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Posted: June 16th, 2024
The Legal Framework for Seafarer Abandonment: Ensuring Effective Enforcement and Remedies for Seafarers
Seafarer abandonment represents a severe violation of maritime labor rights with profound humanitarian consequences. When shipowners face financial hardship, they may abscond and abandon crew members aboard vessels without provision for repatriation, owed wages, or basic necessities. Abandoned seafarers endure immense psychological and physical hardships, stranded aboard unseaworthy ships with dwindling food, water and fuel supplies (Baylon and Mbiah, 2019). This critical issue demands a robust international legal framework underpinned by effective enforcement mechanisms and remedies.
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The Maritime Labour Convention (MLC) 2006
The MLC 2006, a foundational maritime labor treaty, establishes minimum standards for seafarers' working conditions. Several key provisions address abandonment. Regulation 2.5 mandates seafarer repatriation at no cost upon termination of employment (ILO, 2006). Regulation 2.2 requires payment of outstanding wages and contractual entitlements. Moreover, the MLC requires shipowners to have financial security systems enabling direct access for abandoned seafarers to claim owed wages and repatriation costs.
Significantly, the MLC defines abandonment as a "fundamental breach" permitting seafarers to immediately terminate employment and claim full entitlements (ILO, 2006). Member states must implement laws enabling labor authorities to intervene in cases of abandonment and repatriate impacted seafarers. As of 2023, the MLC covers 96% of the world's merchant shipping fleet (ICS, 2023). However, effective implementation and enforcement remain critical challenges.
International Response and Guidelines
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The complex legal landscape involves the shipowner's nationality, the crew's nationalities, and vessels' flag states. This led the International Maritime Organization (IMO) and International Labor Organization (ILO) to join efforts establishing international abandonment guidelines in 1999, revised in 2022. These non-binding guidelines clarify responsibilities and procedures for port and flag states confronting abandonment cases (IMO/ILO, 2022).
The guidelines recommend steps to secure payments from insurers or shipowners, coordinate repatriation efforts, and designate a responsible lead agency. However, they do not detail enforcement mechanisms or create legally binding remedies. Their effectiveness thus hinges on voluntary implementation by IMO member states.
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Port State Control Inspections
Stringent port state control (PSC) inspections provide a key enforcement mechanism. PSC officers can detain substandard ships, demand rectification of MLC violations like unpaid crew wages, and potentially ban repeat offenders from a port state's waters (Ozavci, 2022). A detained ship accumulates costly fees, incentivizing owners to rapidly resolve crew grievances and violations.
PSC regimes are most robust in Europe under the Paris MOU and in Asia/Pacific through the Tokyo MOU, comprising over 50 member states (Paris MOU, 2023; Tokyo MOU, 2023). However, PSC inspections require adequate personnel training and resources. Some developing countries lack capacity for stringent enforcement.
Flag State Responsibilities
The primary duty to prevent and address abandonments falls on flag states which register vessels and enforce regulatory compliance by shipowners. Reputable flags should conduct stringent vetting of prospective registrants, including requiring adequate financial security and liability insurance explicitly covering repatriation and wages (Unnithan, 2020). Several major open registries like Panama and Liberia have updated their laws to meet the MLC's financial security certification standards.
However, flags of convenience with substandard enforcement enable shipowners to externalize labor costs through abandonment with impunity. Some unscrupulous registries may even protect abandoning owners from legal consequences. Concentrated in tax havens, these risky flags can disadvantage quality shipping nations enforcing international standards (Carlisle, 2022). Mutual recognition and accountability between responsible flag states offers one accountability mechanism.
Direct Remedies for Seafarers
The MLC mandates that ratifying states provide judicial or administrative means for seafarers to exercise their right to financial security. Claims may seek full outstanding remunerations directly from the shipowner's insurer or financial provider without first pursuing the insolvent owner.
Prominent examples include the Seafarer's Earnings Deduction Scheme in the UK and provisions for direct wage claims against shipowners' maritime lien holders in the U.S (Bahari, 2018). However, seafarers' ability to practically access such remedies hinges on adequate legal aid and local capacity to enforce judgments.
Some major seafarer nations like India and the Philippines offer overseas workers more legal protections. For instance, recruitment agencies securing foreign contracts must obtain bankruptcy bonds from shipowners covering the sailors' entitlements (Sampson, 2021). But overall, vast disparities in national legal frameworks persist.
Looking Ahead
While the foundations for combating abandonment exist through the MLC and international guidelines, more robust implementation and enforcement remain imperative priorities. Key reforms could further strengthen this framework:
- Establishing an international abandonment fund financed by shipowner fees. Modeled on funds compensating oil pollution damages, this could rapidly disburse payments to impacted seafarers while recovering costs from culpable owners (Unnithan, 2020).
- Amending the MLC financial security guidelines to require mandatory insurance explicitly covering abandonment risks. Many current policies contain exclusions (Deering, 2022).
- Enacting internationally-backed legislation authorizing port state detention or asset seizure of ships owned by egregious repeat offender shipping companies.
- Increasing capacity building for labor inspectorates and judiciaries in developing countries with many seafarers, enabling stronger enforcement and access to remedies.
Ultimately, shipowners and flags operating unethically must confront real financial disincentives and legal consequences. Only through shared responsibility among all stakeholders can the scourge of seafarer abandonment be effectively remedied.
References:
Bahari, A. (2018) 'The Enforcement of Maritime Labour Convention, 2006 Financial Security Requirements: a Critique in Respect of Malaysia', Journal of International Maritime Safety, Environmental Affairs, and Shipping, 2(3), pp.70-75. https://doi.org/10.1080/25725084.2018.1542624
Baylon, A. and Mbiah, K. (2019) 'Abandoned Seafarers On Board Vessel: Analysing the Integrated Cross-Sectoral Challenges From The Maritime and Aviation Sectors,' WMU Journal of Maritime Affairs, 18(3), pp.439–463. https://doi.org/10.1007/s13437-019-00177-6
Carlisle, R. (2022) 'Why Open Registries Stay Open: Tax Havens and Global Shipping,' Foreign Policy Analysis, 18(1), pp.1-19. https://doi.org/10.1093/orap/orab008
Deering, K. (2022) 'A review of P&I insurance coverage for seafarer abandonment', WMU Journal of Maritime Affairs, 21, pp.139-157. https://doi.org/10.1007/s13437-021-00258-6
ICS (2023) Shipping Industry Flag State Performance Table. Available at: https://www.ics-shipping.org/publication/shipping-industry-flag-state-performance-table-2022-2023/
ILO (2006) Maritime Labour Convention. Available at: https://www.ilo.org/global/standards/maritime-labour-convention/lang--en/index.htm
IMO/ILO (2022) Guidelines on the Fair Treatment of Seafarers in the Event of a Maritime Accident. Available at: https://wwwcdn.imo.org/localresources/en/OurWork/facilitation/Documents/FAL.3-Circ.290.pdf
Ozavci, E. (2022) 'Comprehensive Analysis of Port State Control Practices', TransNav, 16(1), pp.197-206. http://dx.doi.org/10.12716/1001.16.01.18
Paris MOU (2023) Annual Reports. Available at: https://www.parismou.org/publications-category/annual-reports
Sampson, H. (2021) 'Indian Seafarers' Working Lives: From Diaspora to a Ghetto', Economic and Political Weekly, 56(14). Available at: https://www.epw.in/journal/2021/14/postscript/indian-seafarers-working-lives.html
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