2 December 2020
Seafarers are without a doubt the unsung heroes of the COVID-19 pandemic. They have done so at great personal costs to themselves and their families. Most seafarers, with little choice, have had to work for many months beyond what had been agreed to in their employment contracts or that is permitted under International law. This is in the context where seafarers routinely work 7 days a week on the ship, in isolation and often without the opportunity to go ashore and have the normal social interactions that shore workers enjoy. That was the norm for many seafarers even prior to COVID-19. Standard contracts of employment often range from 3 to 9 months.
Now with various government restrictions in place further limiting the movement of seafarers, there are reports of an estimated 400,000 seafarers being trapped at sea and some employment contracts having been extended to 22 months. It's hard to imagine any shore side person working continuously like this, for such an extended period of time, without seeing their family.
All Australians involved in the broader maritime industry will appreciate how shipping remains vital to the Australian economy and how seafarers are central to this. Notwithstanding extensive lobbying by organisations such as the IMO, ILO, ITF, peak industry bodies and charities, governments around the world have done very little to actively facilitate crew changes and help seafarers return home at the end of their contracts.
The IMO has stated that the lack of crew changes is now "a humanitarian, safety and economic crisis". Whereas the UN's OHCHR has described seafarers' as "collateral victims" due to COVID-19 related measures imposed by governments.
Travel and transit restrictions
Australia has also played a part in this unfolding tragedy as State governments disregard our international legal obligations and impose their own hard borders, travel restrictions and quarantine requirements.
On 9 April 2020, the National Cabinet agreed to implement a uniform and consistent (and immediate) exemption for non-cruise maritime crew (i.e. anyone required to be part of a crew operating, or providing services to, a commercial vessel that is involved in the movement of freight) to allow for the transiting to and from vessels, within and across jurisdictions with agreed documentation, meaning that seafarers would not be subject to mandatory quarantine.
However, this immediate, uniform and consistent exemption in relation to maritime crew did not come into effect. Rather, each State and Territory imposed different restrictions, creating uncertainty and impeding on the ability of shipowners and operators to change crews. As a result crew changes in Australia have generally been either impossible due to the steadfast refusal to apply some common sense or, at best, very difficult, due to procedures being put in place by bureaucrats that are simply not practical or workable for shipowners or operators.
In a 'COVID-Normal' world, if this issue is not promptly addressed, it will not only place the health and safety of seafarers at risk, but it will also have dire consequences for world trade dependant on seaworthy ships carrying cargo worth millions of dollars safely around the world. On the one end of the scale, fatigued and over worked crew places everyone on board and those that interact with the ship at risk, as well as the ship itself and the environment. At the other extreme end, ships will simply not be able to operate due to the absence of suitably rested crew.
Of course, if this state of play continues it will have an impact on shipowners and operators' insurance and legal liability, whether it is under a charterparty or as carrier under a bill of lading. It is well established that seaworthiness of a ship is closely linked with the competency of its crew and in a 'COVID-Normal' world compliance with the STCW Convention will no doubt attract special scrutiny in any casualty investigation or cargo claim.
Obligations under International Law
Under the Maritime Labour Convention 2006 (MLC), the maximum continuous period that a seafarer should serve on board a vessel without leave is 11-months and at the end of their employment contracts, seafarers' have a right to be repatriated, with some exceptions in circumstances of force majeure.
Australia has ratified the MLC which has effect through the Navigation Act 2012 (Cth) and associated delegated legislation, and as such, has an obligation to facilitate repatriation, as well as to facilitate the replacement of seafarers. The ILO has strongly advocated that these obligations must be respected during the pandemic. Recently and in response to COVID-19 and the increasing concern of maritime safety and seafarer welfare, AMSA issued Marine Notice 04/20, which temporarily extended the maximum period of continuous service from 11 to 14 months. This temporary arrangement was due to expire on 1 October 2020. However, on 11 November 2020, by Marine Notice 10/20 which supersedes Marine Notice 04/20, AMSA extended the temporary arrangements until 28 February 2021.
Although these extensions reduce the risk of ships being detained when calling at Australian ports, it is only a temporary measure and does not address the underlying problem. For example, AMSA recently detained and prohibited Panamanian-flagged general cargo ship "Brio Faith" from departing until nine crew members were repatriated. It was reported that three of the these nine crew members had been on board more than 12 months, four had been on board for 16 months and two had served more than 20 months. The operator had reportedly sought to excuse itself on the basis of difficulty getting the new crew to join the ship because of travel restrictions. However, this was rejected and the ship detained until an adequate number of new crew had arrived. It will be interesting to see if more interventions like this occur in the coming months and whether AMSA continues to take a hard stand on this issue.
'COVID-Normal' crew transfers
The IMO and other expert international bodies have issued guidance and recommendations to carry out crew changes in a "COVID-safe" way. For instance, the IMO published guidance in its "recommended framework of protocols for ensuring safe ship crew changes and travel during the coronavirus (COVID-19) pandemic". This framework is designed to assist governments and other relevant national authorities in implementing proper protocols to facilitate safe crew changes during the pandemic.
One of the recommended protocols is to designate seafarers as "key workers" and be afforded enhanced rights when crossing international borders including appropriate travel exemptions for the purposes of joining or disembarking ships.
Examples exist where these guidelines have successfully been implemented such as in Singapore. At the beginning of November 2020, the Maritime and Port Authority of Singapore announced that it expects to, in the coming months, conduct 500 to 600 crew changes per day. And closer to home, in May 2020, the Queensland government implemented a new class exemption for non-cruise maritime crew which has since then facilitated more than 3,600 crew changes in Queensland.
Governments are on notice
If we are going to have seaworthy ships plying the oceans, we need efficient and effective crew, and ensuring timely crew changes is part of that equation. It is clearly possible to facilitate crew changes in a 'COVID-Normal' world if there is a political will to do so. It is, however, critical that all stakeholders, including State governments work together to facilitate a uniform and consistent set of protocols permitting seafarers' to travel to and from ships. Not doing anything, is simply not an option if we want to ensure the wellbeing of seafarers and safe shipping operations.
For further information, please contact:
Maurice Thompson, Partner, Clyde & Co
maurice.thompson@clydeco.com
