Earlier this month the ILO and IMO jointly adopted guidelines for port States and flag States on how to deal with seafarer abandonment cases. The new guidelines aim to facilitate the development and implementation of practical steps for port State and flag State authorities to expeditiously and effectively resolve abandonment cases where duty holders have failed to do so.
Under the MLC, 2006, the shipowner remains liable to cover the cost of repatriation, outstanding wages, and other entitlements due to the seafarers under their employment contracts and the MLC, 2006, as well as provision of essential needs.[1] The shipowner is also required to provide adequate financial security to ensure that seafarers are duly repatriated.[2] In cases where the shipowner fails to fulfil the relevant obligations, the flag State should arrange the repatriation of seafarers.[3] If the flag State fails to do so, the responsibility to repatriate the seafarers shall rest with the port State or the State of the nationality of the seafarers.[4]
The new guidelines do not purport to bring any changes to the principles just described. On the contrary, they seek to address the practical difficulties that arise in cases of abandonment of seafarers due to lack of effective coordination and communication between flag States, port States, States in which seafarers are nationals or residents, States in which recruitment and placement services operate, and other stakeholders. In this respect, they set out a series of steps to be taken by port State and flag State authorities to expeditiously and effectively resolve abandonment cases.
The new guidelines provide, inter alia, that the port State shall immediately report an abandonment case to ILO and notify the parties involved, including shipowners, flag States, and any relevant seafarers’ representatives. Upon receiving such notification, the flag State shall urge the shipowner or financial security provider to fulfil their responsibilities in accordance with the MLC, 2006, and, if the latter fail to undertake their responsibilities within the given deadline, the flag State shall take the lead and coordinate the process for the seafarers’ repatriation. Should both the shipowner and the flag State fail to comply with their obligations, the port State shall take the lead of the repatriation process.
Most importantly, the new guidelines prompt flag States and port States to establish a consultation mechanism dedicated to the resolution of seafarer abandonment cases, as well as a domestic Standard Operating Procedure (SOP) to explicitly define the liabilities and obligations of flag State and port State authorities, and the roles to be played by other relevant government agencies and non-government entities.
Almost a decade after the MLC, 2006, entered into force, resolving seafarer abandonment cases remains a complex and time-consuming task. This is true even in the most straightforward cases where adequate financial security is available. Lack of coordination and bad communication between shipowners, financial security providers, port States, flag States, and other interested parties means that seafarers and their families have to suffer the adverse consequences of abandonment for longer. The new guidelines take positive steps towards eliminating any resulting risks. However, their non-legally binding nature can hinder their practical significance if flag States and port States are not willing to take action.
[1] MLC, 2006, Regulation 2.5.
[2] ibid.
[3] MLC, 2006, Standard A 2.5.
[4] ibid.