Last week, a coalition of 29 shipping organisations issued a statement demanding the release of the 25 crewmembers of the Galaxy Leader who have been held hostage by Houthis since 19 November 2023. The seizure of the Galaxy Leader, which was the first in a string of more than 50 attacks that have continued over the past three months in the Red Sea, brought back to light questions revolving around the rights of seafarers while they are held captive as a result of hostile attacks.
Thanks to its third group of amendments, which entered into force in 2020, the MLC, 2006, can be instructive to the extent that Houthi attacks can be considered acts of piracy or armed robbery against ships. In paragraph 7, Standard A 2.1 sets out the relevant definitions. Piracy is defined in accordance with Article 101 of the LOSC as:
‘(a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any acts of inciting or of intentionally facilitating an act described in subparagraph (a) or (b)’.
Whereas armed robbery against ships means:
‘any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, committed for private ends and directed against a ship or against persons or property on board such a ship, within a State’s internal waters, archipelagic waters and territorial sea, or any act of inciting or of intentionally facilitating an act described above’.
If Houthi attacks meet the requirements of the above definitions, the seafarers’ employment agreement (SEA) shall continue to have effect for the whole period of their captivity on or off the ship, regardless of whether the date fixed for its expiry has passed or either party has given notice to suspend or terminate it.[1] Those held captive shall continue to be paid their wages and other entitlements under the SEA, relevant collective bargaining agreement (CBA) or applicable national laws during the entire period of captivity and until the seafarers are released and duly repatriated in accordance with Standard A 2.5.1 or, where a seafarer loses his/her life while in captivity, until the date of death as determined in accordance with applicable national laws or regulations.[2] Whereas the seafarers’ entitlement to repatriation may not lapse while they are held captive on or off the ship.[3]
If, on the other hand, Houthi attacks cannot be considered acts of piracy or armed robbery against ships, because, for example, they are not committed for ‘private ends’,[4] then captive crewmembers will not be covered by the MLC, 2006. And, unless their SEA or the relevant CBA extend such rights to other hostile attacks,[5] they may found themselves in a legal vacuum with little or no protection.
In any case, the relevant provisions of the MLC, 2006, remain silent on compensation issues. A period of captivity often entails torturing, physical and mental abuse, food and water deprivation, and other severe mistreatment. It is, thus, unfortunate, to say the least, that the MLC, 2006, does not incorporate any provisions that will enable those captive seafarers who suffered personal injury or, the dependants of those seafarers who lost their lives while in captivity, to obtain adequate compensation. In such circumstances, seafarers, or their dependants, may be able to rely on compensation provisions in the SEA or the relevant CBA, provided that the wording of such provisions is broad enough to cover personal injury or loss of life suffered while in captivity following a hostile attack against the ship. For example, if the relevant provisions require compensation to be paid to seafarers who suffer permanent disability as a result of an accident in the course of their employment,[6] it is the author’s view that such wording will preclude the survivors of a period of captivity to obtain compensation because intentional acts of violence from third parties can hardly be considered as ‘accidents’.[7] Furthermore, it should be noted that not every type of physical or mental injury will lead to permanent disability.
Alternatively, a claim in negligence may be an option for the seafarers or their dependants. However, the prospects of such claim succeeding may be low, and some of the reasons are explained below. While there is no doubt that the shipowner[8] owes a duty of care to its crewmembers,[9] and that such duty extends far enough to cover the risk of seafarers being injured or killed by the deliberate wrongdoing of third parties in the context of their employment,[10] whether, or not, the shipowner will be found negligent in any given case depends on the foreseeability of the risk and, when a risk is foreseeable, on the probability of the risk materialising. For example, where a risk of a hostile attack that can lead to seafarers being held hostage is unforeseeable or, where it is foreseeable, but the level of probability is very low, it is highly unlikely that a shipowner will be found negligent for failing to take measures to protect its crewmembers against such risk. Of course, foreseeability and probability are not static concepts. What was considered an unforeseeable risk when the first Houthi attack took place can and, in the author’s view, should be considered a foreseeable risk of high probability when 50 or more similar attacks take place over a short period of time, thereby requiring a shipowner to take more measures to fulfil the duty of care owed to its crewmembers. But how far can those measures extend? Is it possible to argue that a shipowner who fails to re-route its vessel from the Suez Canal to the Cape of Good Hope should be found negligent if an attack occurs and, as a result, its crewmembers are kidnapped, injured, or killed?[11]
In principle, such an argument cannot be precluded. While cost considerations are relevant when determining the necessary precautionary measures in each case, they are not determinative.[12] On the contrary, expensive measures may be justified when the level of risk is high and the consequences that are likely to occur, if the risk materialises, are serious because, for example, the harm that is most likely to occur is loss of life. Yet, in practice, it will be hard to establish that a risk that meets this threshold exists.[13] But, even if it does exist, as, for example, when the frequency and the intensity of hostile attacks in a particular region over a specified period of time demonstrates that, policy considerations may render it unreasonable to expect a shipowner to re-route its vessel around southern Africa to protect its crewmembers. Shipping is a socially valuable activity.[14] Its contribution to the sustainability of global supply chains is undeniable. Therefore, the end to be achieved by shipping operations often justifies taking considerable risks that can possibly endanger the health and life of seafarers. We experienced that during the COVID-19 pandemic where seafarers kept working continuously to the detriment of their physical and mental health. It would, however, be absurd to accept that there should not be limits or, that those who are affected by unnecessary risks should not be protected. And clarification on these matters should be sought after through subsequent amendments to the MLC, 2006.
To conclude, the rights of seafarers who are held captive as a result of hostile attacks against their ship remain a landscape with blurred outlines. Despite their significance, the third group of amendments to the MLC, 2006, was yet another example of a reactive approach to shipping regulation. Accordingly, the relevant provisions, as currently framed, are confined to occurrences that fall within the strict definition of piracy and armed robbery at sea and lack the flexibility that is needed to offer adequate responses to emerging challenges. This, taken in conjunction with the uncertainties surrounding compensation issues, continue to make proactive drafting of the provisions of the SEA and the relevant CBA essential to ensure that seafarers are not trapped in legal vacuums.
[1] MLC, 2006, Standard A 2.1, paragraph 7.
[2] MLC, 2006, Standard A 2.2, paragraph 7.
[3] MLC, 2006, Guideline B 2.5.1, paragraph 8.
[4] Definition issues will be considered in more detail in a separate post on this blog.
[5] For example, the IBF agreements provide that ‘in case a seafarer may become captive or otherwise prevented from sailing as a result of an act of piracy or hijacking, […], the seafarer’s employment status and entitlements under this Agreement shall continue until the seafarer’s release and thereafter until the seafarer is safely repatriated to his/her home or place of engagement or until all Company’s contractual liabilities end’, thereby providing seafarers with wider protection compared to the MLC, 2006.
[6] Similar wording is used in the IBF agreements.
[7] Cosco Bulk Carrier Co Ltd v Team-Up Owning Co Ltd (The Saldanha) [2010] EWHC 1340 (Comm) (QB).
[8] The term ‘shipowner’ is broadly used to encompass the owner of 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.
[9] Saul v Saint Andrews Steam Fishing Co (The St Chad) [1965] 2 Lloyd’s Rep 1 (CA).
[10] Tarrant v Ramage (The Salvital) [1998] 1 Lloyd’s Rep 185 (QB).
[11] It may be worth noting here that re-routing adds approximately 3,500 nautical miles and up to two weeks to the sailing time of vessels booked to transit the Suez Canal.
[12] Bolton v Stone [1951] AC 850 (HL).
[13] Arguably, 1 successful hijacking over a period of 3 months will not be enough to prove that a risk that meets the necessary threshold exists.
[14] It is the author’s view that pure commercial considerations should not play any role in the determination of the precautionary measures that a shipowner should take to discharge the duty of care owed to its crewmembers, given that there are adequate mechanisms in place that a shipowner can use to be protected from any liabilities incurred when a vessel may have to divert from its route because it is necessary to do so for the safety of the crew.