News and Views

Shipping 'Asleep' as Labour Rules Loom

Media Coverage

Jonathan K. Waldron, partner at Blank Rome, was recently quoted in the March 22 Lloyd’s List article, “Shipping 'Asleep' as Labour Rules Loom," by Rajesh Joshi.  www.lloydslist.com.

Full article:

The US has not ratified MLC 2006.

USCG urges voluntary self-compliance but experts fear the worst.

Blank Rome partner Jonathan Waldron says the industry, and US-flag owners in particular, are “fast asleep” to a looming nightmare.

“My sense is that no-one is paying any attention. But they better wake up, and quickly, because the problem they might face is very real,” he said.

Mr. Waldron’s concern centres on the Maritime Labour Convention 2006, sponsored by the International Maritime Organization, which comes into effect on August 20.

The US has not ratified MLC 2006, and some experts wonder if it ever will.

Therein lies the rub.

Despite the US having one of the world’s most robust seafarer protection regimes, and strong maritime unions to boot, US-flag ships risk being inspected from bow to stern in foreign harbours — even detained, in worst-case scenarios — because Washington has not ratified the convention.

US-flag ships and US-citizen crews are aware of problems caused by Washington’s non-ratification of the International Labour Organisation’s treaty on seafarers’ identification documents, ILO 185.

US crews have sometimes run into trouble in foreign ports due to a lack of proper visas.

Rightly or wrongly, some see this as tit-for-tat for the more common experience of foreign seafarers finding themselves with similar visa problems in US ports.

Chamber of Shipping of America president Joseph Cox believes the scenario might repeat itself after August.

“Problems associated with MLC inspections abroad are a great concern of mine,” Mr. Cox said.

“The chamber and I are actively advising all our members — not just US-flag ones — to be prepared for the worst.”

MLC 2006 consolidates most existing International Labour Organisation maritime conventions into one document. 

It sets minimum standards for conditions of employment, hours of work and rest, accommodation, recreation, food and catering, health protection, medical care, welfare and social security protection.

Some 35 flag states, covering more than 70% of the world fleet, have ratified the convention to date. They include major flags such as the Marshall Islands and Panama, and maritime nations Australia, Canada, Denmark, Greece, Norway, Singapore and Spain.

MLC 2006 member nations issue maritime labour certificates to vessels under their flag, which are prima facie evidence of the vessels’ compliance with the convention. 

What makes these certificates crucial is that Port State Control inspectors in foreign ports normally do not look beyond them for evidence of compliance.

Ships from non-member nations will not have this convenience. 

Recognising the possibility of US ships being harassed or detained overseas, the US Coast Guard recently issued a draft Navigation and Vessel Inspection Circular, providing guidance on how US-flag vessels can prepare for the post-MLC 2006 era.

The USCG intends to implement a voluntary inspection programme for such vessels before the enactment date, so US-flag vessels may document compliance. 

To this end, the USCG has authorised a select set of classification societies to conduct compliance inspections on ships and to issue Statements of Voluntary Compliance (SOVC-MLC) on behalf of the USCG.

Ships are encouraged to post these SOVCs “in a conspicuous place on board”, easily visible to the crew and to inspectors, to serve as de facto MLC certificates in foreign ports.

However, this has sparked an important difference of opinion.

Maritime regulatory consultant Dennis Bryant and the director of the Centre for Seafarers’ Rights at the Seamen’s Church Institute of New York and New Jersey Douglas Stevenson both believe Port State Control inspectors are under-resourced in most main foreign harbours.

Draconian MLC enforcement is unlikely, they argue.

“I think most foreign PSC regimes would not differentiate between a US-flag ship with an SOVC and a ship with a certificate from a signatory nation,” said Mr.. Stevenson.

“They would be likelier to target ships that have no certificate at all. However, this makes it even more important for US-flag owners to get the SOVCs as recommended.”

Mr.. Bryant said the first impression created by the ship itself will play a role.

“I believe the SOVC will get the job done in a vast majority of the cases,” Mr.. Bryant said. 

“However, whether or not to launch an exhaustive inspection is entirely at the PSC inspector’s discretion. So it might simply come down to how the ship looks at first glance — whether it looks ship-shape, or whether it is a dog.”

Mr.. Cox, meanwhile, is not so sure about US-flag ships getting away with minimal trouble, pointing to the MLC’s “no more favourable treatment clause” as a reason for caution.

This clause requires ratifying governments to “impose MLC requirements even on vessels from a non-ratifying government when calling on their ports”.

“My concern is that this clause may make foreign PSC inspectors feel almost duty-bound to inspect US-flag ships vigorously, not because of politics but because otherwise they would simply not be doing their job,” said Mr. Cox.

He sees further reason to worry: the fact that foreign PSC inspections can be triggered by a complaint from any individual on shore. This means US-flag ships must be extra careful, he said.

Regardless of such niceties, experts agreed with Mr.. Waldron that the post-MLC world is a “big unknown”.

“No matter what flag their ship flies, no owner today can guess precisely what kind of enforcement to expect,” said Mr. Waldron.

“This is why it surprises me even more that so few people are paying attention.”

Reprinted with permission from Lloyd's List.