SRI Annual Review 2013 - Abandonment of seafarers

The highly publicised case of the crew of the 43,866dwt TMT-linked woodchip carrier Donald Duckling, reduced to surviving by catching fish off the side of the vessel as she lay detained in the Port of Tyne, indicated very strongly that the spectre of the abandoned vessel remained a constant during 2013, and is a reality of today’s shipping market which refuses to go away.

Poor underlying market freight rates coupled with rising operating costs and vessels acquired at the top end of the market are all factors which heighten the risk of a deterioration in the situation over the coming year. Credible statistics remain illusory. The ILO database records a level of incidents which is widely considered to underrepresent the true extent of the problem, perhaps not least because the database relies on voluntary reporting by stakeholders, and for some it is not in their interest to do so.

The problem of abandonment is wider than repatriation

It is often not appreciated that the problems of abandonment are far wider than the single problem of repatriation. The plight of an abandoned seafarer will almost invariably throw up a wide range of problems, and the particular set of problems may be unique in each case of abandonment.

Abandoned in a foreign port, a seafarer may be beset by problems including, for example, inadequate food and water, clothing, accommodation, heating, safety and security, medical and dental care, unpaid wages, and repatriation costs. The seafarer may or may not receive advice and assistance from government departments, consulates, unions, and welfare organisations. He will probably have to arrest his ship to legally enforce his rights against the shipowner. This will invariably require the services of a local lawyer, which an unpaid seafarer will probably not be able to afford. And the seafarer may or may not have to stay in the port or on board the ship while his rights are enforced against the arrested ship. But the ship may prove to be of little or no value.

Also the seafarer might suffer detention and deportation. This could prevent him from returning to that country for a certain period, or at all, or affect his ability to visit other countries, through no fault of his own. In some countries, it is a criminal offence for the ship to leave behind one of its seafarers (particularly where abandonment has caused great hardship), or for a shipowner to abandon a seafarer either aboard the ship or ashore in circumstances that are dangerous to the seafarer. So the challenge for the maritime industry and the international and national lawmakers is to ensure that these legal problems, which can become complex and complicated, may nonetheless be resolved by clear, simple and, as far as possible, uniform laws at no cost to seafarers, the innocent victims of abandonment.

Financial security for abandonment

Some of these problems have been discussed for many years in long drawn out sessions of a Joint IMO/ILO working group established in 1999. Finally a potential solution harkens. The Special Tripartite Committee of the Maritime Labour Convention 2006 (MLC 2006), made up of seafarers, shipowners and government groups, will meet in Geneva in April 2014 to discuss inter alia an amendment to MLC 2006 to deal with abandonment. The proposed amendment will be based on the proposal which came out of the 9th session of the Joint IMO/ILO Ad Hoc Expert Working Group on Liability and Compensation regarding Claims for Death, Personal Injury and Abandonment of Seafarers.

The passing into force of MLC 2006 was significant in this context because of its provision requiring financial security in the case of repatriation.

Financial security will be essential to delivering a practical and working solution for abandoned seafarers. The amendment is intended to give substance to the requirement of financial security contained in the original Regulation 2.5 of MLC 2006, outlining the specifications of its content and of its operative procedure. Accordingly, the original requirement of a financial security ‘.. to ensure that seafarers are duly repatriated…’ becomes a ‘..financial security system to assist seafarers in the event of abandonment...’

When the modification enters into force, each Member State will have to decide, in the usual tripartite manner, if the financial security for repatriation existing at the time can become the financial security system required for the future, and if the present plurality of solutions can be maintained. This will require States to become sophisticated experts of insurance in order to evaluate the compliance of the shipowner’s proposed financial security system and to keep track of the continuous validity of it. Therefore as with other aspects of MLC 2006, there will be some difficult work to do in order to implement in practice the new requirements. And for seafarers, it is essential that the new financial security system is devised as an instrument of practical help and is readily available for the seafarer abandoned in a situation of severe distress.

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Source: Seafarers Right

07 July 2014
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