RIGHTS OF SEAFARERS

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RIGHTS OF SEAFARERS

The Universal Declaration of Human Rights  adopted by the United Nations in 1948

recognises the “inherent dignity and the equal and inalienable rights of all members of

the human family… ”. It is instructive to note the mention of dignity which seafarers in

the current milieu do not seem to be accorded, and also the fundamental notion of

equality which is described as “inalienable”.

 On the issue of equality, a relevant observation is the manner in which others in society are treated as compared to seafarers. Are tourist polluters of beaches and industrial polluters of the sea treated with the same degree of harshness as seafarers, particularly in view of the established fact that land-based marine pollution is overwhelmingly higher than ship-source pollution? Are they “thrown in the slammer” without a trial, and is bail set for them at an inordinately high amount that is virtually impossible to meet.

        

           Society  pretends   that  there is  an  inherent  and  inalienable   right    of

all humans to be treated equally, but that is clearly not the case when it comes to

seafarers. They continue to be the subject of abuse and exploitation and are treated as

nothing but scapegoats.

The Universal Declaration of Human Rights provides in Article 3 that “everyone has

the right to life, liberty and security of person”. The State, in this context, is enjoined to

“take appropriate steps to safeguard the lives of those within its jurisdiction”. Thus,

port and coastal states owe such an obligation to seafarers of foreign ships.

Fundamental rights and principles

India affirms its commitment to respect, the fundamental rights to –

(a) freedom of association and the effective recognition of the right to collective

bargaining;

(b) the elimination of all forms of forced or compulsory labour;

(c) the effective abolition of child labour; and

(d) the elimination of discrimination in respect of employment and occupation

as referred to in the ILO Declaration on Fundamental Principles and Rights at Work,

1998.

ELABORATION OF ABOVE RIGHTS:

·         Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

·         Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

·         The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

·         Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority.

·         Workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations of workers and employers.

·         Workers shall enjoy adequate protection against acts of anti-union discrimination in respect

of their employment.

·         Such protection shall apply more particularly in respect of acts calculated to--

make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;

·         cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.

·         Workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration.

In particular, acts which are designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of interference within the meaning of this Article.

·         Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles.

·         Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

·         The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.

·         In accordance with the principle set forth in paragraph 8 of Article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any Member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.

Seafarers’ employment rights

1. Every seafarer has the right to a safe and secure workplace that complies with

safety standards.

2. Every seafarer has a right to fair terms of employment.

3. Every seafarer has a right to decent working and living conditions on board ship.

4. Every seafarer has a right to health protection and welfare measures and other

forms of social protection.

As reported by the International Commission on Shipping, “seafarers are considered

and treated by some port States more as potential criminals or undesirables rather than

respected professionals”. These are undoubtedly blatant violations of seafarers’ human

dignity and repugnant to any kind of civilised societal norms. Are doctors, lawyers,

judges and other professionals treated as potential criminals if in the course of their

professional activities, a fatal mishap occurs and every attempt by the individual to

prevent the occurrence and save the situation fails? The answer must surely lie within

the conscience of civilised society.

Notably, IMO Secretary General Admiral Mitropoulos in his recent World Maritime Day 2005 speech has admonished the maritime community to treat seafarers with respect and recognise –

those who at the risk of losing their own life, commit acts of extreme bravery to

rescue persons in distress at sea or to prevent catastrophic pollution of the

environment thus exhibiting virtues of self sacrifice in line with the highest

traditions at sea and the humanitarian aspect of shipping.

On another occasion he said-

The punishing treatment meted out to seafarers, on whom international seatrade

and the prosperity of nations depend, not only was disrespectful, wrong, unfair

and unjust, but also contrary to international law.

Deprivation of Shore Leave

The port or coastal state authority may refuse a seafarer entry into the country in which

case he is confined to remain on board. In recent times, certain states have imposed visa         requirements on seafarers of certain nationalities requiring them to stay on board.These

nationalities are supposedly security risks. The anomaly is that the ship itself is not a

security risk because it is granted clearance to enter the port, but individuals of certain

nationalities are. Granted that it is the sovereign right of each state to permit or prohibit

the entry of foreigners into their country, is such action consonant with the principle of

equality before the law? Denial of shore leave to seafarers who have spent weeks and

sometimes months at sea is by any standard a violation of basic human rights and

dignity. All too often, those who deny seafarers shore leave under one pretext or another

are the so-called champions of human rights and democracy.

It is not always practicable to obtain prior visas from a seafarer’s own country. Not every

crew-supply country has foreign diplomatic missions of the states who require visas.

Sometimes poor seafarers are grossly disadvantaged by having to travel long distances

and undertake onerous financial expenditures to obtain a visa. In instances where crew

members are prohibited by the port state authorities from going ashore, shipowners are

forced to employ armed guards on the ship. This, of course, is utterly degrading and

humiliating. Apart from that, seafarers of these “prohibited” nationalities are being

deprived of making a living from seafaring because shipowners are reluctant to recruit

them due to the extra costs involved in hiring armed guards, which, of course, is of

           financial benefit to the port state that imposed the requirement.

Your Legal Rights

Know Your Rights!

Seafarers’ rights is a complex area since your rights can exist at different levels and they can be overlapping and sometimes conflicting.

Therefore if you have a legal problem, you will need to seek advice from your union and from a lawyer who will discuss your specific situation.

This information is general advice only.

Sources of Seafarers’ Rights:

·                      Flag State law

A ship has the nationality of the flag that it flies.  Also, under international law, the laws of a flag State apply to a ship regardless of the location of the ship.  Therefore you - as a seafarer - are entitled to the protection of, and are governed by, the laws of the flag State wherever the ship is and regardless of your nationality.  For example, if you are an indian  seafarer on a Panama flag ship, you have rights (and obligations) under the laws of Panama.  So, always be aware of what flag your ship is flying and where necessary, ask for assistance to find out what are the laws of that flag State.

·                      Port State law

When your ship enters a port, that port State can exercise certain powers over the ship whilst it is in port.  Generally a port State does not intervene in the internal affairs of a ship unless there is a dispute which concerns the peace and good order of the port (for example if a crime is committed on board a ship).  However in many jurisdictions around the world, if you have a legal claim, for example for unpaid wages, you will be able to start a legal action in the courts of the port State.   Again where necessary, ask for assistance to find out what are the laws of the port State.

·                       

·                      Your home State

You will be able to rely on rights contained in your home State law if that law governs your contract of employment.  Otherwise, if you are in trouble when abroad, your home country should provide support and assistance through its consular offices. Therefore ask for assistance through consular officers.

·                      Your contract of employment

Your individual contract of employment will set out what your rights are as between you and your employer.  Your contract may be (1) a private contract and/or (2) a collective bargaining agreement produced by a trade union or an employers’ association and/or (3) a form of contract in which the government has taken an active role .  Your contract may be directly with the shipowner, or it may be with a manning agent, or it may be with some other agent for the shipowner.  All these different arrangements can affect your rights.  However above all it is important that you have a copy of your contract of employment, that you read it and that you know what rights are contained in it.

·                      International laws

International laws are laws made at the highest level between States.  Since it was founded in 1919, the International Labour Organisation (ILO) has set international labour standards for all workers, and specifically has set standards for seafarers in more than 65 Conventions and Recommendations.  These instruments, taken together, constitute a comprehensive set of standards and concern practically all aspects of living and working conditions of seafarers.   In February 2006, a new  Maritime Labour Convention 2006 was adopted which is a single, coherent international maritime labour standard for seafarers.  The Maritime Labour Convention 2006 will come into force when sufficient ratifications are obtained.

Human rights instruments also exist at international and regional level which may be relevant to the rights of seafarers.

THE FAIR TREATMENT OF SEAFARERS

Guidelines on fair treatment of seafarers in the event of a maritime accident have been adopted by the IMO's Legal Committee, which met for its 91st session from 24 to 28 April 2006.

The Guidelines, developed by a Joint IMO/ILO Ad Hoc Expert Working Group on the Fair Treatment of Seafarers in the Event of a Maritime Accident, were also adopted by the ILO Governing Body, which met in June 2006.

The Guidelines recommend that they be observed in all instances where seafarers may be detained by public authorities in the event of a maritime accident.

Seafarers are recognized as a special category of worker, the guidelines state. Given the global nature of the shipping industry and the different jurisdictions with which they may be brought into contact, they need special protection, especially in relation to contact with public authorities. The objective of the Guidelines is to ensure that seafarers are treated fairly following a maritime accident and during any investigation and detention by public authorities and that detention is for no longer than necessary.

The Guidelines give advice on steps to be taken by all those who may be involved following an incident: the port or coastal State, flag State, the seafarer's State, the shipowner and seafarers themselves. The emphasis is on co-operation and communication between those involved and in ensuring that no discriminatory or retaliatory measures are taken against seafarers because of their participation in investigations. The Guidelines say that all necessary measures should be taken to ensure the fair treatment of seafarers.

The Joint IMO/ILO Ad Hoc Expert Working Group on the Fair Treatment of Seafarers in the Event of a Maritime Accident was established in 2005 to work on the development of appropriate guidelines for endorsement by IMO and ILO. A resolution prepared by the Group and subsequently adopted jointly by the IMO Assembly and the ILO Governing Body last December (A.987(24)) states that both ILO and IMO are seriously concerned about the need to ensure the fair treatment of seafarers in view of the growing use of criminal proceedings against seafarers after a maritime accident. The resolution recognises the urgency of adopting Guidelines as a matter of priority and, to this end, requested the Group to finalise its work expeditiously. The Group completed this task in March 2006.

Member Governments are invited, in the resolution, to implement the Guidelines as from 1 July 2006 .