Meeting of States Parties to the United Nations Convention on the Law of the Sea
United Nations, New York
My name is Douglas Stevenson, and I direct the Seamen’s Church Institute’s Center for Seafarers’ Rights. The Seamen's Church Institute, founded in 1834 to improve the treatment of merchant seafarers in the Port of New York, is the largest, most comprehensive not-for-profit mariners agency in North America. Headquartered in Manhattan, the Institute every year serves more than 150,000 mariners from 75 different countries through its programs of hospitality, professional training and worldwide legal advocacy.
I know that you have had a very busy agenda this week discussing a variety of important issues. I am grateful to have the opportunity to share with you some of our concerns related to the Law of the Sea.
I am here to talk about the Law of the Sea from a human perspective. We believe that the protections accorded to the men and women who toil on the workplace of the sea are the most important aspects of the United Nations Law of the Sea Convention and are the provisions that should be given the most attention. Frankly, without men and women to operate vessels, airplanes and other industrial structures on, over and under the seas, the UNCLOS provisions governing uses of the oceans and its resources have little meaning.
The most fundamental function of the UNCLOS is to provide order and predictability for people in the marine world. This, in turn, will enhance commerce and will also provide incentives to attract and retain skilled men and women to maritime careers by protecting them while they are working at sea.
Today’s world economy depends upon maritime commerce and resources. But the seas are a dangerous, unruly and unpredictable environment. The international community looks to the United Nations to help create order out of chaos and to encourage the rule of law on the seas through the Law of the Sea Convention and through the meetings of the States Parties.
The Law of the Sea Convention reflects customary maritime law and practice that developed out of thousands of years of commerce and experience. Maritime law evolved as a special body of law because the land-based rules were inadequate to accommodate the special circumstances of the seas. Some of the most notable features of the earliest maritime laws and practices were the rights and protections accorded to mariners. These ancient laws weren’t created as an expression of the maritime industry’s conscience. Rather, the early maritime enterprises and early courts recognized that maritime commerce depended upon attracting and retaining good crews. Because of the uncertainty of earning wages, substantial physical risks, harsh discipline onboard ships and long voyages, incentives were necessary to induce seafarers to go to sea and to retain them in maritime careers.
The Law of the Sea Convention creates a legal framework that addresses a variety of interests. However, the most important objective of this regime, and any other regime, is to protect the weak and the vulnerable. I don’t want to suggest that seafarers are weak. They are tough, highly skilled professionals, but they are very vulnerable. We see their vulnerability through the cases that we, and others, deal with on a daily basis.
The last time I spoke to this meeting two years ago, I raised the issue of piracy. I am pleased that the issue has been included in last week’s informal consultations and that it is addressed in the United Nations General Assembly. I will not discuss piracy in depth now because the issue has already been discussed the meeting last week. I do wish to point out, however, that mariners are still threatened by pirates in many parts of the world today and that international efforts are urgently required to eradicate the scourge of piracy.
Countries that are victimized by piracy need to take tough measures to protect their ships and crews - even for acts that occur in the territory of other countries. This will involve taking a new look at the definition of piracy. The international community must work together to find new ways to protect vulnerable crewmembers from the growing threat of pirate attacks. In this regard, I draw the meeting’s attention to the efforts of the Comite Maritime Internationale to develop a model law to suppress piracy.
We are also concerned about several other issues that relate to the Law of the Sea Convention, three of which I will bring to the meetings attention today: abandoning mariners, detaining ships’ crews and eroding traditional seafarers’ rights.
Abandoned ships continue to be a problem worldwide. My office is regularly called upon to help seafarers who have been abandoned by their insolvent owners leaving their crews without pay, food, water, fuel or the means to go home - and the cases that we learn about are just the tip of the iceberg. Although Maritime law theoretically provides remedies for seafarers caught in such circumstances, the remedies are often beyond their reach. In many cases, crews cannot afford to pay litigation costs, legal fees or to support themselves during protracted legal procedures that would be required to avail themselves of the law’s protections.
Whenever a ship is abandoned, it is devastating to the crew and, I might add, shameful for the entire maritime industry. Just last month, my office helped a crew of a ship that had been abandoned in Brunswick, Georgia (USA). (You may have seen an article about this case in last Sunday’s New York Times Magazine.) The men had to rely on the charity of the local community, especially that of the Brunswick International Seafarers’ Center for their basic human needs of food, water, shelter and medical care. My office found pro-bono counsel to represent them to collect their unpaid wages, and we paid for their repatriation expenses. Yesterday, the court in Georgia auctioned their ship and the proceeds of the sale will be sufficient to pay their wages. This crew was more fortunate than many other abandoned crews that we are trying to help. Other crews are abandoned in ports where there is scant community support to sustain them or where the legal system cannot provide effective relief.
Another case that we worked on last year illustrated elements of abandonment and also the problems of unfairly detaining ships’ crews and subjecting them to strict criminal liability in response to pollution incidents. In their zeal to protect fragile marine environments, some states have resorted to imposing strict criminal liability on ships’ crews for pollution incidents – even when there is no criminal intent or culpability involved. For example, last June, a vessel sank with its cargo of timber off the coast of a member state. Fortunately, the entire crew was safely rescued and taken to the coastal state’s capital. The coastal state determined that the wreck was an environmental and navigational hazard and demanded salvage costs from the ship’s owner. The coastal state pressured the owner to pay the costs by threatening the crew with criminal prosecution and by holding their passports, thereby preventing them from leaving the country. Instead of paying its obligation to the Coastal State, the shipowner abandoned the crew without paying their wages, or providing them with food or lodging. The crew was effectively held hostage with no means of support. Finally, after five months of detention, and international pressure, the Coastal State released the crew.
We are also concerned about trends that erode traditional seafarers’ rights. Examples of this erosion are the attempts to dilute seafarers’ traditional rights to medical care. One of the oldest and most enduring rights accorded to seafarers is their right to free medical care. This right, called maintenance and cure, is so firmly established in maritime law, that it is an assumed part of every mariner’s employment contract. It is a right so fundamental that no individual mariner can give it away by contract.
Maintenance and cure is a basic and simple right. For centuries, seafarers have understood that if they become sick or are injured, their ship would pay for their medical care and living expenses until they were cured or reached maximum cure. In addition, they would receive their wages during their recuperation until maximum cure or until the end of their contract – whichever occurred first.
Unlike workers compensation for land-based workers, there is no requirement in maintenance and cure for the sickness or injury to be work related or job connected. Even injuries sustained by a seafarer on shore leave are covered by maintenance and cure. All that is required is that the illness or injury occur during the term of employment. The only two exceptions to maintenance and cure are willful misconduct and intentionally concealing the medical condition from the employer at the time of employment.
Regrettably, some parts of the maritime world have forgotten that protecting mariners’ rights to maintenance and cure is in the industry’s best interests and are trying to erode these rights. For example:
- We recently learned from a musician that a cruise line was requiring all musicians to prove that they have private health insurance as a condition of employment. The cruise line is trying to avoid its responsibility to provide maintenance and cure, even though the law is very clear that this right extends to musicians and all other crew members who “contribute to the function of the vessel or to the accomplishment of its mission.”
- A recent opinion of a flag state authority determined that under its law, entertainers (and possibly all “hotel staff”) on board passenger vessels are not considered seamen and are not entitled to statutory maintenance and cure protections.
- Another flag state reduced maintenance and cure rights for seafarers working on passenger vessels. Recent changes to its legislation limits the time that wages are paid to recuperating crewmembers on international passenger vessels to thirty days. Seafarers on all other kinds of ships are entitled to be paid up to twelve months wages during their recuperation.
- A labor supplying country last year approved a new standard contract for all its seafarers working on ocean-going vessels. This new contract, among other changes, deprives seafarers of their historic right to maintenance and cure by limiting medical care benefits only to conditions that were directly caused by employment. The administration effectively wiped out maintenance and cure for all of its seafarers and replaced it with an inferior workers’ compensation scheme.
In a case that demonstrated a callous disregard for maritime law obligations and an even more egregious disregard for human life, a mariner was deprived of basic medical care and was allowed to die under circumstances that appeared to be motivated by financial grounds. In January of last year, while on a voyage from Africa to South America, an Eastern European mariner died of malaria in mid-ocean. The autopsy report attributed the death to lack of medical care. The shipowner refused to pay contractual death benefits to the widow. He claimed that the death was not caused by a “marine risk”. Under the flag state’s law, the shipowner was obligated to provide medical care irrespective of the illness’ job connection. Death benefits, on the other hand, required that the death be job-connected. This case created the appearance that because death benefits would be less expensive than providing maintenance and cure, the man was allowed to die without medical care. My requests to the vessel’s flag state and to the shipowner’s state of citizenship for them to conduct criminal investigations have gone unanswered. Mercifully, the shipowner’s former insurance company, who had not been paid its premiums, paid the widow the contractual survivor’s benefits.
These cases cry out to the community of nations here assembled that we must return to our roots in maritime law and refocus our attention on protecting the men and women whose workplace is the sea. We need a practical, effective and uniform regime that will protect them and all of us who so depend on their labors.
All who work at sea in the service of a ship face particular perils, endure substantial physical hardships, put up with strict discipline, and suffer lonesome separations. They have special lives and work and they need special laws to protect them. Reducing or eliminating traditional seafarers’ rights, such as maintenance and cure, can be disastrous to both seafarers and the maritime commerce.
When mariners’ health, safety or welfare is in jeopardy, we look to the United Nations Convention on the Law of the Sea to protect them. The UNCLOS lays down a comprehensive regime of law and order in the world’s oceans and seas. It is a comprehensive international regime that not only provides benefits to individual states and the world economy, but it also imposes obligations on states. For the regime to be effective, all states that use the oceans must adopt its rules. States that are not parties to the Convention should be encouraged to ratify and implement it. In situations where UNCLOS does not address a particular need, States Parties should make use of the framework provided in the Convention to develop specific areas of the law of the sea. In situations where changing the UNCLOS would be inappropriate, states should consider developing consistent model national legislation. When one flag state does not honor its obligations under UNCLOS, all States Parties are affected.
In such situations, and especially those where persons’ rights are involved, the international community of nations, as well as individual nations, must step in to protect the seas’ most valuable resource: the human beings who live and work on ships.