Ashfords Solicitors - Seafarer's Rights

Although substantial legislation grew up to assist and advance the commercial prosperity of ship owners, charterers and cargo owners, those left operating the vessels at sea, i.e. the master and crew, are often left to fend for themselves. Their position was exacerbated by the tendency in the late 20 th Century for vessels to fly flags of convenience so that that particular flag state whether it was, for example, Panama, Belize, Cyprus or the Isle of Man was, on the face of it, the appropriate jurisdiction in the event of any incident that happened outside territorial limits. It is, of course, often very difficult to show a genuine link between a ship owner and a flag of convenience. This coupled with the rise of one-ship companies (to limit liability) has allowed ship owners to operate in a virtually invisible manner.

For example in the well known case of the "Erika" which broke in two in the Bay of Biscay on 12 December 1999 and polluted a vast area of the French coast, the vessel was built in Japan ostensibly owned by a brass-plate company in Malta, managed in Italy, chartered by a French company, mortgaged by a British bank and had a crew primarily from India where the real owners were well hidden. Similarly, the tanker "Prestige" which sank off the North West Spanish coast on 19 November 2003 had a similar matrix of vested interests. However, in this case when the vessel was ordered away from the coast with a 30 º list the master evacuated the crew but remained on board with two officers to do what they could. When the ship broke up however he was arrested and imprisoned by Spanish authorities. He, like the master of the "Erika", remained in prison for a very long period of time (over 1 year). This was because the master was the only person within the jurisdiction that the authorities were able to "go for".

Accordingly a master (or a member of his crew) may find themselves convicted of an offence in respect of dangerous unsafety for which they had no personal responsibility and about which they may reasonably have been totally unaware. The criminalisation of seafarers is therefore an issue being looked at by the International Marine Organisation but as yet, there is no common ground to avoid imprisonment or serious charges being laid by the police or Maritime Coastguard Agency (in the UK), in the event of a casualty. Nor will the efforts of insurers (such as the protection and indemnity clubs) enable masters or crew to be extracted from prison because they will be subject to the laws of whichever jurisdiction they are held. For example, in the South West of England there have been two recent cases of the police bringing manslaughter charges against an unsuspecting master and crew.

Other problems may arise particularly to do with adequate payment. In England the courts have always attempted to give the master and crew priority and any such claim will survive for example change of ownership of the vessel and is known as a maritime lien. This lien has high priority over other maritime liens such as collision and salvage claims and accordingly there is very high priority for any such claim in the event of a judicial or forced sale of the vessel to satisfy such claim.

Most seafarers are now recruited through recognised agencies in countries like the Philippines which has over 400 crewing agencies, allocating some 200,000 or so seafarers to global shipping. Ironically Western European powers produce an ever decreasing number of seafarers to an industry which is larger in the UK than the aviation and agricultural industries placed together. This may be because seafarers are concerned about their rights and the risk of being branded a convict if, through no fault of their own, something goes wrong whilst at sea or alongside in harbour.

The answer is partly for the owners to give better terms and conditions to their seafarers to ensure that they are well rewarded financially for the difficult and at times dangerous work they carry out. This in turn would lead to loyalty to ships and shipping companies from seafarers with the rights they deserve in an industry on which we will all be increasingly dependent if global (and UK) trade is to maintain its current levels of expansion.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

12th December 2006

Key Contacts

Seafarer's Rights

Introduction