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THE MARITIME LABOUR CONVENTION AND PIRACY; THE FATE OF THE GHANAIAN SEAFARER.

Written by Jeffrey Botchway (LLM Maritime Law)

botchwayjeffrey@gmail.com

THE ISSUE

   The Maritime Labour Convention (hereafter MLC) which was adopted by the International Labour Organization (ILO) in 2006 contains several provisions that seek to address the needs of the seafarer. Based on its design, the Convention came into force 12 months after the minimum requirements set out for its entry were met on 20 August 2012 and is seen to constitute a major shift in maritime labour. It must however be noted that the MLC just like all other international Conventions only sets minimum standards and is to a large extent dependent on national implementation by States that are parties to it. It is not directly enforceable in domestic law, thus, it is by no means a compulsory legal system for ship-owners and seafarers whose States are not parties to it. They may however be bound by existing labour related Conventions to which they may be parties to.

Ghana is a party to the MLC, thus the need to assess Ghana’s domestic laws on the health and well being of workers and the extent to which Ghanaian seafarers who fall victim to piracy are protected.

What Ghana’s Law says about health and well being of workers (Labour Act, 2003)

   Subsequent to the findings of the MLC, it is not directly enforceable till implemented in the national laws of a party State. The main legal framework for Ghanaian labour conditions is the Ghana Labour Act 2003 (Act 651). It does not implement the MLC, neither does it explicitly provide for seafarers, however, the question is if it can be construed to apply to them. If so, the following issues on whether it is sufficient to deal with piracy and also consistent with the MLC standards will be considered.

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   With the exception of specified Security and Intelligence agencies, Act 651 is stipulated to cover and bind all workers and employers in Ghana through a contract of employment. This is the scope of application. Thus, Act 651 is argued to apply to all seafarers once they have been registered and are recognized as part of the Ghanaian labour force. This means the applicability of the Act 651 if so construed can be extended not only to the Ghanaian seafarer but foreign seafarers employed onboard Ghanaian registered ships. Any argument to oppose its applicability on foreign seafarers employed in Ghana will trickle down to the Ghanaian Constitution which will then stipulate as per paragraph 4 of Article 21 of the 1992 Ghanaian Constitution that any movement of any person within Ghana for the sake of public order should be bound by the national laws, thus under the jurisdiction of Ghanaian Courts.

   Foreign seafarers by the virtue of being in Ghana are not immune to Ghanaian laws, therefore, the provisions in some cases can be extended to them. Furthermore, the Act 651 which extends its applicability to employers is binding on them if they opt to employ foreign seafarers on Ghanaian ships. However, the applicability problems is linked to the travelling nature of ships. Once the ship sails outside the jurisdiction of the Ghanaian Labour Courts, there will be major difficulties with regards to the establishing of jurisdiction since the conditions for such circumstances is clearly not tackled by the Act. This will however not be the case of a Ghanaian registered ship.

   In considering the above legal issues, it is argued that the Labour Act 2003 will not be significant in this instance even if it can be construed to apply to seafarers. Thus, assessing its sufficiency to protect the seafarer in cases of piracy as well as ascertaining its consistency with the MLC is highly irrelevant.

Is there a remedy for seafarers onboard Ghanaian ships?

The problem underlined within the Ghana Labour Act 2003 was the issue of jurisdiction. Seafarers are to be given a special status which will cover for both physical and legal jurisdiction no matter the location of the ship at the time of the incidence without stifling internationally agreed standards. To satisfy this condition we will look at the Ghana Shipping Act 2003 (Act 645). Ghana ratified the MLC in 2013,  it is however not being implemented in Act 645. The issue will be to ascertain if it is restricted to seafarers on Ghanaian registered ships only. Does it extend to foreign seafarers and ships trading on Ghanaian waters? The question of its consistency with the MLC will be answered as well as its sufficiency to support seafarers during and after their captivity by pirates.

  To answer the first question, it will be essential to consider the Registrar of Ghanaian seafarers. Article 107 of the Shipping Act in highlighting the functions of the Registrar stipulated its engagement with persons employed onboard Ghanaian ships as well as Ghanaian seafarers serving on foreign ships. This shall be the basis for argument to show that the Act 645 does not concern itself with seafarers onboard a Ghanaian ship but extends to Ghanaian seafarers onboard foreign ships. The above article is also postulated to be applicable to foreigners serving on Ghanaian ships by exercising its rights as a flag State. On the issue of its application, it is argued that the Act will only extend to foreign seafarers and ships where they willingly enter into Ghanaian waters for purposes which may include trade.

  The legal capacity to interfere will however be limited to port State Control or where the passage is deemed to be prejudicial to the good order of the State. Also, the express provision in Part 4 that grants permission to the Ghanaian Authority in charge to interfere with employment agreements between the seafarer and owner where expedient shows the extent to which labour laws can be enforced. The intervention of the Registrar will not only apply to Ghanaian seafarers on board Ghanaian ships but will also extend to their employment onboard foreign ships.

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   It will also include foreign seafarers onboard Ghanaian ships. An employment agreement stipulating all advances and wages to be paid should be agreed and accepted by both parties, as well as the conditions under which the employment can be terminated. Based on this, it is argued that where both parties consent and explicitly agree to keep the contract of employment intact where the seafarer is held captive by pirates, this will give the seafarer a go against the owner where his employment is terminated as a result of captivity.

  Exceptions should be explicitly provided with no hidden clauses. Where the owner wants to terminate all employment engagements in the case of piratical attacks it should be clear. The seafarer is entitled to sue under the provisions for his wages where the owner goes contrary to the stipulated terms of the employment contract. Moreover, the Act 645 stipulates that all agreed terms should not be contrary to the laws of Ghana, where it is so the Authority maintains the power to apply the Act even on foreign ships while they are in Ghanaian ports. This is argued to eliminate the principles of freedom of contract and prohibit shipowners from taking undue advantage of employed seafarers.

  Pursuant to Section 147 of Act 645, powers are conferred on the Courts to rescind the contracts to what it considers just after considering all grievances related to the contract. This is the legal position. Based on these considerations, it is argued that the Act, is more sufficient and has much capability to handle piratical situations than the MLC, thus will provide adequate support for seafarers registered with the Ghanaian Registrar.

   Notwithstanding these views, the Ghanaian legal position with regards to liens are however slightly different. Article 66 of the Shipping Act though in consistence with the MLC with regards to wages further includes any loss of life or personal injury claims directly related to the ship’s operation be it on land or on water. These claims are ranked pari passu and will be made extinct after a one year period unless in exceptional cases where the vessel is forcibly sold as a result of a seizure or arrest prior to the end of the given period.

   The Act 645 is also seen to favour the seafarer as it stipulates through its Section 160 that, where a seafarer belonging to a Ghanaian ship gets injured or becomes ill while honouring his duties, the shipowner will defray the medical and maintenance cost until he recovers or dies, without deductions from wages where the injury or illness is not as a result of the seafarer’s own willful act or that of the master.

   This is in conformance to the medical requirements slated in Standard A4.1 of the MLC. Although it is not clear if this section will apply in cases of post-traumatic stress disorder suffered as a result of  piratical attacks, they can however be argued to be applicable if this can be successfully linked to show it arose as a result of the seafarer serving under the ship as per his employment contract.

  Shipowners will be then held to be in breach for failure to comply with the above provisions. There is also the issue of repatriation, unlike Regulation 2.5 of the MLC which stipulates the right of a seafarer to be repatriated without cost, Act 645 through its Section 183 introduces exceptions which will show that repatriation will be to the detriment of the seafarer in cases of desertion, imprisonment or as a result of being discharged due to a willful undisclosed infirmity at the time of employment. Thus, arguably said that repatriation of seafarers in the event of a post piratic incident is not only captured in the MLC but also evidenced in the Ghana Shipping Act. Furthermore, the additions made to the provisions of the MLC in Act 645 highlights the minimum requirements set by the MLC and shows the stringent laws adopted to support the seafarer.

   It is thus concluded based on the findings that, the Act 645 is in most cases consistent with the MLC though a slightly different notion is aired in the area of repatriation. Findings also show that it is capable of protecting seafarers working on Ghanaian Ships as well as enforcing the Act in some cases against foreign ships. However, it is argued that the intent to provide adequate support to the seafarer is not satisfied since both legal instruments do not explicitly tackle the issue of piracy, thus serving as a bane to the seafarer. To provide for this, Act 645 will have to cover the enforcement gap.

It could be achieved through a reform and should also tackle the issue of termination of employment contracts during captivity. This, if considered will give adequate support and provide legal certainty to the Ghanaian seafarers.

Written by Jeffrey Botchway (LLM Maritime Law)

botchwayjeffrey@gmail.com

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