Tag: repatriation

New guidelines for port State and flag State authorities on how to deal with seafarer abandonment cases

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.

The Third Group of Amendments to the Maritime Labour Convention 2006 Enters into force Later this Month

Later this month, the third group of amendments to the Maritime Labour Convention 2006 will be entering into force (26 December 2020). While these amendments have been discussed in a previous post on this blog https://iistl.blog/2020/06/10/singapore-passes-legislation-to-give-effect-to-the-third-group-of-amendments-to-the-maritime-labour-convention-2006/ , it may be worth reminding that they relate to Standard A 2.1, Standard A 2.2 and Regulation 2.5 of the Convention. The amendments ensure that a seafarer’s employment agreement (SEA) shall continue to have effect, wages and other contractual benefits under the SEA, relevant collective bargaining agreements or applicable national laws shall continue to be paid and the seafarers’ right to be repatriated shall not lapse for as long as a seafarer is held hostage on board a ship or ashore by pirates and armed robbers.

EU COMMISSION URGES MEMBER STATES TO DESIGNATE PORTS WHERE CREW CHANGES ARE FACILITATED DURING COVID-19 PANDEMIC

In response to the IMO recommendations for governments and relevant national authorities on the facilitation of crew changes and repatriations during the COVID-19 pandemic, the European Commission has now taken steps to facilitate and coordinate the efforts of Member States to enable crew changes in their ports.  

On guidelines published 8 April 2020, the European Commission urges Member States to designate ports for fast-track crew changes. The ports should be geographically dispersed so as to cover the Union and should be connected to operational airports and rail stations.

Given that transport connections are now heavily affected, the European Commission further urges Member States to envisage the possibility of dedicated flights and rail operations to ensure the transport connections for crew changes, allowing for swift travel and repatriations of seafarers.

Regarding the characteristics of these designated ports, the European Commission highlights that they should have nearby accommodation where seafarers could wait for arrival of the ship they should board or for their flight, train or ship if it does not leave on the same day. This accommodation should have adequate facilities to allow seafarers to undergo 14 days of quarantine before embarking and after disembarking if the Member State at hand requires this to protect public health. Finally, the ports should have accessible and adequate medical services available to seafarers when they embark, disembark and during their quarantine periods.

The European Commission clarifies here that seafarers who are nationals of third countries should also have access to adequate medical care and accommodation until their repatriation becomes possible. However, Member States may be entitled to request compensation from the shipowner. In this respect, the provisions of the Maritime Labour Convention, 2006, apply to ensure that accommodation and medical care should, in principle, be provided at no cost to seafarers.

The European Commission has also commented on the practice of extending the usual 11 months duration of a SEA stating that this should be the last resort, if repatriation is not possible. This is essential to ensure that fatigue does not detrimentally affect the mental health of seafarers and maritime safety.

As a final note, the European Commission stresses the need for the practice of designating ports where crew changes can take place safely during the COVID-19 pandemic to be shared with third countries to be implemented worldwide.

THE IMO CIRCULATES PRELIMINARY LIST OF RECOMMENDATIONS FOR GOVERNMENTS AND RELEVANT NATIONAL AUTHORITIES ON THE FACILITATION OF CREW CHANGES AND REPATRIATIONS DURING THE COVID-19 PANDEMIC

The COVID-19 pandemic is a global public health crisis, which places unprecedented restraints to the movement of seafarers for the purposes of crew changes and repatriations. In a circular letter issued on the 27th of March 2020, the IMO has distributed a preliminary list of recommendations for governments and relevant national authorities on the facilitation of crew changes and repatriations during the COVID-19 pandemic. Amongst other things, the IMO specifically urges governments to:

  • designate seafarers, regardless of nationality, as ‘key workers’ providing an essential service;
  • grant seafarers with any necessary and appropriate exemptions from national travel or movement restrictions in order to facilitate their joining or leaving ships;
  • accept, inter alia, official seafarers’ identity documents, discharge books, STCW certificates, seafarer employment agreements and letters of appointment from the maritime employer, as evidence of being a seafarer, where necessary, for the purposes of crew changes;
  • permit seafarers to disembark ships in port and transit through their territory (i.e. to an airport) for the purposes of crew changes and repatriation;
  • implement appropriate approval and screening protocols for seafarers seeking to disembark ships for the purposes of crew changes and repatriation; and
  • provide information to ships and crews on basic protective measures against COVID-19 based on World Health Organisation advice.

While these preliminary recommendations point towards the right direction, still there is a lot that needs to be considered. As recognised ‘key workers’, seafarers will be able to travel to and from a vessel, provided they carry at all times their professional documentation. However, seafarers, who sign off their ships at foreign ports, might not be able to be repatriated, despite their ‘key workers’ status. That is because many countries have now closed their international borders, and so commercial flights have been cancelled until further notice. In these circumstances, it will be up to the seafarers’ country of residency to take appropriate measures for their repatriation.

Furthermore, many countries have now adopted mandatory measures requiring people to self-isolate before they enter their territory depending on whether they had recently visited an affected country. Seafarers will have to adhere to these mandatory measures, irrespective of their ‘key workers’ status. That raises the question as to who should bear the cost for any expenses incurred by seafarers during self-isolation. According to regulation 2.5 of the MLC, 2006, shipowners should cover the costs of repatriation (i.e. travel expenses, food, clothing, accommodation, medical treatment etc) until seafarers are landed at the place of return (i.e. the agreed place under the SEA, the place at which seafarers entered into the SEA or the seafarers’ country of residency). Thus, seafarers who have to self-isolate awaiting repatriation at a foreign country should not bear any costs. It is, however, likely that seafarers who have to self-isolate at the place of return will have to bear the cost for any additional expenses.

Given these complexities, many shipowners now prefer to extend the SEAs instead of signing-off and repatriating crewmembers. However, this cannot be done without the consent of seafarers, unless, of course, the SEAs include a clause to that effect. In any case, any decisions as to the extension of the SEAs should not be taken lightly and should not prejudice the seafarers’ mental health and wellbeing.