The Maritime Labour Convention 2006: The seafarer and the fisher

• Author: Luci Carey
• Position: MA (Hons), LLB (Hons). Research Associate, Centre for Maritime Law, National University of Singapore. My sincere thanks to Professor Kate Lewins for her guidance and wisdom when supervising the original version of this paper and to Associate Professor Paul Myburgh for his comments and advice on this later version. All errors, are of course, my own
• Pages: 14-36

(2017) 31 ANZ Mar LJ

14

THE MARITIME LABOUR CONVENTION, 2006: THE SEAFARER AND THE

FISHER

Luci Carey*

1 Introduction

Without those who work at sea, ‘half the world would freeze and the other half starve.’1 To the non-seafarer, the

scale of the shipping industry is almost unfathomable. There are over 50,000 merchant ships trading

internationally, registered in 150 nations.2 At the beginning of 2015, the world’s commercial fleet consisted of

89,464 ships with a total of 1.75 billion dead-weight tonnage.3 In 2013, developed countries imported goods worth

US$ 10 trillion,4 and more than 90 per cent of those goods were moved by ship. Without ships, ‘the commercial

world would grind to a halt’.5 Currently 1.2 million seafarers ensure that 90 per cent of ‘everything’6 reaches its

destination safely via maritime transport.7

Cargo transport is but one type of work at sea. The global cruise ship sector employed 939,000 people in 20148

and that sector continues to grow. An estimated 35 million fishers, employed in industrial capture fisheries,9

supply the world with 57.75 million tonnes of fish.10 Yet, despite the enormous scale of the industries, those who

work at sea remain invisible to the majority of consumers.

Work at sea is extremely dangerous, and not just because of the inherent dangers of machinery, ships and seas.

Seafarers spend ‘most of their working life stuck on a confined metal box … where intimidation is easier than in

most workplaces’.11 The isolated and isolating workplace leaves them vulnerable to bullying and harassment,

abandonment and non-payment of wages. Couple this with the changes in patterns of ship ownership12 and

management over the last 60 years, and seafarers are potentially exposed to serious abuse.13 Fishers are arguably

subject to even greater risk of abuse due to the criminal elements of illegal, unreported and unregulated fishing

and human trafficking present in that industry.

This article evaluates the impact of the 2006 Maritime Labour Convention (‘MLC, 2006’) on the unique working

conditions of seafarers through the lens of Australia’s implementation. The Australian experience is interesting

as it has taken a strong stance on foreign flagged ships via Port State Control (PSC) while at the same time there

have been vigorous debates regarding Australian cabotage laws including seafarer unions accusing the Australian

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

* MA (Hons), LLB (Hons). Research Associate, Centre for Maritime Law, National University of Singapore. My sincere thanks to Professor

Kate Lewins for her guidance and wisdom when supervising the original version of this paper and to Associate Professor Paul Myburgh for

his comments and advice on this later version. All errors, are of course, my own.

1 Efthimios Mitropoulos, 'Putting the Seafarer First' (2005) 20 Transport International Magazine. !

2 International Chamber of Shipping, Shipping and World Trade (2015) -shipping.org/shipping-facts/shipping-and-world-trade>.!

3 United Nations Conference on Trade and Development, Review of Maritime Transport, UNCTAD/RMT/2015 (14 October 2015) 30.!

4 United Nations Conference on Trade and Development, Key Statistics and Trends in International Trade 2014,

UNCTAD/DITC/TAB/2014/2 (2015) 2.!

5 Edgar Gold, ‘Bloodhounds, Scapegoats and Fatcats: Criminal Action, Professional Duty and Corporate Responsibility in the Maritime

Menagerie’ (2005) 24 (2) University of Queensland Law Journal 251, 258.!

6 United Nations, IMO (International Maritime Organization) .!

7 International Labour Organization, International Labour Standards on Seafarers tandards/subjects-covered-by-

international-labour-standards/seafarers/lang--en/index.htm>. !

8 Kate Lewins, International Carriage of Passengers by Sea, (Sweet & Maxwell, 2016) 4.!

9 International Labour Organization, Danger at Sea – Working in the fishing sector -the-

ilo/newsroom/features/WCMS_075579/lang>--en/index.htm> Fisheries and Aquaculture Department, Fishing People (2015) Food and

Agriculture Organization of the United Nations fao.org/fisher/topic/1387/en>. The FAO defines industrial capture fishing as

‘[c]apital-intensive fisheries using relatively large vessels with a high degree of mechanization and that normally have advanced fish finding

and navigational equipment’.!

10 United Nations Department of Public Information, Resumed Review Conference on the Agreement Relating to the Conservation and

Managment of Straddling Fish Stocks and Highly Migratory Fish Stocks (May 2010)

.!

11 Rose George, Ninety Percent of Everything (Metropolitan Books, 2013) 178.!

12 The traditional family owned shipping company is a thing of the past and today vessels are more likely to b e owned by financial

institutions that may not be interested in actual ship operations. See Gold, above n 5, 252.!

13 Thomas A Menash, ‘Seafarers in the modern maritime industry: the need for reform’ (2006) 2 Lloyds Maritime Quarterly 172. See also A

D Couper, C J Stanberry and G L Boerne, Voyages of Abuse, Seafarers, Human Rights and International Shipping (Pluto Press, 1995);

Alastair Couper, Hance D Smith and Bruno Ciceri, Fishers and Plunderers. Theft, Slavery and Violence at Sea (Pluto Press, 2015) and the

International Commission on Shipping, ‘Inquiry into Ship Safety: Ships, Slaves and Competition’ (2000).!

The Maritime Labour Convention, 2006: The Seafarer and the Fisher

!

(2017) 31 ANZ Mar LJ

15

government of breaches of the MLC, 2006.14 The article uses the results of this evaluation to predict the likely

impact of the MLC, 2006’s sister convention, the 2007 Working in Fishing Convention (‘WIFC, 2007’) and

highlights the additional challenges the WIFC, 2007 will face due to the vein of criminality that runs through the

fishing industry.

1.1 Historical Perspective

Historically, courts have recognised that seafarers should be afforded special legal protection. In England, the

Court of Admiralty was concerned with the ‘unconscionable use of legal rights’15 and retained jurisdiction over

the interests of seafarers. It displayed a ‘singular sympathy for the seafarer as a result of its awareness of the

harshness of his working environment’ and the power imbalance between shipowner and seafarer.16

In 1825, Lord Stowell described seafarers as:

[M]en generally ignorant and illiterate, notoriously and proverbially reckless and improvident, ill provided with the

means of obtaining useful information, and almost ready to sign any instrument that may be proposed to them; and

on all accounts requiring protection, even against themselves.17

Seafarers were the ‘favourites of the law’18 and by the end of the 19th Century, they were protected by the Merchant

Shipping Act 1894 (UK). This legislation shared many similarities with our modern regulatory code regarding

seafarers. For example, it required that seafarers were provided with a written agreement that covered the nature

and duration of the voyage, the hours of work, their role, wages and provisions. It even specified that where the

number of crew exceeded 100 there was to be a medical practitioner on board.19

The end of World War One generated a new awareness of workers’ rights. The International Labour Organization

(‘ILO’) was created in 1919 as part of the Treaty of Versailles and was the first of the United Nations’ (‘UN’)

specialized agencies. Some of the first ILO conventions concerned the protection of seafarers; for example, the

Unemployment Indemnity (Shipwreck Convention)20 and the Placing of Seamen Convention.21 Therefore, the

uniquely exposed position of the seafarer continued to be recognised.

Despite recognition and intervention in the early part of the 20th century, the vulnerability of seafarers remained

acute as the century drew to a close. In 1992, the Australian government produced the ground-breaking ‘Ships of

Shame’ Inquiry in response to the loss of six bulk carriers off the coast of Western Australia. The inquiry found

that, despite the legal recognition of the special vulnerability of seafarers almost 200 years ago, seafarers remained

subject to enduring risks of exploitation and abuse. Often seafarers were unable to communicate in English, were

not adequately trained and on several occasions crew members had been maltreated by shipowners and

operators.22 The inquiry provided the following examples of the poor treatment:

- the denial of food and the provision of inadequate food

- bashing of crew members by ships’ officers

- maintenance of two pay books, one for official records ... the other for the real lower level of pay

- under or non-payment of wages and overtime

- inadequate accommodation and washing facilities

- sexual molestation and rape

- depriving access to appropriate medical care

- crew members being considered as ‘dispensibles’.23

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

14 International Transport Workers’ Federation, ‘Australia’s cabotage undermining attacked at ILO’ (Press Release, 12 December 2016)

-events/press-releases/2016/february/australias-cabotage-undermining-attacked-at-ilo/>.

15 E J Black, ‘The F S Dethridge Memorial Address 1999, Admiralty Jurisdiction and the Protection of Seafarers’ (2000) 15 Australian and

New Zealand Maritime Law Journal 1, 5.!

16 Ibid.!

17 The Minerva (1825) 1 Hagg 347, 355; 166 ER 123, 126-127.!

18 Ibid, 127.!

19 Merchant Shipping Act 1894 (UK) s 209. Today this is required by the Maritime Labour Convention 2006.!

20 Unemployment Indemnity (Shipwreck) Convention, opened for signature 15 June 1920, C008 (entered into force 16 March 1923).!

21 Placing of Seamen Convention, opened for signature 10 July 1920, C009 (entered into force 23 November 1921).!

22 House of Representatives Standing Committee on Transport Communications and Infrastructure, Parliament of Australia, Ships of Shame

Inquiry into Ship Safety (1992) 32-36 [3.21] – [3.31].!

23 Ibid, 36 [3.31].!