H.3 Abandoning ship

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RICARDO RODRIGUES MARTOS

In the last decades, the abandonment of seafarers has become a serious problem that affects many and shows the lack of protection seafarers have.

This problem can be considered an attack against human dignity and especially affects seafarers from Third World countries. It leaves entire crews and their families mired in despair and anguish.

H.3.1 How it all begins

A ship is detained in a port, either because it has been seized by a creditor, or because the Harbour Master's Office, or equivalent authority, orders its retention, considering that the ship does not comply with the established minimums in terms of navigability conditions, safety, hygiene, etc., or maybe because the ship has been involved in some illegal activity. In addition, since 2013, when the Maritime Labour Convention (MLC) 2006 (1) entered into force, a ratifying country can retain a ship in a port of if the crew has not been paid.

In order to release the ship and be able to go out to sea, the ship owner must settle his debts, pay the imposed fine or make the necessary repairs, depending on the reason for the detention. In many cases, this occurs smoothly and the ship sails as soon as possible. However, unfortunately this is not always the case. The necessary funds to carry out required repairs, an imposed fine or a failed business, can make the ship no longer profitable and even mean that it’s value will be lower than the debts incurred or the necessary investments to make the ship seaworthy again.

When the ship owner lacks money to resolve the situation, the ship can be arrested and a process begins that, at great economic and human cost, usually results in the sale of the ship at auction.

The type of ship we usually find in these circumstances often sails under a flag of convenience and has many years of service. As for the ship owner, he often limits the capital investment in the ship and pays the operating expenses with the money earnt from each voyage. When, for any reason, a voyage does not produce the expected benefit or an unexpected expense occurs, this ship owner may lack the resources to remedy the situation. In these circumstances, it is not uncommon that, before being detained, seafarers on board were already owed one or more months of salary.

H.3.2 Once the ship is arrested

An objective perspective

Once a ship is detained for one of the reasons given, the ship owner has two options - to pay the necessary money to release the ship or to abandon it. It is possible that the owner tries to resolve the situation and that at the start, the crew continue to receive funds for provisions and fuel, and even some of their salaries, through the ship’s agent.. As the weeks go by, the owner may repatriate a part of the crew.

Then, in most cases, there comes a time when the ship owner stops sending money and the ship’s agent stops providing necessary items to the ship. The agent has probably advanced funds on behalf of the owner and now ceases to represent the ship owner. From this moment on, seafarers on board will receive no more money and will enter into a real situation of abandonment.

Of course, the owner's attitude is not always the same. In some cases, such as the one mentioned above, the ship owner shows an intention to solve the problem, but then stops in their efforts. In other cases, the ship owner disappears shortly after the ship is detained. However, the final outcome is the same. The crew is abandoned.

A seafarer’s perspective

For a seafarer there is only one aim - to collect the money owed to them and return home. However, as the days go by, they realize that things are not so simple, that their situation is going to last for a while, and that they need to survive.

Seafarers are far from home, in a strange country, where they do not know anybody, full of uncertainty, worried about their families and eager to find a quick solution. When they find someone who wants to help them, they will place all of their hopes on this person or organization.

When people go on board, they are greeted with great expectation, the seafarers keen to receive good news. However, at the same time the seafarers will have a list of their needs already prepared and they will also hope that the visitor can offer assistance in communication with their families.

During the long period of time it may take to resolve the situation, life on board is hard. Seafarers must live in a deteriorating ship, performing minimal maintenance work, as they do not have the necessary means and facing potential conflict with other seafarers as they coexist in a confined environment with increasing stress.

It is important that seafarers are granted shore leave and have the opportunity to leave the ship for periods of time. Equally, they should have someone to trust and to whom they can explain their concerns. The crew will also appreciate the presence of the media, believing that more publicity will help in resolving their situation.

The legal perspective

According to the International Labour Organization (ILO) Convention C166 - Repatriation of Seafarers Convention (Revised), 1987 (2), the first person responsible for the repatriation of the seafarer is the ship owner. This convention was repealed upon the entry into force of the MLC 2006, but its content remains valid because it was incorporated into this new convention. If the owner is insolvent or evades its obligation, the flag state should assume the repatriation, something hardly ever happens, especially considering that these ships often sail under a flag of convenience. Subsequently, the country of nationality of the seafarers should repatriate them, but again, this is often also difficult.

In practice over the years, in most cases none of these parties have assumed responsibility and the International Transport Federation (ITF)[1] (3) has usually been the one to guarantee funds to pay for the repatriation of the crew.

In regards to the collection of wages earned by the crew, when the ship owner disappears or declares himself insolvent, the ship remains as the only guarantee to recover the owed amounts. The most common way to make this guarantee effective is through the arrest of the vessel and its subsequent sale in public auction.

However, this system has its drawbacks:

  • The process of sale of the ship in a public auction can take more than a year.
  • During this time the crew will live a tough experience and will also be in need of food, water and some fuel to maintain the minimum services on board.
  • The families, in their countries of origin, will go through economic difficulties that frequently lead them into debt.
  • There will be conflict with other creditors who will also try to collect money from the sale. Although the payment of salaries is prioritized, other creditors have a similar priority, especially port taxes.
  • The value of a ship, usually old, after a year of detention, is often limited to the scrap value.

Because of all the above, the crew's prospects are the collection of an uncertain and long deferred amount. Faced with this situation, seafarers are often asked to sign a power of attorney and agree to be repatriated, in the confidence that, once the ship is sold in auction, the recovered part of their salaries will be transferred to them. Some seafarers accept this solution, but others will not for the following reasons;

  • Distrust, sometimes because of previous experiences in which they never received any money. Some seafarers consider the ship is the only guarantee to receiving money and for this reason, they refuse to leave it.
  • Fear of returning home with empty pockets. During the time that the seafarer has not been able to transfer money to his family, this may have been indebted, with the promise that when he returns home, he will pay all the debts. In these circumstances, getting home without money can have serious consequences.
  • Suspicion towards the banks of the country of the seafarer. Once the ship is sold and the money is transferred to the seafarers, it can be that payment on their account will be delayed and also the applied exchange rate unfavorable. Many seafarers prefer to take dollars or euros in the pocket.

The role of different organisations

It is a complicated situation, both from the legal, economic and human perspective. No two cases are the same and each may be resolved in a different way. Many organisations have a role in managing the situation, legally and financially but particularly in supporting the seafarer.

It is very important that someone in a port takes responsibility for coordinating the situation and ensuring assistance is provided to the crew. Welfare organizations, like  Stella Maris (4), or other International Christian Maritime Association (ICMA) (5) centres use to assume that role. A Port Welfare Committee often assists them, where available. According to MLC 2006, Guideline B.4.3.3, it is recommended that ports establish committees responsible for welfare services for seafarers. These committees should include the most relevant maritime entities, including unions and welfare organizations. A key part of this role is to ensure a supply of food, either directly, or with the help of other entities such as Caritas, the Red Cross, etc.

The ITF may also play a very important role through their inspectors. It is usually this organisation that assists in making a lawyer available to the crew and guarantees the money for their repatriation.

The Port Authority should ensure the ship berths in an appropriate dock and that there is a guaranteed supply of water and fuel (or shore power) to the ship.

The Harbour Master Office will ensure that the ship remains in port and that it does not pose any obstacle or danger for the maritime traffic of the port.

H.3.3 Resolution of the case

As described, the outcome of many cases of an abandoned ship is the arrest of the vessel and its subsequent sale at public auction. Unfortunately this is often a prolonged process, with little guarantee of the seafarer receiving all of the money owed to them.   A good predisposition of the Port Authority, which in this case represents the rights of the Port State and of other potential creditors, will occasionally help to find a positive resolution, favorable to the interests of the crew.

H.3.4 A flash of hope

In order to avoid situations such as those described here, in 2001, a joint working group of the International Maritime Organisation and the International Labour Organisation adopted the Resolution A.930(22) (6). This establishes the requirement to ensure  the  provision  of  an  expeditious  and  effective  financial  security  system

  • assisting  seafarers  in  the  event  of  their  abandonment,
  • covering the expenses of their repatriation, which are to be met without costs to the seafarers;
  • ensuring the wellbeing of seafarers from the time of abandonment to the time of arrival at the place of repatriation;
  • ensuring the payment to the seafarers of all outstanding remuneration and contractual entitlements and
  • ensuring the payment to the seafarers of other expenses incurred during the period of abandonment arising from it.

In 2014 this resolution was included as an amendment to the Maritime Labour Convention (MLC), 2006, and entered into force in 2017 (7).

This very important achievement guarantees that in the case of an abandoned ship, the insurance would cover salaries accrued and not paid (for a period of at least two months) as well as repatriation expenses. Each ship has to be in possession of a Maritime Labour Certificate and the Maritime Labour Declaration, in which it should clearly state that the owner has this insurance. However, a problem can still exist if the ship owner has previously stopped paying the insurance premium when the ship arrives at port or if the vessel is abandoned in a port of a country that hasn’t ratified the MLC 2006.

It is still too early to evaluate the results of this amendment to the MLC 2006, but for now it seems that the number of ships abandoned in ports of the European Union has decreased. However, the abandonment of ships and consequently of crews worldwide, continues to be a threatening shadow and continuing work is needed to eradicate it.

References:

https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C166

and https://www.stellamarisbarcelona.org

 

[1] The International Transport Federation  is a global union federation of transport workers' trade unions