive role to play in this process of improving the treatment of crews. They have a vital interest in ensuring that their inspection and monitoring of ships is up-to-standard, and that their name is not associated negatively with deficient vessels listed in the rankings of Port State detentions, not only for criteria of efficiency but also for the social responsibility that they themselves should assume, given their important role in the maritime transport industry.

The European Directives adopted 77 state that the MLC 2006 sets out minimum global standards to ensure the right of all seafarers to decent living and working conditions, irrespective of their nationality and irrespective of the flag of the ships on which they serve, and aims to establish a level playing field. This leaves open the possibility for better control systems to be established. To implement an effective system for monitoring mechanisms, including inspections, under these Directives, a Member State can, where appropriate, grant authorisation to public institutions, or to other organisations within the meaning of Regulation 5.1.2 of MLC 2006, under the conditions set out therein.

The protection of seafarers is an issue to be tackled within a new scenario where i is not realistic to press for action to reverse or slow down the process of Open Registries. It will be more effective, potentially, to consolidate inspection and control mechanisms sufficient to ensure compliance with existing international agreements. Each State needs to put into effect sufficiently clear and detailed regulations and standards in matters concerning the working conditions of seafarers.

It is doubtful whether the MLC is going to make effective the resolutions of the IMO and the efforts of the Joint Maritime Commission of ILO, that are aimed at stopping or reducing the abandonment of crews in foreign ports, taking this as a wider phenomenon including any serious non-compliance of the contractual obligations (e.g. non-payment or persistent delays in payment of salaries).

Although Part II of the MLC Convention recognizes the right of seafarers to repatriation in the terms and conditions specified in the Code, this line of action had already been stipulated in the ILO Convention Nº166, 78 but ratified by only a few countries to date.

Perhaps, as some authors 79 have noted, this could mean that in the negotiation of the MLC itself, it would be necessary to make more flexible the regime of repatriation established in

77 Council Regulation (EC) 13/2009 agreement on the Maritime Labour Convention of 16 February 2009 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC, [2009] OJ L302/32 Council Regulation (EC) 54/2013 concerning certain flag State responsibilities for compliance with and enforcement of the Maritime Labour Convention, 2006 [2013] OJ L329/56 78 Repatriation of Seafarers Convention (Revised), [1987] (ILO Convention No. 166)



Rule A2.5 80, with a double level of obligation (or what could be called a chain of responsibilities): a first part by which the Flag States would require their ship owners to provide the corresponding financial guarantees, and a second part by which the obligation of these shipowners would always be incorporated in a necessary national or regional regulation (as in the case of the European Union).

The doubts are reasonable and, at the present time, the new Directive 2013/54/EU remains a general framework that requires greater detail; it depends fundamentally on the efforts made by the Port States in inspecting and controlling vessels. This is the line of approach that we have argued in this article is the cornerstone in the defence of the working rights of the seafarer. As Fotinopoulou states:

this requires a change in the distribution of the State powers in the governance of maritime navigation set out in the UNCLOS, constituting the transfer of competences from the Flag State to the Port State. 81

Concluding

Historically the occupation of seafarer has, in most countries, been associated with the more marginal strata of society, with piracy, smuggling and all sorts of other delinquencies. As a result, the seafarer's work has been seen and treated as different from that of other employees of commercial companies and entities. The job of seafarer has been left at the margins of many of the social advances from which onshore employees have generally benefited. The Industrial Revolution and above all, the harsh realities hitting the headlines, like the sinking of particular vessels (e.g. the Titanic, Torrey Canyon, Amoco Cadiz, Exxon Valdez, and others) have gradually focused serious attention on dealing with vessels that are sub-standard in respect of structural safety (SOLAS), on the prevention of marine pollution (MARPOL), and even in respect of crew training. Notable advances have been made in bringing all States into line with similar policies on the issues associated with the needs for the personnel on board to possess the competences for performing the serious work of handling a modern cargo or passenger vessel efficiently and safely (STCW). However the social conditions continue to be a clear deficit in the profession of seafarer. Their protection, or more truthfully, their lack of protection, in a huge and globalized industry, has brought to light some really anachronistic situations that are disgraceful for the supposedly modern, enlightened times in which we live: situations that some bodies such as the ITF have accurately described as slavery.

With the new Convention MLC-2006, the door is opened to a new scenario in the practice of States, to put seafaring on a basis equal to that of other distinctive professions and occupations, with regard to the conditions of living and working of the persons employed. It would, however, be very optimistic to think that the Flag States, most of them now

79 A Vicente-Palacio, 'Obligaciones y responsabilidades en materia de repatriación. Grado de adecuación de la normativa española a las previsiones del CTM 2006' (2009) 82 Revista del Ministerio de Trabajo e Inmigración 291, 340 80 MLC, 2006: Regulation 2.5 – Repatriation. Purpose: To ensure that seafarers are able to return home 1. Seafarers have a right to be repatriated at no cost to themselves in the circumstances and under the conditions specified in the Code. 2. Each Member shall require ships that fly its flag to provide financial security to ensure that seafarers are duly repatriated in accordance with the Code. 81 O Fotinopoulou, 'El Convenio sobre Trabajo Marítimo y el abandono de marinos en puertos extranjeros' (2009) 82 Revista del Ministerio de Trabajo e Inmigración 219, 244



Open Registries, are going to put into effect more rigorous policies to control the abuses that are currently being committed in the recruitment and contracting of crews. Everything indicates that we will have to rely on the mechanisms put into operation by the Port or coastal States (through the MoUs of Paris, Tokyo or Viña) to enforce compliance with these measures. But difficulties will always arise in conducting an inspection exercise on vessels regarding situations that concern the legislation of foreign countries and such widely differing labour laws.

Other complicating factors in this scenario are the international pressures to which the seafarer is subjected because of being a foreigner; the multicultural mixture of the crews; and the suspicion that these persons are a ‘dangerous element,’ given the battery of rules and regulations that need to be observed on security, such as the ISPS Code and other maritime protection regulations. In some cases, these controls are so severe that minor or irrelevant infractions can mean that the crew members are not even allowed a few hours onshore after spending weeks or months at sea. There remains, indeed, a great deal of work still to be done on behalf of these marginalised workers who play a vital role in today’s global economy.

000287F_1 070715

ARTICLES: ‘Africanizing Bilateral Investment Treaties (BITS): Some Case Studies and Future Prospects of a pro-active African Approach to International Investment’ FRANCESCO SEATZU & PAOLO VARIU 1 ‘Egyptian Political Transformations: Mubarak to the Military, the People and Morsi and Morsi to the Military and the People? – Transforming International Recognition of States and Governments?’ MOHAMMAD M. HEDAYATI-KAKHKI 23 ‘The Protection of Seafarers: State Practice and the Emerging New International Regime’ FRANCISCO PINIELLA; JOSE MARIA SILOS; & FRANCISCA BERNAL 43 DIGEST OF INTERNATIONAL LAW: ‘Revitalizing the ICCPR Regime: Some Reflections on Recent Developments’ KINFE MICHEAL YILMA 71 BOOK REVIEWS: Ligeti Katalin (ed 2013), Toward a Prosecutor For the European Union, Hart Publishing

- Matthew Nwankwo Chidebe 81 BRUNEL LAW SCHOOL - BRUNEL UNIVERSITY LONDON