An international proposal to ensure the fair treatment of seafarers

Abstract

The fair treatment of seafarers in the event of a maritime accident remains an urgent priority for the international maritime industry, the International Maritime Organization (IMO) and the International Labour Organization (ILO). Following a series of notorious criminal cases in different jurisdictions over two decades, the unfair treatment of seafarers came to the fore, the cases drawing sharp criticism from commentators and especially the international maritime industry. There were great expectations that the resulting guidelines on fair treatment of seafarers in the event of a maritime accident (the Guidelines) would ensure the fair treatment of seafarers. But as this article demonstrates, the expectations have not been fulfilled, and the rights in the Guidelines are often theoretical and illusory, rather than practical and enforceable.

This article breaks new ground in four major respects. First, in 2012, a survey of 3480 seafarers, constructed by the author, found that 81 per cent of seafarers who had faced criminal charges considered that they were treated unfairly. Secondly, the article reports the responses of member states of the IMO to another survey designed by the author which shows that state practice on the implementation of the Guidelines is widely divergent. Thirdly, guidance for member states on the implementation of the Guidelines is proposed for the first time, heretically eschewing an orthodox model law and advocating instead discretionary implementation by reference to the Guidelines. Possible counter-contentions to the guidance are raised and rejected in detail. Fourthly, as a judgment handed down by the author indicates, the Guidelines can be applied by courts without implementing legislation; but this approach is not advocated. Instead, the guidance aims to facilitate the most convenient and expeditious implementation of the Guidelines, ensuring their widespread promulgation and implementation and reversing the incidence of unfair treatment of 1.5 million seafarers around the world.

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