The lockdowns implemented by the Countries is posing multiple complications to employment, allotment and safety of Seafarers. The travel restrictions imposed by governments around the world have created significant hurdles to crew changes and repatriation of seafarers which is giving rise to a humanitarian crisis as well as significant concerns for the safety of seafarers and shipping.
IMO has intervened promptly by urging its Member States to designate as key workers, so they can travel between the ships that constitute their workplace, and their countries of residence and has constituted Seafarer Crisis Action Team to support the Seafarers.
On 1 July, 2020 IMO published Circular Letter No.4202/Add.23, providing recommendations for port and coastal states on the prompt disembarkation of seafarers for medical care ashore during the covid-19 pandemic. The Circular provides recommendation on what is to be done when a ship reports a suspected or confirmed case of COVID-19 onboard and such other situations.
In India, DG Shipping issued Instructions vide DGS Order 04 of 2020, dated 20.03.2020, DGS Order 39 of 2020 (to be read with DGS Order 5 of 2021) to all major and minor ports for dealing with COVID-19 pandemic. These Procedures mandate Covid-19 test and quarantine period. Accordingly, Ship management companies are implementing new crew change procedures.
The mental health of the Seafarers is also a concern. Companies such as Wilhelmsen, VG Group are taking positive steps towards ensuring continued communication in order alleviate anxiety among the seafarer such as enabling crew to increase their interaction time with their family. For example, in light of the evolving COVID-19 situation, mental health support is heightened by way of awareness messages and extending further support from shore with crew to address the concerns surrounding the progress of the pandemic and provide port updates and safety bulletins as it is essential to keep the crew updated on the latest progress of the outbreak situation and measures for protection. Measures are taken by Ship Manager to familiarize the Crew with the safety guidelines focusing on safety measures to be taken prior to calling, during stay and after departure. VGroup, a Ship Management Company, has launched an “Employee Assistance Programme (EAP)” for seafarers’ onboard vessels in their Ship Management and , fleets providing free, confidential counselling support via telephone and online chat. Some other companies are live streaming exercise classes, yoga meditation classes, stress management classes live to ships. In some vessels, all staff has been advised to order dry provision items for up to 3 months. The Ship Management companies are liaising with their vendors to arrange for the supply accordingly. They are also trying to arrange supplies, including extra stores, whenever vessels are calling major supply ports. They have advised the vessels to increase the quantities of stores being ordered, as this disruption to world trade due to Covid-19 is expected to continue further for next few months.
A legal issue that Ship management may face is that the seafarers who would not sign an extension to their employment agreement. From a legal point of view, it is the seafarers right to do. The Seafarers also have right to be repatriated once their duty is over. It is duty of the company to make the necessary arrangements to get those seafarers home. However, Companies are unable to do so and the Seafarers are stranded all across the globe as the Travel restrictions imposed by the States.
There are various laws and regulations, the Ship Owners are bound by in terms of health and safety of seafarers. India ratified the Maritime Labour Convention, 2006 on 09.10.15 and same came into force for India with effect from 09.10.16, in accordance with Article VII (4) of the MLC-2006. As per the MLC, there are various certificates such as Maritime Labour Certificate and Inspections, Medical Certificates, Certification of Training and Qualifications which need to be maintained. On 7 April, 2020, International note on Maritime Labour issue and Coronavirus addressed the necessity of maintaining these certificates are temporarily relaxed. DG Shipping issued DGS Order 17 of 2020 which provided extension to validity of Seafarer’s Certificate and Ship’s Statutory Certificate due to Covid-19 Pandemic. What needs to be seen how long such automatic extension will continue and the impact of such automatic extension on the Safety Standards that are to be maintained. It is possible that the Ship management Companies will also face many employment disputes as the Collective Bargaining Agreements are mostly silent about Quarantine periods and delay in Crew Change due to Force Majeure.
Another question is CBAs and Maritime Labour Officers provide for compensation for Operational risks, whether contracting Covid-19 is Occupational Hazard or not is a question which need to be considered in detail and trauma the trauma undergone due to extended service beyond the recommended will be compensated or not, would be the questions seafarers will raise sooner or later. It is pertinent to note that DGS Order No.21 of 2020 states that it is the responsibility of ship owner to ensure that all the safety precautions as per standard health protocol are followed during the crew change. The question of default by the ship owners and the consequences which would follow legally are not far into the future.
Shipping is the only viable method for transporting goods around the world, at least as of now. The seafarer crisis caused by the inability to conduct crew change and increasing restrictions, reducing demand for certain category of goods will impact the Global supply chain and the shipping industry in general. A key player who will be involved in disputes which will arise is the P& I Club, which provides insurance. The P&I Clubs undertake to cover the Seafarers’ risks and personal injury/medical liabilities with a recognized P&I Club while the seafarers are under contract. It will be interesting to what will be the position that these clubs take when and if the seafarers contract the Covid-19 Virus.
A point of dispute which will arise in future is with regard to Ship manager’s responsibility in containing the spread of Covid-19. The Company agrees to ensure that all Crew have passed a medical examination with a qualified doctor certifying that they are fit for the duties for which they are engaged and are in possession of valid medical certificates. If there is a lapse and the crew members are not examined properly or there is negligence on the part of Ship Management to conduct medical examination for the crew members and when they are already on board and there is spread of the virus among the crew, the other crew members as well as the owner of ship might sue the Ship Management for breach on the ground that they failed to comply with the provision of contract and there is negligence on the part of the Ship Management. However, the Manning agreement contain clauses which that the Ship Manager shall not be liable for any acts or omissions of the Seafarers, even if such acts or omissions are negligent, grossly negligent or wilful. Hence, it would remain on case to case basis, how the contracts will be interpreted. Another question which is plausible between Seafarers and Ship Managers, is whether the mandatory quarantine when on board will be considered as medical leave or as on duty and how the wages are calculated.
Most of the Ship Management Contracts would contain, the Force Majeure Clause. It would be decided on case to case basis on how the term would be interpreted in disputes between Ship Managers and Ship Owners. The question was discussed in Rashmi Cement Ltd. v. World Metal & Alloys, O.M.P.(I)(COMM) 117/2020, High Court of New Delhi, 18 June 2020.
The Pandemic has affected ship operation and office operation for Ship Management Companies. With regards to ships, the challenges are identified in various aspects. As the needs of global economy is changing, the demand for goods are also changing which is affecting the commercial employment of most types of vessels. As worldwide trade was suffering and the productions were decreasing, shipping in its entirety was grinding to halt. However, as the global market slowly ‘unlocking’, inevitable, shipping industry will also survive. The question is how much of it will survive.
Dhanya T Mallar 