TIM CARTER, KRIS DE BAERE
B.2.1 Introduction
As shipping is an international industry, consistency in the way it is regulated in all maritime nations is important. The regulatory control of shipping was preceded by a growing body of contract law, which was mainly aimed at financial aspects and related topics such as the insurance of hulls and cargoes. From the middle ages, ports also had legal controls on vessels and quarantine arrangements to reduce the risk of importing diseases.
Governments in the traditional maritime nations of Europe and North America became active in the regulation of safety and health aspects of shipping during the second half of the 19th century. This was in response to public concerns about the increasing scale and complexity of shipping with the introduction of steamships, the growth in the expression of seafarer concerns through maritime trade unions and the loss of life at sea.
Regulations, especially when concerned with maritime safety, were usually similar across nations, with one leading – often the USA or UK – and others following. Some issues, such as conventions on navigation lights and on port health controls were agreed more formally at international meetings. As shipping became ever more international, with ownership, registration, crewing and voyage patterns no longer tied to the traditional maritime nations, these arrangements became ever less effective.
During the 20th century, three bodies that are now United Nations Agencies became the major forums through which international regulations for maritime safety and health were developed. These are the International Labour Organisation (ILO), the International Maritime Organisation (IMO) and the World Health Organisation (WHO). Formal law making remains with the states in which ships are registered (flag state control) or where they trade (port state control), but these laws now have to align with the conventions agreed at meetings of the international agencies.
B.2.2 International legal instruments
The UN Agencies have a range of legal instruments that they adopt as the basis for common international standards.
- Conventions are the most binding form of instrument. A convention is an agreement worked out by interested parties (see below) at a series of meetings. It represents a set of requirements that the national governments that are ‘parties to the convention’ (i.e. take part in decision taking at Agency meetings) have to adopt into their national law (often in the form of ordinances or regulations) before they can ratify the convention. A Convention then comes into force when a sufficient number of nations has ratified it. Once this occurs, countries that have not adopted the necessary laws and therefore not ratified the Convention, can find there are barriers to their ability to trade internationally.
- Recommendations propose methods by which conventions are implemented. They may be incorporated in a convention as a subsidiary code or published separately by the Agency, often when insufficient agreement is reached to produce a Convention.
- Guidelines cover detailed aspects of the implementation of a convention or recommendation, for instance the training requirements needed to ensure competence or fitness.
- Technical standards produced by other organisations may be adopted by Agencies as the basis for agreements. These often relate to engineering or analytical methods.
- Regulations are used by some Agencies such as the World Health Organisation, where essential actions to secure protection involve many different parts of the public and private sectors and where rapid international action may be needed. On such example is an epidemic infection.
B.2.3 The International Labour Organization (ILO)
Established in 1919, the ILO sits in Geneva. It was incorporated as the first Agency of the United Nations in 1946.[1] Several of its early conventions were concerned with the health of seafarers, and as the sector became more international with increasing concern about the health, safety and welfare of seafarers, its maritime programmes widened in scope. The core purpose of the ILO is to ensure that workers have decent working conditions in terms of risk reduction, fair employment practices and the absence of discrimination.
All its work is on a tripartite basis, with representatives of governments, employers and workers participating in the development of Conventions and Recommendations.[2] Other organisations, such as those representing professions, trade associations and other interest groups may attend and contribute but do not have any voting rights.
Towards the end of the last century, the multiple instruments concerned with seafarers were seen to be inconsistent, overlapping and, in many cases poorly implemented. It was agreed that a single consolidated Convention on maritime working conditions was needed and the Maritime Labour Convention (MLC) was agreed in 2006. Ratification by maritime nations took several years as national laws were adjusted or made in order to meet the Convention’s requirements. It is now in force and forms the basis for many aspects of maritime health practice.
Maritime Labour Convention, 2006.
The main parts of MLC relevant to maritime health are:
1.2 Medical Certificate
2.3 Hours of rest and work
3.1 Accommodation and recreational facilities
3.2 Food and catering
4.1 Medical care at sea and ashore
4.3 Health and safety protection and accident prevention
4.4 Access to shore based welfare facilities
4.5 Social security
The MLC specifically includes:
- the requirement for seafarers to carry a valid medical certificate
- the requirement for ships to carry medical guides.
- recommendations regarding the medical supplies and equipment carried on board, and the necessary training for seafarers to use them,
- occupational safety and health
- hours of rest and work,
- food, accommodation and other matters directly or indirectly relevant to seafarers safety and health.
Supplementary guidelines are published for a number of these requirements, for instance: medical examination and certificate issue (jointly with the International Maritime Organisation)[3]; the training of ship cooks[4]; health protection and accident prevention[5].
The broadly similar Work in Fishing Convention, 2007 (Number 188) provides similar protection for this sector. However it has only recently come into force as ratification by members has been slower.[6]
Some other ILO Conventions also have some relevance such as Occupational Health Services, 1985 (number 161).[7]
B.2.4 The International Maritime Organization (IMO)
The International Maritime Consultative Organisation was established as a UN Agency in 1948, becoming the IMO in 1982.[8] It sits in London and its mission is summarised as ‘safe ships and clean seas’. It has agreed a series of Conventions to further these aims[9] and several have direct implications for maritime health practice:
- SOLAS (safety of life at sea) includes arrangements for responding to maritime incidents and disasters, including search and rescue service, medical evacuation arrangements and telemedical advisory services. The International Safety Management (ISM) code was introduced to supplement this convention with the aim of improving safety practices on board ships.
- MARPOL (marine pollution) also covers arrangements, including risk management and emergency medical and other responses, to incidents involving dangerous cargoes.
- STCW (standards for training, certification and watch keeping) outlines the competencies required for maritime duties, with specified training arrangements, including the training courses in first aid and medical care at sea. This includes standards of medical fitness (overlap with ILO MLC, 2006) A broadly similar Convention covers the fishing sector (STCW(F)).
These three conventions, together with the MLC are often termed the four pillars of maritime safety and health.
At IMO the voting representatives are from the maritime authorities of member countries, in practice virtually all maritime nations. Employers, trade unions and professional or trade bodies have ‘consultative status’. This means they can speak or make proposals for agenda items, but do not vote on them. In addition, the secretariat plays a less active role in developing agendas and proposals than is the case with ILO. At IMO it is usually the members who initiate (and sometimes block) new proposals.
IMO works mainly by updating and extending existing conventions. This means that they do not need to go through the slow process of ratification that characterises the adoption of ILO instruments.
B.2.5 The International Safety Management (ISM) Code
The human factor is generally regarded as one of the most important causes of accidents at sea, as exemplified by the capsize of “Herald of Free Enterprise” on 6th March 1987, the Scandinavian Star disaster on 7th April 1990 and the capsize of “Estonia” on 28th September 1994.
In 1989 the IMO adopted “Guidelines on management for the safe operation of ships and for pollution prevention”. In the following years the International Management Code for the Safe Operation of Ships and for Pollution Prevention (the ISM Code) was developed. Adopted in 1993 by the IMO, it became mandatory for all member nations from 1998.
The purpose of these Guidelines was to provide those responsible for the operation of ships with a framework for the proper development, implementation and assessment of safety and pollution prevention management in accordance with good practice.
The objective was to ensure safety, to prevent human injury or loss of life, and to avoid damage to the environment, in particular, the marine environment, and to property.
(http://www.imo.org/en/OurWork/HumanElement/SafetyManagement/Pages/Default.aspx
A safety management system (SMS) must be established by "the Company", which is defined as the ship owner or any person, such as the manager or bareboat charterer, who has assumed responsibility for operating the ship.
The Company must also establish a policy for achieving the objectives, including the necessary resources and shore-based support. One or more designated persons ashore shall have direct access to the highest level of management. Procedures shall be documented and compiled in a Safety Management Manual, a copy of which should be kept on board.
Effective implementation of the ISM Code should lead to a move away from a culture of "unthinking" compliance with external rules towards a culture of "thinking" self-regulation of safety - the development of a 'safety culture'. The safety culture involves moving to a culture of self-regulation, with every individual - from the top to the bottom - feeling responsible for actions taken to improve safety and performance.
The requirements of the ISM Code lead to the production of a wide range of documents and reports as a part of the ship’s safety management system (SMS) – documents which also have the potential to incriminate those who produced them. In recent years this has been discussed as a potential conflict of interest.
B.2.6 World Health Organisation (WHO)
Created as a UN Agency in 1948, the WHO has its headquarters in Geneva. [10]There had been earlier international health bodies as well as a long history of multilateral, international collaboration over the control of epidemic infectious diseases. Members of the WHO are national governments, represented by their health ministries. WHO has a limited and decreasing involvement in occupational and maritime health, now that infectious diseases feature less prominently as risks. Its major impact is through the International Health Regulations, which determine port health clearance procedures.[11] It is also an important source of advice on the current status of infectious diseases in different parts of the world.
The WHO is also the publisher of the current International Medical Guide for Ships (IMGS), and the list of medications and medical equipment that go with it.[12] [13]It is a statutory requirement (under MLC) for ships to carry either the International Guide or an equivalent national guide approved by the flag state of the vessel.
As can be seen from the descriptions in 12.3-5, maritime health practice is at the interface between three different UN Agencies, each with their own working methods and priorities. This means that it can be difficult to ensure a holistic view is taken about the best way to deal with any health risk. It can also mean that the pace of action is glacial as political boundaries between the ILO, IMO and WHO often have to be re-visited and agreed before any work is initiated.
B.2.7 Regional bodies - European Maritime Safety Agency (EMSA)
[14]
EMSA was founded following the catastrophic oil pollution incidents caused by the loss of the tankers Erika and the Prestige. It is a European Union agency charged with reducing the risk of maritime accidents, marine pollution from ships and the loss of human lives at sea by helping to enforce the pertinent European Community legislation.
EMSA 'inspects the inspectors' of classification societies, assesses Port State Control systems, tracks problem ships, and safeguards the standards of on board equipment. For example, EMSA developed the THETIS tool to support the New Inspection Regime (NIR) for Port State Control of the Paris Memorandum of Understanding.
EMSA helps Europe respond better to major oil spills by maintaining 17 fully equipped stand-by oil spill response vessels around Europe, analysing satellite images to identify polluting vessels, and ensuring that ships comply with environmental rules.
Shipping accidents happen, and when they do, accident investigation can help identify problems, and to learn lessons that may prevent accidents in future. EMSA manages the European Union's (EU) European Marine Casualty Information Platform (EMCIP) database for sharing marine accident investigation information, and it is helping to improve standards in accident investigation across coastal states. Since 2007, EMSA has published an annual Maritime Accident Review.
To date EMSA has not been active on health issues. However, the EU does have a number of directives that determine aspects of maritime health in member states, such as EU 92/29 on the minimum safety and health requirements for improved medical treatment on board vessels.[15]
[1] ILO history https://www.ilo.org/global/about-the-ilo/history/lang--en/index.htm
[2] ILO working methods https://www.ilo.org/global/about-the-ilo/how-the-ilo-works/lang--en/index.htm
[3] ILO/IMO Guidelines on the medical examinations of seafarers https://www.ilo.org/sector/Resources/codes-of-practice-and-guidelines/WCMS_174794/lang--en/index.htm
[4] ILO Guidelines on the training of ships cooks https://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---sector/documents/normativeinstrument/wcms_218575.pdf
[5] ILO Guidelines for implementation of the occupational safety and health provisions of the Maritime Labour Convention, 2006 https://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---sector/documents/normativeinstrument/wcms_325319.pdf
[6]ILO Convention 188, work in fishing https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C188
[7] List of ILO Conventions and Recommendations https://www.ilo.org/dyn/normlex/en/f?p=1000:12020:::NO:::
[9] The IMO does not make its conventions and other instruments freely available on the web. These need to be ordered and paid for. Catalogue at http://www.imo.org/en/Publications/Pages/Home.aspx
Summaries, but not the full text, of conventions can be found at http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/Default.aspx
[10] WHO home http://www.who.int
[11] WHO International Health Regulations http://www.who.int/ihr/publications/9789241580496/en/
[12]WHO International Medical Guide for Ships http://apps.who.int/iris/bitstream/handle/10665/43814/9789240682313_eng.pdf?sequence=1
[13]WHO IMGS Quantification Addendum (for medical stores) http://apps.who.int/iris/bitstream/handle/10665/44341/9789241547994_eng.pdf?sequence=1
[14] European Maritime Safety Agency http://www.emsa.europa.eu/
[15] EU Directive 92/29 https://osha.europa.eu/en/legislation/directives/17