READ: Maritime Labour Law – The Regime Behind the Invisible Global Workforce (Carina Radler)

Top view of photo of boat on sea. (Image source: Photographer Dominic Reiter - www.pexels.com)

By: Carina Radler

American University of Beirut

Abstract

Seafarers are often referred to as the invisible workforce. Most of us are not aware that more than 90 percent of our goods are transported via ocean routes. This is a circumstance we do not even recognise, but at the same time impacts our lives in a significant way. (Mannov, 2015)

Showcasing by the example of the new orientation in the maritime sector in India, this paper aims to depict what importance is given to the rights of seafarers, which legal documents exist, and to what extent they are implemented and adhered to. This is conducted by introducing the example of the Indian Maritime Agenda 2010-2020. Based on the current legal framework, the Indian policy paper will be analysed subsequently. Eventually, the paper tries to show to what extent the recent trend of corporate social responsibility codes (“CSR”) is an enhancement towards better working conditions for seafarers. Finally, an analysis will be made on the Maritime Agenda 2010-2020 and its efforts towards maritime labour law, as well as its meaning for international affairs.

The Indian Maritime Agenda 2010-2020 – competing in global trade but not in maritime labour law?

India has an old maritime history because of its natural coastline of approximately 7,500 kilometers. Nevertheless, India itself never developed as an industrialised maritime country. The supply of seafarers came only into existence simultaneously with the Western colonial operations in India. Due to the massive seaborne colonial trade, significant labour force had to be sourced locally, which led to a high number of Indian seafarers. (Yang, 2010) Therefore, the country played an important part at the lower level of shipping, while on a larger scale, colonial powers could benefit from their workforce. Nevertheless, India was primarily a labour supply nation, and the country’s ship-owning interest has been marginal. After the independence from Great Britain in 1947, the Indian government adopted changes in policies explicitly aiming at developing India’s national shipping industry. (Rao, 1965) However, these changes seemed to have lacked effectiveness and diminished soon after. Some decades later, in the 1990s, the shipping industry in India underwent significant changes, as the market-oriented economic reforms intensified in the 1990s. There was considerable deregulation of the shipping industry, leading to the privatisation of seafarer training and the liberalisation of employment practice, among other things. (Yang, 2010) Compared to the worldwide maritime trade industry, India was lagging behind. Nevertheless, the rapid growth in its economy demanded for a more comprehensive logistics sector. As a result, the Maritime Agenda 2010-2020 (in the following: Maritime Agenda) was born. It is a document consisting of more than 450 pages, covering mainly issues relating to ports, but then also touches upon the topic of shipping and related aspects. In the Maritime Agenda’s foreword, G. K. Vasan, the Minister of Shipping, refers to the economic need of substantial investment in ports and the shipping sector, in order to sustain the years of growth to come. According to him, the Maritime Agenda identifies priority areas for the government’s prospective intervention. (Government of India, Maritime Agenda 2010-2020) In its introduction, the Maritime Agenda depicts the crucial role of ports in the country’s economic growth in its first major chapter. A more comprehensive infrastructure and ports are needed, in order to achieve the goal in turning Indian ports into world-class facilities. In this context, the Maritime Agenda shall serve as a steering document. Under its second main chapter, the shipping part, the agenda refers marginally to seafarer’s labour conditions. Following the headline “legislation updation” (p. 425f), the Maritime Agenda relates to the Maritime Labour Convention (MLC) only as the last item in its enumeration, following seven other conventions that apparently needed to be implemented in India (eg Ballast Water Convention, Anti Fowling Convention). Under the section “Human Resources Development”, the implementation of a project of welfare for seafarers is indicated. Moreover, India wants to invent further pension contributions, and increase the infrastructure for seamen’s hostels. In a single sentence, the Maritime Agenda refers to the adoption of various conventions of the International Maritime Organization, which would lead to an increase in the strength of regulatory regimes, according to the document. However, the Maritime Agenda dedicates vast attention to the Indian Maritime University, that is closely linked to the Ministry of Shipping. Concentration lies on promoting maritime studies, educational courses, research, training for specialised areas and support to the growth of the maritime sector in general. (Government of India, Maritime Agenda 2010-2020)

The preliminary outcomes of the Maritime Agenda

The recent growth in the number of Indian seafarers is only one of the results due to measures taken by the government in the last decade. Speaking of increasing the global share of Indian seafarers from 6% to 9%, the agenda has so far already reached its goal. (India: Government has taken various policy decisions and initiatives to increase the share of Indian seafarers at the global level, 2018) Next to increasing capacities, the aim was to improve the standards of maritime training, as the agenda makes it very clear that an increase for workers in the international sector can only be reached with high standards in education. This, for instance, includes a raise of on-board training opportunities and improvement of the examination and certification system. (India: Employment of Indian seafarers grows by an unprecedented 35 percent this year, 2019) The training curriculum for the officers and the ratings were revised in 2016, not only to meet the general global standards, but also to meet the expectations of foreign employers. To regulate the training institutes of the private sector, a system was designed to assess the quality of the institutes on several parameters such as infrastructure, quality of students-intake, quality of faculty, pedagogy, performance in examination, on-board training and placement of students. To ensure further increase on the supply side, a 15-year-old ban on the setting up of new training institutes or increasing the capacity of the existing training institutes was lifted with certain limitations. (Government of India, Maritime Agenda 2010-2020, 2011) Shri Mandaviya, the Minister of Shipping, also informed that important initiatives had been taken in recent years to enhance employment opportunities for the youth in the maritime sector. A policy shift was made by holding the training institutes responsible for on-board ship training of the students as well. Before, training existed only in classrooms. (India: Employment of Indian seafarers grows by an unprecedented 35 percent this year, 2019) Since 2014, India has further allowed domestic shipping companies to operate foreign flag vessels (under the so-called “flags of convenience” regime), dumping a major restriction that would help the sector to attract more foreign business. Because India is known to have strict regulations for registering ships, this will give shipping companies more flexibility. (The Economic Times India, 2014) Seafarers are being employed on ships through secured paths, which means either by Indian shipowners on Indian flag ships, regulated under the Merchant Shipping Act 1958, or on foreign flag ships through registered Recruitment and Placement Services License under Merchant Shipping (R&PS) Rules 2016. With employment and welfare of Indian seafarers being regulated through relevant rules framed by following the Maritime Labour Convention 2006 (which India ratified in 2015), more and more foreign shipowners are engaging Indian seafarers on-board their ships. (Government of India - Ministry of Shipping - Press Information Bureau, 2019) As published by the “Times of India” on 9 July 2019, human rights abuses of Indian seafarers are not uncommon. The National Human Rights Commission (NHRC) in India claimed that nearly 200 Indian seafarers are in foreign jails, youth were cheated on their maritime trainings as the institutes would not provide them with further jobs after training, and by that time more than 40 Indian seamen were on ships abandoned off coast of the UAE and a large number stranded on ships close to Iran. Moreover, at the conference meeting together with the NHRC and the head of the Directorate General of Shipping, the NGO pointed out that illegal merchant navy institutes are cheating on aspiring seafarers, they are raking in money at the same time, and the Indian police would not accept complaints by those trainee seafarers who have been cheated of lakhs of rupees. It is estimated that more than 10,000 young seafarers are cheated on every year by such institutes. (Rao C. S., 2019) Published only six days later, it is reported that the Indian government, together with the National Human Rights Commission, works on creating a “Human Rights at Sea” agenda. Due to recurring abuses at sea, which include arrest and detention of Indian seamen, as well as unapproved courses and issuing course certificates without attendance, the government seeks to create a comprehensive and valid document. Its scope should cover issues such as slavery, trafficking, illegal employment, recruitment processes, and currently available and future remedies. (The Maritime Executive, 2019)

What kind of legal spaces seafarers touch upon

Speaking of human rights and abuses at sea, it is necessary to discuss the legal space of workers at the ocean. To what kind of workplace are seafarers bound? First of all, they are an example of a unique group of occupation: they migrate, or rather circulate, by moving on ships through various jurisdictions in an ostensible easy manner. (Borovnik, 2004) The maritime trade has often been acknowledged as the “first globalized trade sector”, and as such it brings an amount of challenges to the international legal system. Seafarers come from a variety of countries, move inconspicuously between jurisdictions and are dependent on employers and ownership arrangements that are fluent alike. This creates links of this special occupational group to many different aspects, among them extra-territoriality, the tensions between the “Global North” and the “Global South”, and challenges that come due to the regulations manifested in the “flags of convenience” systems. (McConnell, 2009) Strictly speaking, there is a huge variety of different legal connecting factors: flag state, port state, vessel owner, crew agency, national waters and high seas. (Campling & Colás, 2018) Nevertheless, maritime labour law has a long developing history.

History of laws on work at sea

Man standing and facing boats on water. (Image source: Photographer Maël Balland - www.pexels.com)

Since the early days of organised commerce, to facilitate the carriage of goods, the maritime trade system has functioned through codes of commerce, bills of exchange and bills of lading, and through charters, contracts, cargo insurance, arbitrators, laws, and ethics. Many of the established instruments stem from the British in the nineteenth century, as they were the predominating merchant fleet back then. (Couper, 1999) The United Nations Conventions on the Laws of the Sea (UNCLOS) is an international agreement that defines rights and responsibilities of nations regarding their use of the world’s oceans, establishing guidelines for the environment, businesses, and the management of natural marine resources. It is considered as the most essential agreement in relation to the sea. The UNCLOS came into force in 1994, whereas India has been a party to the convention since 1982. Under UNCLOS, it is stipulated that ships are able to sail the seas of the world in unimpeded freedom. The only law a ship must adhere to on the high seas is the law of the flag under the country it is flown (the flag state). When a ship enters a foreign port, it is subject to the jurisdiction of that country. This mix is responsible for contradictions and conflicts in the globalised world. (Couper, 1999)

The ILO and its commitment to maritime labour

The International Labour Organisation (ILO), together with the International Marine Organisation (IMO), is the most important lawmaker in terms of working and living conditions of seafarers onboard. The IMO started as the Inter-Governmental Maritime Consultative Organisation (IMCO), which was the result of a Convention of the United Nations Maritime Conference in Geneva in 1948, dedicated to shipping matters. In 1982, the IMCO turned into the IMO, a specialised agency of the United Nations. Among the main conventions adopted by the IMO is the International Convention for the Safety of Life at Sea 1974 (SOLAS) and the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978 (STCW). The work of the ILO and the IMO overlaps, to some extent. Therefore, an agreement made in 1959 provided for co-operation between the two organisations. Since the creation of the ILO in 1919, it was very productive and adapted 36 conventions and 26 recommendations concerning seafarers. ILO member states are required to ratify a new convention within a specific amount of time. However, the implementation and enforcement of a given member state is an aspect where the ILO, despite of its efforts, cannot intervene. (Couper, 1999)

ILO’s “Masterpiece”: The Maritime Labour Convention

In 2006, the Maritime Labour Convention (MLC) was adopted by the ILO in order to specifically address concerns regarding inequalities in the economic law regime and global trade, as well as the lack in addressing the costs of labour and trade. (Bauer, 2008) The MLC is based on one side on helping to secure decent work for workers (seafarers), and on the other side on helping to achieve fair competition. (McConnell, 2009) Further, it complements the regulatory regime and links it to ship-source marine pollution, seafarer education, and ship safety and security. The UNCLOS addresses many aspects of the ocean in practice but it lacks to acknowledge the seas as a workplace or a site for human rights. Rather, these matters are left to the “default” jurisdictions of the applicable flag of convenience state. In this regard, the MLC operates as a modern multilateral convention, developing specific responsibilities for both flag states and port states. Besides, it introduces a new player in this jurisdictional web, namely states with labour-supply responsibilities that occur apart from a relevant flag state. (McConnell, 2009) Additionally, the entry into force requirements are unusually demanding for an ILO Convention. The MLC deals with major problems that are rooted in the maritime labour sector, among them poor working conditions in the shipping sector, ownership changes, development of mixed nationality crews in global networks, ship managers, crew managers, and labour supplying agencies and increased complexity in the maritime work place that has an impact on the health and social security of workers, to name only a few effects. (McConnell, 2009) The primary purpose of the MLC was not merely to consolidate existing labour standards and to bring coherence into the texts adopted since 1920. The new convention was principally designed to meet the serious concerns expressed by both seafarer and shipowner communities, and to face the fact that existing instruments were losing their relevance. Their substance was of good quality, but they were unevenly applied and enforced and often poorly ratified. Thinking from a broader systemic perspective the underlying concern was that, with the increasing level of regulation in other aspects of shipping operations and increased international competition, labour would be the one remaining area for cutting costs. (C. Doumbia-Henry) Author McConnell points out that implementing the MLC will typically engage maritime administrations, labour departments, and agencies or departments involved in social security. (McConnell, 2009) The MLC, seen as a “single package-deal instrument”, leaves little room for flag states to choose the seafarer’s rights they wish to implement. A country ratifying the MLC must consequently put in the place the correspondent national legislation in order to make it enforceable and to ensure its compliance. States have to bear in mind that the MLC comprises the full spectrum of global labour standards, combining in itself 68 ILO instruments. Inside the ILO, the Special Tripartite Committee oversees the working of the MLC by means of detailed periodic reports for submission, both by flag states and port states. These reports are used to measure the effectiveness by national systems of inspection. The most far-reaching instrument of the MLC is the port-state control system (PSC), which already has existed since the 1980s. The PSC is a crucial feature in controlling standards covering maritime safety, environmental protection and concerns regarding the working and living conditions of seafarers. Through various inspections carried out by PSC, it becomes clear that flag states take their obligations under the MLC quite seriously. Nevertheless, this movement under the auspices of the United Nations has to struggle with the fact that universally agreed human rights provisions are very problematic to be effectively implemented. (Payoyo, 2018)

Enforcement mechanisms according to the MLC

Following the MLC regime, there exist three links towards enforcement: the flag of convenience state, the port state responsibilities and the labour supplying responsibilities. According to the MLC, every member state is responsible for ensuring the implementation of the obligations for its flag ships. Each member is required to adapt an effective system for the certification and inspection of maritime labour conditions. In terms of port state responsibilities, a foreign ship coming to a port is subject to the jurisdiction of this state, and therefore has to adhere to its inspection, also in terms of compliance of seafarer’s labour laws. Moreover, the MLC provides for another enforcement possibility, referring responsibility also to the member state who is supplying seafarers. (Christodoulou-Varotsi & Pentsov, 2008)

Maritime labor and its relations to CSR codes

Besides the “usual” legal framework, which consists of lawmaking in the designated way concerning the international or national level, companies more and more seek the implementation of self-imposed policies. Corporate social responsibility (CSR) has emerged to become a major subject for both the academic research and management practice. However, it is, mostly, perceived as a managerial strategy that seeks to integrate and deal with sustainability challenge. The IMO has already attempted to adjust its policy with the United Nation's 2030 Agenda on Sustainable Development. Hence, the UN has itself committed to establish a sustainable maritime transportation system by sustainability initiatives in a broader CSR framework. (Fasoulis & Kurt, 2019) Due to media revelation of a number of exploitative practices by multinational corporations, among them poor labor standards, tax avoidance, environmental destruction, many multinational corporations are encouraged and have the feeling to develop their own written policies relating to their newly established CSR agendas. (Zyglidopoulos, 2002) As the consequences of both poor regulation and regulatory avoidance have been drawn to public attention, there is an increased run in businesses on the public exercise of CSR. (Sampson & Ellis, Elusive corporate social responsibility (CSR) in global shipping, 2015) Large shipping companies and those acting in more “sensitive” areas, as for example in oil and gas, have also developed an interest in the support of ethically responsible business operations. The focus of their efforts and their motivation in effectuating them, however, remains complex. Some of the wider literature suggest that such activities can take the form of “window dressing”, with regards to environmental aspect sometimes termed “green-washing”. (Sampson, "Seabirds Matter More Than Us!", 2016) In this regard, author Robinson argues that CSR may be seen as a mere exercise in public relations, forasmuch corporate policies in glossy brochures may lack having a beneficial impact in real life and may not reflect any honest commitment on behalf of the corporation to have a positive social impact or protect the environment. (Robinson, 2010) According to the published literature, there are three major reasons for companies to adapt CSR codes: first, because of the role of the company’s reputation and its impact on customer’s decisions (Walters, Sampson, James, & Wadsworth, 2012); second, the belief that the application of CSR leads to better financial results (Griffin & Mahon, 1997); third, normative affiliations and the role of paternalism to CSR (Sampson, Walters, James, & Wadsworth, 2014). In the strict sense, it is only corporate social responsibility when the motivation behind is driven by the latter case. Then it can be perceived as “genuine” CSR, which comprises activities going beyond regulatory minimum requirements, that are not only about the pursuit of profit maximisation. (Carroll, 1999)

Applied examples of CSR in companies

Container ship at sea. (Image source: Photographer Pixabay - www.pexels.com)

In the following, the paper depicts three examples of an application of CSR policies in the shipping industry, following Professor Sampson’s paper on “Seabirds matter more than us!”.

The first example is the case of Vizla, a large shareholder corporation who operates in a highly regulated environment, the (oil) tanker sector. Therefore, Vizla holds high public commitment to both safety of employees and of the environment. The company demonstrates this through the publication of lots of company safety information posters, videos and newsletters. One Vizla seafarer interpreted this as “(…) safety is around us!”. However, within Vizla, the emphasis was very much on behavioural safety. This constitutes a rather inexpensive method of being seen to be committed to safety and to raising safety standards. What is more, there is the inherent potential for the company to distance itself from the costs of injuries to staff. Thus, the company was perceived by seafarers to be committed to safety, but on the other hand, to avoid costs in terms of increasing crewing levels to mitigate fatigue. According to the study, seafarers saw the company to be cost-sensitive and having the need to make profit. Following their interpretation, there were limits to the prioritisation of safety and that ultimately cost considerations were the decisive point. Altogether, among seafarers as well as managers, there was the perception that the company’s aim was the strive for profit and business success, and CSR would be practiced where this was in line with these objectives.

In the case of Eagle, a ship management company, the priority was to meet international standards for vessels. Eagle’s main client in the operation of its fleet was a large shipper, QPR, that mainly worked with companies transporting vehicles or containers from the USA to Europe. According to shore managers and seafarers, QPR’s clients were taking little interest in health and safety, but they were slightly concerned about the cleanliness of the ships in order for their cargo to be transported. However, seafarers and office personnel cited one of QPR’s clients, a Scandinavian one, to be more interested in the living conditions of seafarers. Apparently, there have been discussions with this client and QPR, but according to a seafarer, he could not tell if living conditions had changed on the ship or not. Apart from this example, it is reported that client relationships lacked influence on standards of security, health and environmental protection on board. Hence, there was little incentive for Eagle to demonstrate interest with CSR in the sense of going beyond existing regulatory requirements. Nevertheless, reputation in regard with regulatory compliance was essential to the corporate and it wanted to be perceived as a “safe operator” at the quality end of the market.

In the study’s last case, Swan, the management made clear that their priority lay in environmental protection rather than seafarers and their safety and health care. One senior manager pointed out that it is evident from their sustainability record, that environmental aspects are the prime movers, but in terms of safety and health, they would be more on what they would call a “compliance level”. Further, they explicitly went on describing on how the company also wanted to achieve regulatory compliance in terms of seafarer’s health and safety, but at the same time made clear that environmental issues were the priority. The link of presenting publicly “green” credentials to the perception of what customers of their sector wanted made Swan going after environmental CSR. However, they felt more pressured from the tanker companies than from the container sector in terms of safety and health care of seafarers. Indicators show that seafarers were apparently aware that environmental policies outweigh their priorities. In one illustrative example, a seafarer commented “thank God to the MLC, before we were working like dogs”. Another seafarer told about how they complained about uncomfortable mattresses and how these were not replaced despite their complaints to the company. It is worth noting that the MLC contains a provision relating to the need for comfortable mattresses as “guidance”, but not among their mandatory provisions. These examples were given by seafarers to depict management priorities and to what extent their safety and health was less important than other factors, such as environment and profits. Summarising these cases, it can be said that the desire of the companies of the three case studies to exceed regulatory minimum standards did not apply to health and safety. On the other side, in the area of environmental protection, companies aimed to exceed the mere regulatory standards. (Sampson, "Seabirds Matter More Than Us!", 2016)

Résumé on the Maritime Agenda

Reading through the Maritime Agenda, it becomes clear that India follows one main goal: economic growth. Moreover, India seems to be keen on competing with other states on the global level of maritime trade. Therefore, the document is self-explanatory on its goals. In researching and analysing the Maritime Agenda, the main objective was to filter its commitment towards seafarer’s rights. The outcome shows that the policy paper itself does not stipulate policies in terms of seafarer’s rights. Nevertheless, it refers to the implementation of the MLC, which India in the following ratified in 2015. As has been mentioned earlier, while being part of the MLC, India has to abide by a vast set of rules. Nevertheless, it is striking that the main focus of the document lies on the economic aspects, rather than on human rights. In terms of CSR, the Maritime Agenda seems to follow the worldwide trends. It mentions CSR as a favourable invention for social sectors, like employment and quality of life. At the same time, however, the document admits that, so far, the concept of CSR has failed to take deep root in India. The paper goes on stating that much needs to be done to secure changes in its attitude towards CSR and to yield awareness on the corporate in their social responsibilities. Altogether, this leads to the question on what a document like the Maritime Agenda means for our world.

The Maritime Agenda and its relevance in describing international affairs

The Indian Maritime Agenda touches a variety of topics that are of high importance these days. First of all, the document relates to adjusting logistics in the maritime sector in order to enhance economic growth. Nowadays, maritime health is getting more and more crucial, and therefore it would also be relevant to examine India’s approach towards ecologic and sustainable developments. Moreover, it is clear that India strives ultimately towards economic success, forgetting to making efforts towards the people involved. As already pointed out in the introduction, without the workers at sea, global trade would be unimaginable. At the same time, invisibility plays a significant role: the value of seafarers is one that is significantly underestimated. The Maritime Agenda is in line with this assumption, showing this exemplary in its lack in mentioning the importance of their workers enabling the growth and giving explicit policy recommendations. The seafarer’s role is furthermore of high interest when considering the phenomenon of migration. People involved need to show a high level of flexibility in order to withstand the pressure that comes with this busy field of work. Some authors stated that seafarers would not migrate, but rather circulate, due to their quick shifts between ports, the high seas, and finally jurisdictions. As people are dependent to their salaries and sending remittances to their families back to their home countries, the aspect of a double bind is ubiquitous, as the need of survival and feeding your people has to outweigh the disadvantages of the working conditions. Moreover, people then need to spend long time far away from their families, and are therefore even more vulnerable and dependent on adequate care and treatment on board. Typically, the workers stem from countries such as the Philippines, Ukraine, China, Bangladesh, and Pakistan, which are usually considered countries with a high percentage of expat workers. Next to homesickness and loneliness, piracy and strenuous weather conditions are among the many difficulties seafarers have to deal with. By all means, the profession of the seafarer is a tough one and should therefore gain more attention and protection worldwide.

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