When International Transport Workers’ Federation (ITF) inspector Darren Proctor visited the Panama-flagged Tahsin in Gloucestershire, UK, in July 2017, he found evidence of the Turkish, Georgian and Indian crew drinking seawater as there was no potable water on the ship for over 10 days, out-of-date food, and non-operational galley equipment.
None of the crew had been paid for three months, but the Indians had not received any wages since joining the vessel in 2016, and even had to pay to get their jobs. One of the crew contracts inspected by Proctor was for US$250 per month, well below the US$614 minimum wage set by the International Labour Organisation’s (ILO) Joint Maritime Commission.
The crew of the Tahsin were abandoned.
Sadly, cases of seafarer abandonment are all too common. Abandonment happens for several reasons, but it is often an economic decision taken by a ship owner in financial trouble. Under international law, a seafarer is deemed to have been abandoned if the ship owner fails to cover the cost of their repatriation; or has left them without the necessary maintenance and support; or has otherwise unilaterally severed ties with them, including by failing to pay their wages for a period of at least two months.
To put things into context, around 90 per cent of world trade is carried by sea. According to the United Nations Conference on Trade and Development, the operation of merchant ships contributes about US$380 billion in freight rates within the global economy, equivalent to about 5 per cent of total world trade.
There are over 50,000 cargo vessels trading internationally with an estimated seafaring workforce of 1,600,000. The major labour supplying countries include the Philippines, China, Indonesia, Russia and Ukraine.
The shipping industry is relatively unique in its use of flags of convenience (FOC). An FOC ship is one that flies the flag of a country other than the country of ownership. By flagging out, ship owners can take advantage of minimal regulation, cheap registration fees, low or no taxes, and the freedom to employ from the global labour pool. This system persists despite the fact that the United Nations Convention on the Law of the Sea requires a genuine link between the real owner of a vessel and the flag the vessel flies.
The FOC system is a contributor to the phenomenon of crew abandonment.
While the problem is not rampant in the industry, it is clear that seafarer abandonment should not be happening at all. Unfortunately accurate statistics on abandonment are hard to come by. While the ILO database on abandonment lists 80 crew abandonment cases dating back to 2004, with a further 140 cases recorded as resolved, it is evident that the database does not give a true picture as it relies heavily on third party reporting.
Maritime Labour Convention
Earlier this year amendments to the Maritime Labour Convention (MLC) came into force. Ship owners are now required to have a financial security system in place that must be sufficient to pay a seafarer’s outstanding wages and the necessary maintenance and support, including food and drinking water, limited to four months.
The financial security must also cover the costs of a seafarer’s repatriation in the event of abandonment. Crucially, this system must also provide the seafarer or their representative with direct access, sufficient coverage and expedited financial assistance to pay for their wages and entitlements.
While the ITF is carefully monitoring the implementation of these very important new provisions to ensure that seafarer’s have access to prompt redress, it is important to recall that seafarers’ rights under the MLC are not intended to be exclusive or to prejudice any other rights, claims or remedies that may be available to them.
For example, abandoned seafarers also have a maritime lien, which is enforced by the arrest of the ship on which they worked (or sister ships in certain jurisdictions). Significantly, on the facts of the Tahsin it would appear that the crew members were subject to forced labour and are, therefore, entitled to an effective and appropriate remedy.
Under ILO Convention 29, forced labour is defined as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. “Menace of penalty,” for instance, not only covers penal sanctions, but other forms of coercion, such as those endured by the crew of the Tahsin, including economic penalties linked to debts incurred to cover illegal recruitment fees (in itself a form of debt bondage).
Further, the systematic and deliberate withholding of wages of seafarers working on the high seas thousands of miles from home effectively amounts to a form of compulsion requiring workers to remain in abusive working and living conditions.
‘Voluntary offer’ generally refers to the freely given and informed consent of workers to enter into an employment relationship and their freedom to leave that relationship. Even though the crew of the Tahsin would have agreed at the outset to work on board the vessel, their initial consent is irrelevant when deception and fraud have been used to obtain it.
The worker’s right to free choice of employment is absolute, that is, a restriction on leaving the employment, even when the acceptance was voluntary, can be considered forced labour. Further, if the owner of the Tahsin hired the seafarers with the intention of abandoning them, this could also amount to human trafficking for forced labour purposes.
The UK’s Modern Slavery Act
Classifying seafarer abandonment as modern slavery, forced labour or human trafficking can take on an additional dimension in jurisdictions such as the United Kingdom where the criminal law can be used to hold those responsible for forced labour at sea accountable. Indeed, the use of the criminal law in these cases can act as a strong deterrent against rogue ship owners.
New powers under the UK’s Modern Slavery Act (MSA) allow law enforcement agencies to board and search vessels, seize evidence and arrest offenders, where it is suspected that modern slavery is taking place. The definition of forced labour under the MSA is to be construed in accordance with Article 4 of the European Convention on Human Rights, which, in turn, borrows heavily from Convention 29.
Offenders arrested at sea for modern slavery offences can face up to life imprisonment for their crimes under the MSA.
Under the MSA, criminal courts are also required to consider making slavery and trafficking reparation orders so that victims can be compensated for any harm resulting from an offence under the Act. Crucially, the MSA makes provision for the victims to have their legal costs paid from legal aid.
It is evident that seafarer abandonment can amount to forced labour under existing legal definitions at the international, regional and national levels. With countries like Australia developing a Modern Slavery Act, it can only be hoped that more countries tackle the issue of forced labour at sea. Governments are also increasingly legislating in the field of supply chain due diligence and transparency to ensure business does more to eradicate modern slavery.
Heightened legal accountability means that leads firms and buyers can no longer afford to have a blindspot in their transport and logistics supply chains.
Freedom from forced labour is pivotal for the attainment of social justice. There must be zero tolerance of modern slavery in the shipping industry. Merchant mariners who transport 90 per cent of all goods and drive world trade deserve better. The ITF for its part will ensure that seafarers know their legal rights and remedies available to them.
Unscrupulous ship owners have no place to hide.
Ruwan Subasinghe is Legal Advisor to the International Transport Workers’ Federation (ITF).