Draft Guidelines on abandonment, personal injury and death of seafarers developed by IMO/ILO Working Group
Ad Hoc Expert Working Group on Liability and Compensation
In a move aimed at improving the working conditions and ensuring the basic human rights of seafarers, States are to be formally urged to require shipowners to provide adequate financial security to cover claims from seafarers in cases of abandonment, personal injury and death. Two new draft resolutions and associated Guidelines were finalised by a joint International Maritime Organization (IMO) and International Labour Organization (ILO) Working Group on Friday 4 May, marking the successful completion of an initiative that began following submissions to the IMO Legal Committee and the ILO Governing Body during 1998 and 1999.
The resolutions and Guidelines address the fact that, although there are international instruments covering certain aspects of the problems relating to abandonment, death and personal injury of seafarers, some are not widely implemented and none deals with these problems comprehensively.
As a result, seafarers who have been abandoned in foreign ports often suffer severe hardships, including lack of food, medical care, and other necessities of life, as well as delays in their repatriation, while the claims to compensation of seafarers or their families in respect of injury or death are sometimes subject to delay. There is also a perception that, in some cases, there has been pressure to reduce the amount of claims in return for an expedited settlement.
Financial security in cases of abandonment of seafarers
The draft resolution on provision of financial security in case of abandonment of seafarers
states that abandonment of seafarers is a serious problem involving a human and social dimension and recognises that, given the global nature of the shipping industry, seafarers need special protection.
The concern is that, if shipowners do not have adequate financial security, seafarers may not receive due remuneration or be promptly repatriated in cases of abandonment. The draft resolution affirms that provision for repatriation, maintenance while abandoned and payment of remuneration should form part of the seafarer's contractual and/or statutory rights and are not affected by the failure or inability of the shipowner to perform its obligations.
It also recognizes that, in cases where the shipowner fails to perform, flag States and, in some cases, the State of nationality of the seafarer or the port State may be called upon to intervene.
The draft Guidelines say that shipowners should provide a financial security system that provides for the expenses of the repatriation to be met without cost to the seafarer, and for the maintenance of the seafarers from the time of abandonment to the time of arrival at the place of repatriation. The payment of all outstanding remuneration and contractual entitlements should be covered, as well as the payment of other expenses incurred by the seafarer during the period of abandonment arising from the abandonment.
They add that, should the shipowner fail to fulfil its responsibilities, the financial security system should provide for repatriation of the seafarer by appropriate and expeditious means, normally by air, and including provision for food and accommodation of the seafarer from leaving the ship until arrival at the place of repatriation, medical care, passage and transport of personal effects and any other reasonable charges.
The financial security system may take the form of a social security scheme, insurance, a national fund, or other forms of financial security. It should provide a right of direct access by the seafarer to the financial security, and apply regardless of the nationality of the seafarer.
The Guidelines also state that shipowners should ensure that their seagoing ships engaged on international voyages have on board a certificate attesting to the existence of a financial security system in the event of abandonment of seafarers, which should be posted in a prominent position in the seafarers’ accommodation. Shipowners should also display on board contact details of the persons or entity responsible for handling claims covered by the Guidelines.
Personal injury to or death of seafarers
The draft resolution on claims for personal injury to or death of seafarers notes a need to recommend minimum international standards for the responsibilities of shipowners in respect of contractual claims in such cases. The draft resolution expresses the concern that, if shipowners do not have effective insurance cover, or other form of financial security, seafarers are unlikely to obtain full and prompt compensation. It states that putting in place effective arrangements for the payment of compensation is part of the shipowners’ responsibilities to provide safe and decent working conditions.
The draft Guidelines give definitions for contractual claims, effective insurance and so on, and set out shipowners' responsibilities to arrange for effective insurance cover with the aim of ensuring that seafarers receive prompt and full payment of their claims. They also recommend ships should carry a certificate issued by the insurer attesting to coverage for personal injury and death.
The Guidelines include a model receipt and release form which would be signed by the seafarer or heir or dependent and which would acknowledge receipt of a sum in satisfaction of the employer's obligation to pay contractual compensation for personal injury and/or death. But, importantly, the form would state that payment is to be made without admission of liability on the part of the shipowner and without prejudice to the seafarer’s right to pursue any claim at law in respect of negligence, tort or any other legal redress available and arising out of the incident.
The resolutions and their associated Guidelines (“Guidelines on Shipowners’ Responsibilities in Respect of Contractual Claims for Personal Injury to or Death of Seafarers” and “Guidelines on Provision of Financial Security in case of Abandonment of Seafarers”) will now be presented to the IMO Legal Committee in October this year for approval and to the 22nd IMO Assembly in November for adoption. They will also be presented to the ILO Governing Body in November 2001 for adoption by that body. Once adopted, they will come into force on 1 January 2002.
The ILO’s overriding goal is to promote opportunities for all men and women to obtain decent and productive work, in conditions of freedom, equity, security and human dignity. A number of ILO instruments contain clauses relating to conditions of work on board ships and the rights and duties of shipping employers and employees.
IMO is the United Nations agency concerned with safety of shipping and protection of the marine environment and is concerned with ensuring ships comply with international standards, including financial security.
Web site: www.imo.org