Vulnerability of Seafarers: Rules and Problems in the British and Irish Systems -Labour Rights or Commercial Necessity?
| Autor | Michael Wynn |
| Cargo del Autor | T. Professor of Law Kingston Law School. Kingston University, London (Reino Unido) |
| Páginas | 343-377 |
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So the shippers get the higher rates,
Increase the crews and cut the hours,
Strike the flag of Panama,
And so at last, they smell of flowers.
One day it might just happen
A fairy tale come true
It’s even very possible
They’d employ and train the crew!754The vulnerability of seafarers is conditioned by the physical and economic context in which they work. While the ‘shanghaiing’755of workers onto ships in foreign ports is no longer an option, the reliance of
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the shipping industry on external labour markets inevitably entails practices which exploit young economically deprived workers. This paper takes as its starting point, the premiss that the vulnerability of any category of worker is structured by the social and economic relationships in which that worker operates756. Law itself is one structuring agent which both conditions and is conditioned by social forces. Seafarers as a group may be more subject to commodification than workers in land-based industries as the legal constitution of their work space is inherently less tangible. Practices of off-shoring whereby firms use de-regulated offshore production to reduce costs are natural to the shipping industry, an industry which is inherently global and therefore suited to global labour sourcing757. The Indonesian seafarer who works on a Greek-owned vessel, flagged in Panama is a true product of a system of production which is designed to conceal ownership and control through offshore structures. In this sense, the shipping industry is char-acterised by de-territorialisation of state sovereignty and its regulation requires new legal tools to engage with the logic of such expansion758.
This paper will attempt to illustrate some of these issues by examining aspects of the wage work bargain as it relates to seafarers in UK waters. The chapter is structured in four sections: first, an outline of the UK commercial context; secondly, an exposition of UK law relating to the employment of seafarers; thirdly, analysis of UK law relating to compliance and enforcement; fourthly, a case study on ‘abandonment’ of seafarers in UK waters. The question to be addressed is whether current legal frameworks, in particular, the advent of the Maritime Labour Convention 2006 (henceforth referred to as the MLC), are robust enough and effectively enforced in practice.
The methodology employed is twofold. First, there is an analysis of primary sources, particularly the UK regulations made in order to implement the MLC. Second, the issue of compliance is addressed by means of a qualitative analysis of interviews conducted with the Maritime Coastguard Agency (MCA)759and officials of the International
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Transport Workers’ Federation (ITF)760. Interviews were conducted with officials from the MCA and with ITF inspectors for the UK region between April and August, 2015761.
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Fig. 1: Shanghaied Sailors being lifted onto a ship. Image: Bill Pickelhaupt, Flybister Press. Courtesy of foundsf.org. Image: Labour 1$shanghaiing-drawing.jpg.
The UK has a maritime services sector worth up to £14 billion per year762. As an island nation with a seafaring tradition rooted in centuries of maritime history and enormous knowledge and expertise, it provides a highly competitive environment for a global shipping industry. In addition to its marine and manufacturing industry763, the
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UK has the largest port industry in Europe, handling over 500 million tonnes of cargo and 22 million plus international passengers every year. An important feature of the UK ports industry is its largely private sector, market led structure764, providing flexibility and adding to global competiveness. The UK is also home to large numbers of international shipowners, operators and managers as a result of the shipping expertise in the City of London. UK commercial law provides the background to this paper, a common law residual foundation based in centuries of commercial practice.
The UK ship register increased substantially from 1999 to 2014, with a fourfold increase from 2.7 million deadweight765to 12.6 million dwt766. The inclusion of UK direct owned, UK parent-owned and UK managed vessels increases this figure to 53.9 million tonnes dwt767. However, the economic downturn in 2009 has reversed this expansion. Since 2009 the UK registered fleet has decreased by 27 percent768. In 2014, the UK fleet fell from 16th to 20th place in terms of dwt tonnage, decreasing by 17 per cent769. The main cause for the decrease of the size of the UK fleet was the impact of ships transferring registration to other countries. A total of 66 vessels were de-flagged in 2014, moving largely to Singapore, Barbados, Greece, the Marshall Islands, the Isle of Man and China770.
In addition to the ‘flagging out’ problem, the number of UK seafarers is also in decline. There are currently under 23,000 UK officers and ratings active at sea and the UK could suffer a maritime skills shortage by the next decade771. This decline in the numbers of UK seafarers with
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ratings is significant in terms of the protection of seafarer employment in the UK. The UK has adopted a ‘free seas’ approach to domestic shipping and has chosen not to take advantage of opportunities to protect domestic island cabotage (passenger vessels and cargo vessels under 650 gt) in line with current EU provisions772.
This brief sketch of the UK maritime industry indicates a number of structural fissures in the overall economy of the sector. The downward trends in both size of fleet and numbers of ratings indicate a tendency to downsize the UK flagged fleet in the face of global recessionary trends. The shipping industry might be seen as a paradigm example of globalisation and its effects on labour standards. The spatial aspects of the organisation of the industry illustrate important links between casualization and transfer of labour production, with ‘flags of convenience’773(FOCS) as the exemplar business model. If the law of the sea has traditionally been grounded in notions of freedom of the high seas774, then the recent decline of the UK industry and re-flagging to Singapore and other states could be interpreted as an irreversible trend in the face of global economic forces. What are the possible consequences of increasing de-registration of UK vessels? Might this indicate a downward trend in labour standards with attendant problems of compliance?
The statutory regulatory framework in the UK relating to seafarers consists of a patchwork of regulations and statutes which have been developed over centuries of maritime history. The leading statute, the Merchant Shipping Act (1995), is a consolidating statute which
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amends and consolidates existing legislation dating back to the nineteenth century775.
Much of the detailed statutory protection relating to seafarers is contained in regulations which have been revised and amended as a result of the UK’s ratification of the MLC. The modern regulations are now contained in the Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers) etc. Regulations (2014)776 (henceforward referred to as the Minimum Requirements Regulations) and consequential amendments to existing legislation777.
The exposition which follows will focus on key aspects of the UK law. The intention is to limit the analysis primarily to economic and financial aspects of legal protection in order to highlight aspects of vulnerability of seafarers relating to the wage-work bargain778.
The UK ratified the Maritime Labour Convention on 7 August 2013, two weeks before the Convention came into force on 20 August 2013. The UK government actively participated in the design and promotion of the MLC. Implementation in the UK was a protracted process as the organisations involved779were insistent on effective transposition and implementation780.
A discussion of the scope and effect of the MLC is outside the ambit of this paper, but two preliminary points will serve to establish the importance of this Convention to the issue of compliance and enforcement of labour standards. The MLC is innovative in terms of procedure and substance. The idea of a consolidated international legal instrument which attempts to build up a single cohesive universal standard across
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a global industry is a bold aspiration781. This structure is aided by the special enforcement procedures of the Convention in which the principle of ‘no more favourable treatment’ (NMFT) prevents non-ratifying States from gaining comparative advantage by excluding themselves from the compass of international labour standards. The idea of NMFT is that Flag States who ratify will receive as favourable treatment as those who have not ratified and thus aim to ‘jump start’ a process of labour standard-setting782.
The question is whether this international regulatory structure is effective in practice? This paper will consider the...
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