Nautilus on yacht crew welfare
Nautilus International's director of legal services, Charles Boyle, responds to two crew-welfare-focused articles in the latest issue of The Crew Report.…
I read with interest the reports on non-payment of crew (by Rory Jackson) and disparaging treatment of interior crew (by Lynne Edwards) in the May issue of The Crew Report. From Nautilus’ experience in dealing with these types of issues (and many others) I thought it would be useful to offer some further advice to readers, particularly in relation to the Maritime Labour Convention, 2006 (MLC), under which recent and future amendments will help crewmembers.
Non-payment of crew (in reference to 'Cash 22' in The Crew Report, Issue 81, p.8-9)
It is true that non-payment of wages (and sometimes a failure to repatriate) is a problem in the yachting sector, with Nautilus receiving many such complaints. [Look out for our article on repatriation in issue 82 of The Crew Report, out at the Monaco Yacht Show - sign up here.] When affected crewmembers are serving on MLC-compliant vessels, there is at least the advantage that they will have written contracts (Seafarer Employment Agreements, or SEAs), stating their salary/rate of pay, and they should be issued with monthly statements setting out the amount of wages due. Unfortunately, those serving on yachts which are not “ordinarily engaged in commercial activities” do not have these MLC-derived rights. It is therefore important that yachts are not incorrectly classified by their flag state as private. – if they are on charter or hire, then they are engaged in commercial activities.
Important amendments to the MLC came into force on the 18 January, 2017. Since then, commercial yachts registered with a country or territory to which the MLC applies are required to carry certificates of financial security to cover the costs arising out of abandonment and associated costs and expenses. For these purposes, abandonment occurs where the yacht owner:
(a) fails to cover the cost of the seafarer’s repatriation; or
(b) has left the seafarer without the necessary maintenance and support; or
(c) has otherwise unilaterally severed their ties with the seafarer including failure to pay contractual wages for a period of at least two months.
The definition is wide, and the third point should be helpful in situations where there are at least two months’ wages outstanding together with evidence that the owner has severed its ties with the crew, for instance not providing food, water or fuel or ignoring pleas to remedy the situation. In such cases, it is arguable that the crew has been abandoned and is entitled to payment of wages and other support through the yacht’s financial security system.
The financial security system (which will often be provided by the P&I Club) must cover up to four months of outstanding wages and other SEA entitlements; the cost of repatriation; essential needs of the seafarer including such items as adequate food, necessary clothing, accommodation, drinking water supplies, essential fuel for survival on board the ship, necessary medical care and any other reasonable costs.
The financial security certificate must be displayed in a “conspicuous place” on board. So if you are currently on a MLC-compliant yacht and you cannot easily locate the certificate, you should be raising this issue with the captain, owner or flag state. Failure to obtain and display this certificate is a very serious matter and will merit detention by Port State Control.
Some of the details which the certificate must provide are: yacht name; port of registry; call sign; IMO number; name and address of the provider of the financial security; contact details of the persons or entity responsible for handling seafarers’ requests for relief; name of the yacht owner.
Therefore, crewmembers who have been abandoned (in accordance with the above definition) should contact the person stated on the certificate, who should then handle their claim. So it’s important that person is provided with copies of relevant documents, such as SEAs and wages statements.
It is important to note that these amendments are in addition to any other legal redress you may have for recovering wages, such as a claim in court against your employer and/or action to arrest the vessel. However, in abandonment situations the financial security system should offer a swift and low-cost method of obtaining relief.
Unfortunately, there is no equivalent system place for private yachts which are not used for commercial activities. The crew of such vessels may have to resort to more traditional legal routes, such as a claim against their employer and/or arresting the vessel. As Rory Jackson said in his article, if there is no written contract, they should collect evidence of the contract. (Bank statements showing previous payments of wages will be helpful to establish your rate of pay.)
Disparaging treatment of interior crew (in reference to 'Self preservation, a think skin and tolerance: essential requirements for interior crew?' in The Crew Report, Issue 81, p.40-41)
The article by Lynne Edwards provided a worrying insight into the sort of behaviour and culture still tolerated in some quarters of the yachting industry, with her research uncovering complaints of sexism, racism, abuse, exploitation, bullying and harassment.
This is an area in which some forthcoming amendments to the MLC should start to make a difference. The changes come into force on the 8 January 2019, and will be made to the “health and safety protection and accident prevention” section of the MLC. This sets out steps which the flag state must take to promote occupational health and safety on board. The amendments (which themselves will be contained in the non-mandatory Code B of the MLC, but to which flag states must take into account in implementing the mandatory Code A) will require that flag states:
- in implementing their MLC health and safety measures, take account of the latest version of the “Guidance on eliminating shipboard harassment and bullying” published by the International Chamber of Shipping (ICS) and the International Transport Workers’ Federation (ITF);
- take into account the implications which bullying and harassment may have for health and safety;
- consider investigating problems arising from bullying and harassment.
The amendments should put more emphasis on the flag state to tackle this issue on both a proactive and reactive basis. It is hoped that flag states will respond accordingly by either amending their domestic MLC implementing legislation or, at the very least, reflecting the changes in marine guidance notes. The changes will also hopefully raise the profile and importance of the ICS/ITF guidance.
For the time being though, the ICS/ITF guidance, and that of the European Community Shipowners’ Associations and the European Transport Workers’ Federation, provides excellent advice (both are easily obtainable online). These guides give examples of what amounts to bullying and harassment, eliminating it, and reporting incidents.
It should also be noted that victims of such behaviour may have legal claims for unlawful discrimination. The EU has strong discrimination laws and forbids adverse treatment on the grounds of: age, disability, race, religious and political beliefs, sex, sexual orientation and gender reassignment. Advice should be taken as soon as possible to so that the deadlines for submitting claims is not missed. In the UK the primary limitation period is three months, but can be shorter in other jurisdictions.
To read the articles in question and/or receive your complimentary copy of The Crew Report, click here.
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