Seafarers compensation and shipowner liability - Nautilus ...

Ms Rosemary NelsonSeafarer Safety and Health BranchMaritime and Coastguard AgencyBay 1/29 Spring Place105 Commercial RoadSouthampton SO15 1EG27 th July 2012Dear Ms NelsonRe: Consultation response:- Maritime Labour Convention, 2006 (MLC)Titles 2.6 and 4.2 Seafarer compensation and Shipowner liabilityNautilus International is the trade union and professional organisation representing 24,000 (18,000in the UK) Masters, Officers, Officer Trainees (cadets) and other marine professionals includingMarine Pilots and YTS personnel. Nautilus is very grateful for the opportunity to respond in thisconsultation and would make the following comments.Comments on paper headed ‘SECTION 2 – TITLE 2.6 AND 4.2 SEAFARER COMPENSATION ANDSHIPOWNER LIABILITY’Regarding the point made at sub-paragraph 3.9 of the paper headed ‘Section 2’ Nautilus is notconvinced under the current drafting that draft regulation 7 would be subject to the limitation setout in section 38(3)(b) of the MSA 1995. The reason for this is that draft regulation 7 may be takento be a freestanding regulation without being subject to section 38 of the MSA 1995. HoweverNautilus would ask the DfT lawyers to look closely at this because the Union does not believe thatthe entitlement in draft regulation 7 should be subject to the conditions set out in section 38(3)(b)so that a seaman will not be entitled to a day’s pay when he was able to obtain suitableemployment for that day but unreasonably refused or failed to take it. The reason for this is thatthe MLC does not contain such a provision. In most cases the loss or foundering of the ship will notbe the fault of individual seafarers’ making a claim so they should not suffer financially from beingunemployed through no fault of their own.Regarding the question under sub-paragraph 13.11 in the paper headed ‘Section 2’ on the maximaand/or minima then Nautilus would hope for this to be set out in a MSN which would impose a legalobligation on the shipowner and also has the advantage of being more flexible and easier to amendthan secondary legislation.

Drafting amendments to reflect changes in other areasSub-paragraphs 3.12, 3.13, 3.14 and 3.15 – Nautilus has no objection to these proposals.However as draft regulation 5(1)(b) inserts subsection (1A) into the MSA 1995 and disapplies section38(1) to MLC ships this does not appear to be relevant to MLC issues.Burial/CremationSub-paragraph 3.18 – Nautilus agrees with the proposal that the requirement for burial/cremationto be outside the UK is removed.Sub-paragraph 3.19 – Nautilus agrees that “burial” should include “cremation”.Financial SecurityRegarding the requirement in Standard A4.2.1, paragraph (b), for shipowners’ to provide financialsecurity Nautilus does not believe that self insurance within the shipping industry should beacceptable. Over recent years there have been many cases of shipowners’ becoming insolvent andabandoning seafarers’ while often owing them substantial amounts of wages over many months.Nautilus is therefore of the view that the only safe means of making sure that such financialsecurity is available would be by the shipowner taking out an insurance policy with a recognisedinsurance company to cover the relevant risks and evidenced by a certificate of insurance from thatprovider. If self insurance was permitted then the flag State may suffer financially by having tocompensate if the self insurance is inadequate.Comments on The Merchant Shipping (Maritime Labour Convention) (Shipowners’ Liabilities[Titles 2.6 and 4.2]) Regulations 20xx (the Regulations)Draft regulation 2 – Interpretation - definition of “shipowner” - Nautilus has concerns about thedefinition in the draft Regulations recalling that the interpretation of “shipowner” within the MLChas been subject to considerable debate. In the draft definition under limb (a) a problem couldarise if the maritime labour certificate is otherwise valid but yet the person identified is theshipowner is incorrect therefore Nautilus requests that the phrase “person identified” should beamended to read “person properly identified”. As regards limb (b) then this is a partial copy-out ofthe definition within the MLC, Article II, paragraph 1(j), but it misses out the word “agent”.Nautilus would propose that the whole definition is replaced with: “shipowner” “means the ownerof the ship or another organisation or person, such as the manager, agent or bareboat charterer,who has assumed the responsibility for the operation of the ship from the owner and who, onassuming such responsibility, has agreed to take over the duties and responsibilities imposed on theshipowner by the legislation implementing the Maritime Labour Convention, 2006, regardless ofwhether any other organisation or persons fulfil certain of the duties or responsibilities on behalf ofthe shipowner.”Draft regulation 2 – Nautilus is concerned that the definition of “wages” excludes bonuses.Nautilus would request that bonuses are included so that these may be categorised as wages and somay be recoverable in the employment tribunal which is a low cost means of pursuing a claim.Draft regulation 3 – Meaning of “seafarer” – Nautilus would wish to see a copy-out of thedefinition in the MLC, Article II, paragraph 1(f). This definition does not include the words used indraft regulation 3 “on the business of the ship” which could narrow the MLC definition and invite

arguments from shipowners that non-traditional maritime occupations such as hotel staff on cruiseships are not covered.Nautilus does not agree that those persons referred to in draft regulation 3(1)(b) – e.g. - persons onboard a sail training vessel other than for training – should be excluded from any of the legislationimplementing the MLC and therefore we would request that this be remedied so that they areincluded.Draft regulation 7 – Shipowner liability for seafarer unemployment and losses following wreckor loss of ship - please see Nautilus’ comments above which were made under the consultationpaper entitled “Section 2 – Title 2.6 and 4.2 seafarer compensation and shipowner liability”.Draft regulation 7(4)-(5) – Nautilus does not see why regulation 7(5) should limit the compensationpayable under regulation 7(4) to any amount stated in the seafarers employment agreement.There is no such provision in the MLC. Instead Nautilus would ask that current draft regulation 7(5)is replaced by the following: “Paragraph (4) is without prejudice to any claim for personal injury ordeath and as regards any other type of claim the shipowner must pay to the seafarer compensationto the full extent of his loss.”Draft regulation 7(5) – The MLC does not provide for such losses to be limited by a clause in theSEA. Nautilus requests that this be redrafted to make it clear that the compensation should equalthe value of the loss, e.g. whether that be lost property, etc. Under MLC, Guideline B2.6.1,paragraph 1, it is arguable that it is only wages which can be limited to two months and not othertypes of losses such as compensation for lost property.Draft regulation 7(6) – Nautilus requests that it be amended to read “A seafarer may recover anysum due from the shipowner under paragraph (2) as a statutory claim for wages under Part II of theEmployment Rights Act 1996 (ERA 1996) or (where the employment has been terminated forwhatever reason) a contractual claim for wages in the employment tribunal and may also recoverany sum due under that paragraph or paragraph (4) as a civil debt.” Such an amendment wouldcomply more with Guideline B2.6.1, paragraphs 1 and 2, which requires that seafarers have thesame legal remedies for recovering such indemnities as they have for recovering arrears of wagesearned during their service. Seafarers on UK ships are entitled (on meeting certain conditions) torecover arrears of wages under the ERA 1996 in an employment tribunal and it is desirable thatthey have this right imported into these Regulations as proceeding in the tribunal is much cheaperthan taking action than through the civil court (which should still be available in addition).Draft regulation 8(2) - Maritime Labour Convention financial security requirement – Nautilusrequests that the words “or other security” be removed as it takes the view that only “a contractof insurance” will be adequate.Draft regulation 8(4) – the sanction should only be against the shipowner and should be no lessthan a fine of level 5 on the standard scale which is £5,000. There should be no sanction againstthe master as the obligation imposed is on the shipowner.Draft regulation 9(1)(a)(ii)- Shipowner liability for wages following sickness or injury sustainedby seafarer – this sub-paragraph should be omitted as it does not appear in the MLC and it maylimit the entitlement for a seafarer to be compensated in respect of sickness and injury to a periodshorter than the minimum of 16 weeks permitted under Standard A4.2, paragraph 4, which is notcontingent on the SEA continuing.

Draft regulation 9(4)(a) – there appears to be a typographical error here as Nautilus is of the viewthat this should refer to the Social Security Contributions and Benefits Act 1992 (not 1982 asstated).Draft regulation 9(7) – Nautilus would prefer this to read “A seafarer may recover any sum duefrom the shipowner under paragraphs (2) or (3) in an employment tribunal or as a civil debt.” Suchan amendment would enable the seafarer to take advantage of a quick and cheap resolutionthrough the employment tribunal.Draft regulation 10(3) - Shipowner liability in respect of burial or cremation of seafarer –Nautilus would ask that this sub-paragraph be deleted as the Union does not see why, in respect ofnon-UK ships, the duty to pay the expenses for a cremation should be excluded.Draft regulation 12(1)(b) - Detention of United Kingdom ships and other ships without MaritimeLabour Certificates– it is not clear why this paragraph only refers to regulation 8. The paragraphshould be widened to catch all breaches of the MLC which have been implemented within theseRegulations and certainly include references to regulations 7, 9 and 10.Draft regulation 12(5) – there should be added at the end after the words “of that State” thewords “and invite a representative of that State to be present, if possible, requesting that State toreply within a prescribed deadline. The authorised officer shall also inform forthwith theappropriate shipowners’ and seafarers’ organisations in the port State.” The insertion of thesewords is necessary to fully comply with MLC, Standard A5.2.1, paragraph 6.Draft regulation 12(6)(c) – the words “or master” should be removed as it should not be themaster’s duty to pay a security but only that of the shipowner.Draft regulation 12(6)(d) – Nautilus does not believe that there should be any offence created inrespect of the master – so this should be removed.Draft regulation 12(7) – there appears to be a typographical error here and the reference toparagraph (7)(c) should probably be a reference to paragraph (6)(c).Draft regulation 12(7)(b) – the reference to the possibility of the master being convicted should beremoved. The only person liable to a charge under these Regulations should be the shipowner.Draft regulation 12(8) – again there appears to be a typographical error and the reference toparagraph (7)(c) should probably be a reference to paragraph (6)(c). Furthermore the reference tothe possibility of the master being convicted of an offence under regulation 8 should be removed.The only person liable to a charge should be the shipowner. The reference in draft regulation 8(a)to costs or expenses ordered by the court to be paid by the shipowner or master should be alteredto remove any reference to the master.Draft regulation 14(1)(b) - Detention of non-United Kingdom ships with Maritime LabourCertificates – it is not clear why there is only a reference here to breaches of the requirements ofMLC, Standard A4.2.1(b) which relates only to the provision of financial security. TheseRegulations cover other aspects of the MLC and where there are serious breaches then the shipshould also be liable to be detained. Therefore this provision should also relate to those other MLCprovisions which are covered within these Regulations and certainly include references to allaspects of MLC Regulation 2.6 and Standard A2.6.

Draft regulation 14(4) – there should be added after the words “maritime authorities of thatState” the following words “and invite a representative of that State to be present, if possible,requesting that State to reply within a prescribed deadline. The authorised officer shall alsoinform forthwith the appropriate shipowners’ and seafarers’ organisations in the port State.” Thisis necessary to fully implement MLC, Standard A5.2.1, paragraph 6.I hope that the above comments are helpful. Should you have any questions or require anyclarification then please do not hesitate to contact me.Yours sincerelyCharles BoyleDirector of Legal Services