58th UIA CONGRESS
Florence / Italy
October 29 – November 2, 2014
LABOUR LAW/TRANSPORT
LAW/ENVIRONMENTAL
LAW/CRIMINAL LAW COMMISSIONS
Thursday, October 30, 2014
THE GROUNDING OF THE COSTA
CONCORDIA- SOME LABOUR LAW
ISSUES RELATING TO THE
MASTERS (AND CREW) OF SHIPS
Geoffrey Richards (Farrer & Co LLP),
66 Lincoln's Inn Fields, London WC2A 3LH
geoffrey.richards@farrer.co.uk
© UIA 2014
Points covered:
1.
Which employment laws (contractual and/or statutory/mandatory) are applicable to
•
the captain/master;
•
senior officers; and
•
other maritime workers?
•
What is the decision-making power of a ship's captain and what usually is his
reporting line?
•
Who bears the liability for damages caused by the captain’s negligence or worse,
with regard to third parties and as between employer and employee?
•
Suspension from work and disciplinary procedures (especially where criminal or
administrative proceedings have been instituted or are pending;
•
Termination and/or other sanctions.
2.
This short (and somewhat selective) paper assumes that the ship is registered in
the UK and, therefore, comments from an English law perspective. It also assumes
that English law will be the law of the contracts of both the master and the crew,
either because there is an express choice of law clause to that effect or because of
the likely impact of Rome I (see the Contracts (Applicable Law) Act 1990 (as
amended)).
The Master
3.
The master (i.e. the person in command of a ship) is normally engaged by the
owner under an individual contract of employment. There is no standard contract,
and the terms will vary. Contrast the situations where:(a)
a master is, say, one of two captains employed by a large cruise
line to be in charge of a particular ship on a rotating basis, and
(b)
the master is in charge of a particular vessel for a particular voyage
or (in the case of the small yacht) a summer or winter season.
Put another way, a master may be employed indefinitely (subject to a period of
notice) or for a specific project or period. The employer will normally be the owner
or operator of the ship in question.
4.
Under the contract the master's express obligations may include:
•
steering and operating the ship;
•
directing and co-ordinating the crew and other workers;
•
maintaining proper records;
•
arranging for the ship to be fuelled, stocked and/or repaired
•
maintenance of equipment and systems;
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•
overall responsibility to the owner for the safety and management of the
ship, the crew and the passengers;
•
compliance with relevant laws;
•
display of appropriate flags.
There is a compulsory term that the owner, the master and every agent charged
with the loading of the ship, preparing the ship for sea or sending the ship to sea
must use all reasonable means to ensure the seaworthiness of the ship for the
voyage when that voyage begins, and to keep the ship in seaworthy condition for
the rest of the voyage.
5.
Historically the master was not so much a seafarer as a commercial agent of the
owner, and might be a part owner of the ship. Over the course of the last 100 years
the position of masters has evolved, so that they may now enjoy at least some of
the rights of other seafarers and employees in general.
6.
Nevertheless the master remains in a dual position; both an employee of the owner
and responsible for the enforcement of the laws of the flag state on the vessel.
7.
The employment terms of both the master and the crew will be influenced by the
Maritime Labour Convention 2006, which came into force generally on 20 August
2013 and in the UK on 7 August 2014. As was set out in John Cartner's chapter in
the book on the Convention:
"In reading the Convention, one should recall that the master has six generalized duties,
each interactive with the others. His duties are to enforce flag State law, to preserve the
vessel, to preserve the lives aboard, to preserve the cargo, to preserve the environment and
to prosecute the voyage efficiently, all the while as an employee at the will of the owner
responsible to his employer and the owner's commercial agent. His duties make the master
a fiduciary for the owner, the souls aboard and the contents. In some rare cases the master
can become a constructive bailee and a constructive trustee. In so doing, the master has,
inter alia, the responsibilities within those duties to inspect, maintain and repair, provision,
have aboard the requisite chandlery, record, report, operate, plan and manage."
The Crew
8.
All senior officers as well as the crew (ie most of those working on the ship) are
seamen, typically employed by the ship's owner or some associated company;
perhaps an offshore company for tax or employment reasons. Seamen are usually
employed via "crew agreements" which may or may not be the result of collective
bargaining. They will be employed under English law. Some people (eg
bodyguards, nannies and entertainment staff) will probably have separate
(employment or self-employed) contracts.
Statutory Employment Rights
9.
Regardless of the law governing the contract with master or crew, certain
mandatory rules may apply to protect employees and cannot be subject to
contracting out. These will include unfair dismissal and unlawful discrimination
claims. However, the ETs which hear such claims will only have jurisdiction where
the employee's connection with Great Britain is sufficiently strong. That is a
question of fact and degree. Certain statutory employment rights do not apply to
mariners but some will if the ship is British registered with a British home port, not
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all the work is done outside the UK and the individual is ordinarily resident in the
UK.
Reporting Line
10.
The master is in command of the ship and all its workers. He or she will have
authority and control of all the acts and purposes of the ship, and the employment
of seamen and others. The extent of the master's authority will vary according to
the circumstances of the place, including the place where he is and the accessibility
of the owners. It is the master's duty to obey his owner's instructions, and his
implied authority cannot extend to acts which are inconsistent with English law,
because obedience to the law is implied in his instructions. If a matter is within the
ordinary scope of a master's authority, the owners will be bound by his acts.
11.
To the extent that the master has himself become a seafarer under the 2006
Convention it might be suggested he now has two matters: the owner and the flag
state.
Liability
12.
The owner will always have overall liability as to the seaworthiness of the vessel by
the Merchant Shipping Act 1995 the owner is responsible for injury or loss of life
suffered by anyone on board the ship, in the absence of fault by the master.
13.
The master is personally responsible to the owner for any injury or loss to the ship
or cargo by reason of his negligence or misconduct, or for acting without authority.
In practice the insurance policies taken out by the owner will also (subject to their
terms) cover the liability of the master.
Discipline and Termination
14.
As already noted, the master will, as an employee, enjoy a number of statutory
rights, including the right not to be unfairly dismissed. A dismissal will be fair if:
(a)
there is a qualifying reason (eg misconduct, incompetence,
redundancy); and
(b)
the employer has acted reasonably in all the circumstances in
treating that reason as sufficient to dismiss the employee.
In practice the courts have always seen good procedure as a vital factor of a fair
dismissal. This means that alleged misconduct must be properly investigated and
that, before any decision is taken by the employer, there should be a hearing of any
charges against the employee at which the employee is given a proper opportunity
to state his case.
15.
There are obviously particular difficulties where the employee's misconduct may
amount to a criminal offence. In practice employees are frequently suspended
while a criminal investigation takes place and may be maintained in employment
(on normal pay) pending the outcome of the criminal case. However, the employer
need not necessarily await the outcome of any criminal prosecution before taking
fair and reasonable action. On the other hand the alleged offence may not justify
disciplinary action – for example, off duty conduct which has no bearing on
employment.
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16.
Where the employee is convicted of a criminal offence and sentenced to a term of
imprisonment, he will not be able to carry out his duties. In such circumstances the
employer may dismiss the employee for a reason connected with the criminal
offence, or may rely on the doctrine of frustration.
Geoffrey Richards
October 2014
Note: This paper was produced with the help of Kathryn Pickard of Farrer & Co. Any
mistakes are, of course, my own.
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