DOSSIER

 

 

Crew Welfare: Fair treatment of seafarers


Change is in the air concerning the fair treatment of seafarers, believes Hilton Staniland, Professor of Maritime Law at the Institute of Maritime Law, University of Southampton and member of the Seafarers’ Rights International (SRI) Advisory Board.

His comments follow hard-hitting political commitments and an expert panel discussion at an international workshop held at the International Maritime Organization (IMO) to mark the 2017 Day of the Seafarer.

The most recent major survey carried out into the fair treatment of seafarers and recently republished by SRI found the rights of seafarers are often subject to violation and that there is widespread concern among seafarers about criminalisation. These rights are enshrined in the Guidelines on fair treatment of seafarers in the event of a maritime accident (the Guidelines), adopted by the IMO and the International Labour Organization (ILO).

Disappointingly over 81% of seafarers questioned said they had not been treated fairly when facing criminal charges, and 46% said they would be reluctant to cooperate fully and openly with casualty inquiries and accident investigations.

The survey was conducted six years after the drawing up of these much-heralded Guidelines and to see this level of concern among seafarers, only a few years after they were put in place has caused much consternation.

However,  today it would appear the message is starting to hit home, at least to an estimated two thirds of Member States of the IMO because a second survey, conducted by Prof Staniland, concerning implementation of the Guidelines into national laws has thrown up some very interesting findings.

Responses to the survey sent to every Member State of the IMO fell into three broad categories of roughly equal size, explained Prof Staniland. The first group said they had given effect to the Guidelines explicitly in their legislation, and when you look at how these States have implemented the Guidelines, there is a surprisingly large degree of commonality in the type of legislative techniques used, Prof Staniland clarified.

“The second group of countries said that they had not explicitly given effect to the Guidelines because they felt that their laws already adequately protect seafarers. Many quoted their membership of Human Rights Conventions, the Maritime Labour Convention, as well as their adherence to relevant provisions in MARPOL.”

“The third group said that, while they were still studying the Guidelines, they found aspects of the Guidelines ambiguous, difficult to interpret, and were not sure how to implement the Guidelines into their national law,” he said.

While countries in the first two groups – effectively two thirds of respondents – have either implemented the Guidelines, or feel they do not need to because their laws already give effect to the essence of the Guidelines, it is the third group which Professor Staniland believes is of immediate interest. Because this group of countries is effectively asking for assistance in implementing the Guidelines.

Prof Staniland said: “It seems to me that certain States can assist other States who have requested assistance concerning the Guidelines, and perhaps the best way they can do so is to share their approach to implementation of the Guidelines,” he said.  It is perfectly understandable for some countries to seek assistance in implementing the Guidelines, he continued, “because the Guidelines as welcome as they are, are not always a model of clarity. There are issues there that some may regard as ambiguous.”

“Sharing practices amongst States gives those countries asking for assistance some assurance that this is not a theoretical exercise, but a practical demonstration of how implementation of the Guidelines can be achieved. It would also lead to more international harmonisation, uniformity of interpretation and application, and would give rise to greater reassurance that the Guidelines would be applied in particular ways,” he stressed.

This was a point Prof Staniland raised when he addressed the recent international workshop of over 50 Member States at the IMO: a workshop that was addressed by key speakers including Kitack Lim,  IMO Secretary General . Sitting on a panel chaired by Dr Kofi Mbiah, Chair of the IMO Legal Committee, Prof Staniland discussed guidance for States on implementing or reviewing implementation of the Guidelines. 

His presentation was followed by presentations from Sir Kenneth Keith, former Judge of the International Court of Justice; Judge Tom Mensah, first President of the International Tribunal of the Sea; Justice Noel G. Tijam, Justice of the Supreme Court of the Philippines; Elizabeth Howe OBE, President International Legal Assistance Consortium, former General Counsel of the International Association of Prosecutors; Stephen Clinch, Chief Inspector, Marine Accident Investigation Branch, UK; and Leslie Hemachandra, IMO Resource Person and Member State Lead Auditor.
Prof Staniland explained: “Drafting guidance on implementation of the Guidelines presents some difficulties because you are writing for a notional State, not a particular State. And that notional State could have any one of a number of legal systems and any combination of legal rights enshrined in its system.  The resolutions accompanying the Guidelines, agreed by the Assembly and other bodies at the IMO, speak of the Guidelines not interfering with the criminal and civil laws of the country concerned.

“That immediately throws up very stern challenges. In many respects, giving effect to the recommendatory Guidelines is technically more challenging than drafting legislation that will give effect to a mandatory instrument because there the tramlines are laid down for you. But in this case, the Guidelines are recommendatory and it is clear they should not interfere with existing laws in the country”, he said.

A recommended approach, however, is to say that a public authority or investigating authority conducting an investigation following a maritime casualty shall take into account the relevant provisions of the Guidelines in accordance with national legislation.  “Although this does not in all cases ensure the application of the Guidelines, it does ensure that the Guidelines must be brought to the attention of the Court and the lawyer concerned can argue that the Guidelines should be observed by the Court provided they do not interfere with the other laws of the State.”

Recent events show there is strong international commitment among States for the implementation of the Guidelines.  The Guidelines are essential in advising what port or coastal states should do to ensure an investigation undertaken to determine the cause of a maritime accident in their jurisdiction is conducted in a fair and expeditious manner.
The Guidelines also outline what steps flag and seafarer states should take to achieve the same aim as well as assist ship owners in what action they should take in such a situation. As the Guidelines clearly state: “Ship owners have an overriding duty to protect the rights of the seafarers employed or engaged, including the right to avoid self-incrimination and to take steps to ensure their fair treatment.”  Importantly, the Guidelines also offer guidance to seafarers to ensure they are adequately protected.
In closing, what is the hope ahead for ensuring the fair treatment of seafarers?
Prof Staniland again: “Keeping the issue at the top of the industry’s agenda is crucial especially if owners, managers and seafarers are to fully understand the role they play, and in particular if port and coastal states and flag states are to be fully resourced to ensure observance of the Guidelines. I would hope that the third group who have spoken about the difficulties in giving effect to the Guidelines may find some assistance in the guidance. In theory, this could encourage 100% of countries to pay attention to the Guidelines in one way or another.”
“Our work in this area will continue building on the work already done and advancing the work at regional and national level where more concrete recommendations can be given on how best countries can implement the Guidelines and have the right laws in place in the event of a maritime casualty investigation occurring in their jurisdiction.”

This was confirmed by Deirdre Fitzpatrick, Executive Director of SRI, who stressed: “We want to raise awareness of the Fair Treatment of Seafarers at international, regional and local levels.  The next step will be to run regional workshops outside the UK, and we have already had offers from governments to host similar workshops in their own countries.

 

 

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