Maritime and fisheries contracts of employment: British style
| Autor | Jo Carby-Hall |
| Cargo del Autor | Director of International Legal Research in the Centre for Legislative Studies. Univesity of Hull (Reino Unido) |
| Páginas | 297-342 |
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Both the fishing and shipping industries are of significant economic importance to maritime nations such as the United Kingdom. The British laws governing fishermen and seamen working on fishing vessels and ships respectively have been, for the past two and a half centuries, protective of the crews working on those ships. Prior to that period however seamen had little protection.
Fishermen and seamen were very much exploited through the centuries. They had very few rights and those rights which they enjoyed, were either not clearly spelt out, or if mentioned to them at the beginning of the voyage, were not fully understood549by the crew members. Furthermore, once the vessel went out to sea the unscrupulous master -of which there were many-, often made up his own rules in
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respect to the crew members’ terms and conditions of employment, wages and other meagre rights which they enjoyed thus endangering their health and safety brought about by the perils of the sea. Drunkenness prevailed amongst both masters and crews resulting in severe insubordination, because of the lack of discipline on board, bullying, serious misbehaviour and uncouth conduct. In addition to the severe exploitation of crew members, accommodation on board was poor and their employment was generally of a casual nature. The situation of crew members could therefore be epitomised as being badly looked after, severely exploited, disorganised, insecure and subject to the risks, hazards and perils inherent in their kind of work.
So as to protect seamen against exploitation and hardship and to ensure that seamen were aware of their legal rights and obligations, the formal practice of articles of agreement was introduced and was operative over a period of some century and a half. The procedure under previous laws was both lengthy and complicated. Written articles of agreement had to be signed by the master of the ship, and either read or brought to the seaman’s attention. The content and meaning of those articles had to be explained to the seaman in some detail550. Having understood these articles the seaman’s consent had to be obtained before he signed the articles. The signing procedure had to be witnessed by the Marine Superintendent551who acted as president of this whole procedure.
By reason of the sad situation described briefly above, legislative intervention became necessary so as to regulate (a) the employment conditions of mariners and (b) the skills required to enable them to carry out effectively their work at sea.
The seamen’s strike of 1966 was the catalyst for the Pearson Report of 1967552set up (a) to inquire into the reasons why the strike took place, (b) to examine the law regarding the employment of seamen and (c) to make recommendations on measures to be taken so as to avoid future strikes. The Merchant Shipping Act 1970 was enacted as a result of this Report. At this stage, it is important to note that neither the Pearson Report nor the laws governing the basic principles of employment of seamen were changed in any radical manner553.
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An important point should be made at the outset in that the two kinds of employment contracts, namely those of mariners and those of shore-based employees, - although based on the same legal contractual principles554, -are not similar. Mariners’555contracts of employment differ considerably from those of shore- based employees. The principal reasons why mariners’ employment contracts differ from shore-based ones are that a much greater degree of overall discipline is required at sea than it is on shore. The disciplinary rules and procedures at sea tend to be more stringent than those relating to shore-based companies. By the very fact that employment of mariners is essentially on the high seas and thus out of reach556of the normal shore-based legal institutions, the Master of the ship needs to be given, of necessity, much more authority on the ship’s complement than that of an on -shore based director. The Master is responsible for the safety of the crew, passengers, cargo, which includes the catch of a fishing vessel, and their safe delivery at the port of destination. The health and safety laws thus have a greater significance and impose upon both master and crew heavier and more exacting responsibilities.
It should also be noted that there has been in many instances557a historical tradition of earlier legislative intervention in maritime employment558than in shore-based employment. The mariner’s contract of employment was governed by legislation as early as in the 18th centu-
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ry559and wages, discipline and skills have received special attention in maritime employment contracts. British legislation has played an important role in seamen’s contracts of employment since the 1850s560, with the most important pieces of legislation being the Merchant Shipping Act 1894 as amended by the Merchant Shipping Act 2006 and the Merchant Shipping Act 1970561as amended by the Merchant Shipping Act 1974. A number of sections of the 1970 Act (as amended) came into force when the Merchant Shipping Act, 1979 was enacted.
It is important to mention the fact that since the enactment of the Merchant Shipping Act, 1970, the employment terms and conditions of a ship’s crew members have been as favourable,- if not more favourable,- than those applicable to shore-based employees.
The current law governing contracts of employment of seamen employed on merchant ships and of seamen working on fishing vessels will be found predominantly in the Merchant Shipping Act 1995562as well as under the British common law.
At this stage and for purposes of clarity it is proposed to divide this chapter into two parts. The first part will treat contracts of employment of seamen on board merchant ships, namely passenger and cargo ships, while the second part will evaluate the contract of employment of seamen working on sea-going fishing vessels. It will be noticed that the part on fishing vessels will be shorter than that on passenger ships.
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The reason is that the statutory provisions between the two types of contracts are either identical or similar. Where those similarities exist, reference will be made to the appropriate issue in the first part.
(A) Merchant Ships.
It will be recalled that the laws regarding the seaman’s contract of employment564were enacted in order to protect the seaman from exploitation and in order to ensure that he seaman knew what were his rights and obligations. There was thus devised an elaborate system in the form of articles of agreement565. Since the Pearson Report and the 1970 legislation the engagement of seamen has become more streamlined. It was felt that seamen did not need as much protection against exploitation as was necessary in the nineteenth century and that seamen being more literate than they were in earlier centuries, such protection was not required. Although the system since the 1970s has changed somewhat, the new system is not unlike the old one. The current law governing crew agreements is the Merchant Shipping Act 1995.
Subject to certain exceptions566allowed by Regulations made by the
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Secretary of State567, the crew agreement must be in writing and must be made between each seaman employed in a United Kingdom ship and the employer or some authorised person on the employer’s behalf. It must be signed by both the individual crew member and the employer or his agent568. What is important to note in the wording of this provision, is that each individual seaman and the individual employer or his agent has to sign the crew agreement. The crew is thus not a collective unit of individuals signing articles of agreement but a number of seamen signing individually a crew agreement with the employer or his agent, each agreeing to be bound by the terms and conditions of the crew agreement.
To be noted in particular is the important fact that a crew agreement must be contained in one document except that in such cases as the Secretary of State may approve where the agreement may be contained in more than one document or an agreement may relate to more than one ship569. A ship required to carry a crew agreement may, in the case of an agreement which relates to both that and other ships and which is kept at an address...
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