ENFORCEMENT Of SEAFARER’S

CLAIM: UNDER THE

JURISDICTIONAL PRISM Of Maritime
Labour Convention, 2006
By:
Viyyash Kumar G.V & Nagarjun. S - Author
& Co-Author, 3rd year at BBA LLB (Hons.),
SASTRA University, Thanjavur.
MARITIME LABOUR CONVENTION, 2006

Seafarers’ “Bill of Rights”, in other words Maritime

Labour Convention, 2006 developed in Geneva by
International Labour Organisation to transmute itself as
“Fourth Pillar” to the international standards in the
domain of maritime regime. The purpose of MLC is to
protect, safeguard, and to regulate the broken rights of the
Seafarers.
 SEAFARERS EMPLOYMENT AGREEMENT, 2006.

 MLC 2006 Regulation 2.1 deals with the Seafarers employment contract
(referred to as “SEA”) which was introduced within the MLC 2006 and
maybe a vital document for ensuring that clear information is available to the
seafarers regarding the terms of employment for the seafarer. For seafarers
whose conditions of employment are established under a negotiation
agreement, the provisions within the agreement are often incorporated by
reference. It must be signed by Seafarer and Seafarer's employer, be easy to
know, and legally enforceable. . Applicable Collective Bargaining
Agreements (hereinafter referred to as “CBA”) are normally incorporated
within the employment contract. The information set out in the terms and
conditions of the employment agreement, including the CBA, must be easily
accessible by the seafarers.
 MEMBER STATES OBLIGATIONS TOWARDS
THE SEAFARERS’ EMPLOYMENT AGREEMENT
 Each Member shall adopt laws or regulations requiring that ships that fly their flag suiting
the subsequent requirements:
 Seafarer’s employment agreement must be signed between the seafarer and the ship-owner or
any of the representatives of the ship-owner ensuring them with reasonable working and
decent living conditions on board the ship as needed by this Convention.
 Seafarers signing a seafarers' employment contract shall tend a chance to look at and seek
advice on the agreement before signing, also intrinsically other facilities as are necessary to
make sure that they need freely agreed with a sufficient understanding of their rights and
responsibilities.
 The signed original of the seafarers’ employment agreement must be possessed by the
seafarer and the ship-owner, each having one copy of the agreement.
 Measures shall be taken to make sure that clear information on the conditions of their
employment is often easily obtained onboard by seafarers, including the ship's master, which
such information, including a replica of the seafarers' employment contract, and such
information is readily available for officers who are considered as having competent authority.
 To ensure valid employment, the Seafarers should have an employment agreement.
Flag State Responsibilities:- 
 To ensure that every Member implements its responsibilities under this Convention
concerning the ships that flies its flag. Every flag State that has accepted this Convention is
liable for ensuring and checking if the MLC’s requirements are being carried out onboard
ships flying its flag Maritime Labour Convention. If the matter is with the flag State, i.e., it's
not put in situ adequate regulations to implement the Convention, the difficulty should be
mentioned by the International Transport Workers' Federation (hereinafter referred to as
“ITF”) to be raised through official channels of the International Labour Organization. The
flag state should enforce the compliance under the convention through their individual
national laws.

Port State Responsibilities:-

. The major port state responsibility is to enable each member of the convention to implement its
responsibilities and regulations set under this Convention for kindling the growth of
international cooperation within the foreign ships Maritime Labour Convention, Regulation
5.2 (2006).
 Normally a Port State Control inspector will continue board and just make
sure the maritime labor certificate and therefore the declaration of maritime
labor compliance are so as a more detailed inspection is often administered
under the subsequent circumstances through the maritime labour
convention. Seafarers’ and ship owners' organizations need to be told of
serious complaints or deficiencies found within the course of inspections in
port.

Labour Supplying States Responsibilities:-

 These responsibilities under this convention mandate the labor supplying
states to enforce the seafarer recruitment and placement services for the
welfare of its seafarers. The labor supplying States need to make sure that
the labor's working conditions are being properly organized and regulated.
There is an obligation of social security response to be enforced by them.
Prescriptive Jurisdiction:-
Prescriptive jurisdiction is "to prescribe, i.e., to form its law applicable to the
activities, relations, or status of persons, or the interests of persons in things,
whether by legislation by an executive act, or order by any administrative rule or
recognition, or by determination by a court. The territorial principle has been an
indisputable and exclusive claim to jurisdiction, as enforcement within one's
borders is closely associated with the sovereignty of a state. The prescriptive
jurisdiction to some extent has been unclear. Hence, it's been the practice for
prescriptive jurisdiction to not require justification to be enforced as long because it
isn't prohibited by the law of nations, especially when the extraterritorial conduct is
often made connections to a criminal offense committed during a state's territory –
whether it's going to be per subjective or objective territorial principle.
.
Enforcement Jurisdiction:-

As per Article 94 of the 1982 United Nations Convention on the Law of the ocean (hereinafter referred
to as “UNCLOS”), “every (Flag) State shall effectively exercise its jurisdiction and control in
administrative, technical and social matters over ships flying its flag. The supervision over
sovereignty is restricted, which also explains why the enforcement of previous ILO maritime labor
standards became fragmented and ineffective. Owing to the weakness and poor performance of the
FSI, Port States were given the authority to perform enforcement jurisdiction over foreign ships in
their waters in response. The enforcement jurisdiction exercised by the Port States and therefore the
Flag States is consistent. Under Article 94 of UNCLOS, the role of the Port States was to supplement
the roles and duties which should be performed by the Flag States. Nowadays, international treaties
and practices are slowly in the approach of shifting the burden of an opportunity for enforcement
from the Flag States to the Port States. However, some Port States can also hesitant to exercise the
enforcement jurisdiction over maritime labour matters, and their practices could also be limited
within certain boundaries. Consistent with Article 5 of the Convention on the High Seas.
Adjudicative Jurisdiction:-

As is usually the case in the law of nations,

whether states suit the limits—or obligations—
which law of nations sets regarding the exercise
of Port State Jurisdiction (herein afterward
referred to as “PSJ”), may considerably seem to
be an issue of auto-interpretation by states. The
MLC doesn't exactly present an adjudicative
jurisdiction rule for the member states regarding
the maritime labor issues while entitling member
states to act using their own discretion.
 THE SHALLOWNESS OF Maritime
Labour Convention IN THE
ENFORCEMENT OF SEAFEARER’S
CLAIM

&

PERSPECTIVE OF MARITIME
LABOUR LAW UNDER Civil Law &
Common Law
THE SHALLOWNESS OF MARITIME
LABOUR CONVENTION IN THE
ENFORCEMENT OF SEAFEARER’S
CLAIM
Lack of Control Over Practice of “Crew of
Enforceability Convenience”

Practice of “Flag of Absence of Mandation to

Convenience“ Appropriate Jurisdiction
Lack of Control Over Enforceability
 This convention falls under the categorization to be a “soft
international law” as it substantially restricts to gain of control
over the enforcement of this Convention.
 Article V is the heart and Article XIII is the soul of this
convention.
 Article V reads “Each Member shall implement and enforce laws
or regulations or other measures that it has adopted to fulfil its
commitments under this Convention…” here the words “has
adopted to fulfil” gains a greater significance. Article V of this
Convention is basing the discretion of the member state in
implementing this convention. Maritime Labour Convention, art.
V (2006).
 Ignorance of Reciprocal Fairness
 The purpose of inspections by the respective member states by
virtue of Article V of this convention is to be vigilant about the
compliance of this Convention and cease dealings with those
violators
 In contra, the parties compromise their ignorance or violations of
the Convention to meet their economic ends
Practice of “Flag of Convenience“
 The International Transport Workers’ Federation (ITF) defined FOC as “where
beneficial ownership and control of a vessel is found to be elsewhere than in the
country of the flag the vessel is flying” in the year 1974
 It favours the ship-owner, it is entailed with hedged seafarer rights.
 This gravely dilutes the claims and rights of the seafarer as it is internationally accepted
that the law of the flag state governs the vessel

 “Genuine Link” and Maritime Labour Convention

 Article 91 of the UNCLOS prescribes that “There must exist a genuine link between the
State and the ship”. Evidently, this criterion is not addressed expressly under the MLC.
UNCLOS, art. 91 (1982).
 The ITLOS in the case of Saint Vincent and the Grenadines v. Guina accepted the
evidenced procedures and its compliance with SOLAS 1960 and 1974, and other
conventions of the IMO to establish the “Genuine Link”
 The amalgamation of FOC and the absence of “Genuine Link” will render grave
injustice to the seafarer during the invocation of Flag State’s jurisdiction over the
matters related to SEA and other maritime labour matters.
Practice of “Crew of Convenience”

 “Crew of Convenience” (hereinafter referred to as “COC”) is a derivative

or an evolved practice from the FOC. This practice can be understood as
a “pursuit of “cheap” crews for placement on FOC ships has created the
market of “crew of convenience” ”
 The wages are low and adapt to poor working standards, this crew often
belong to the under-developed nations wherein seafarer’s rights are less
significant and nascent in the field of their domestic law.
 The Convention also fails to resolve this arousal of conflict of law and
forum selection if a vessel is flying a flag of a state that is a FOC, and
practices COC, and a seafarer breaches the SEA in the port state
 The Seafarer’s claim will not hold water under the jurisdiction of the flag
state nor the labour supplying state, as both these fall under FOC and COC
nations
Absence of Mandation to Appropriate
Jurisdiction
 The UNCLOS prescribes special tribunals and courts for diverse matters
as mandated under Article 27 of Part II, Article 28 of Part II, Article 56 of
Part V, Article 59 of Part V, Article 97 of Part VII, Article 187 of Part XI,
Article 189 of Part XI, and Article 288 of Part XV.
 Under the UNCLOS, the determination of the applicable law is vividly
addressed under Article 21 of Annex III, Article 23 of Annex V, Article
38 of Annex IV, and Article 293 of Part XV. Article 23 of Annex V and
Article 38 of Annex IV roots themselves to Article 293 of Part XV, and
Article 293 reads “A court or tribunal having jurisdiction under this
section shall apply this Convention and other rules of international law
not incompatible with this Convention”, herein the provision prescribes to
use “other rules of international law” to determine the applicable law and
the same guidance as prescribed under Article 21 of Annex III. And such
guidance to determine the appropriate jurisdiction and applicable law
under the MLC is absent.
 UNCLOS, XV, art. 293 (1982).
 Under the Title 5 of the Convention reads: “The provisions of this Title
shall be implemented bearing in mind that seafarers and ship-owners,
like all other persons, are equal before the law and are entitled to the
equal protection of the law and shall not be subject to discrimination in
their access to courts, tribunals or other dispute resolution mechanisms.
The provisions of this Title do not determine legal jurisdiction or a legal
venue.” usage of “do not determine legal jurisdiction or a legal venue”
portrays the reluctance of the MLC to provide a guidance or method to
determine legal jurisdiction and venue. Maritime Labour Convention,
Title 5, § 1 (2006).
 PERSPECTIVE OF MARITIME
LABOUR LAW UNDER CIVIL LAW &
COMMON LAW
Civil law
&
Common law
 Civil Law (EU)
 The civil law perspective can be deciphered by understanding the jurisprudence of the European
Union (hereinafter referred to as “EU”) with regards to the MLC.
 The EU’s approach in this subject matter is inclined towards seafarers. The EU considers
seafarers as a weaker party compared to the ship-owner; hence it prioritizes protecting the rights
of the seafarer.
 According to the EU law, Article 288 of the Treaty on the Function of the European Union
(hereinafter referred to as TFEU) mandates that “the institutions shall adopt regulations,
directives, decisions, recommendations and opinions. A regulation shall have general
application. It shall be binding in its entirety”. The EU’s institutional rules on procedures,
jurisdictions, are often guided and amended by the EU directives. Treaty on the Functioning of
the European Union, art. 288 (2012).
 A pertinent fact to be noted is, not all the member states of the EU have ratified the MLC. The
EU issues directives of adopting the parts of MLC and transmutes them to EU law
 The Paris MoU on Port State Control plays a key role in the attitude of EU law with respect to
the jurisdiction.
 .The EU’s approaches towards determining the jurisdiction in maritime labour matters are: (i)
Firstly, the ship-owner’s state is given priority to adjudicate matters over SEA. (ii) Secondly, the
Flag State is granted jurisdiction if the flag of the vessel is an EU member state. (iii) Thirdly, if
the seafarer performs his duties or is employed by more than one flag state, the Port State is
granted jurisdiction
 The EU also relies on the “principle of proportionality” Article 296 of the TFEU reads “where
the Treaties do not specify the type of act to be adopted, the institutions shall select it on a case-
by-case basis, in compliance with the applicable procedures and with the principle of
proportionality”  to secure and protect the interest of the seafarers.

 Common Law (U.K)
 The UK’s approach towards adjudicative jurisdiction is slightly different from the US. The UK is more inclined
towards exercising its jurisdiction over matters of “right in rem”. The categorization of this “right in rem” split
into “truly in rem” and “quasi in rem”
 Generally, the Admiralty Court exercises its jurisdiction by virtue of Section 20(1) of the Senior Courts Act 1981
when the right or claim falls “in rem”, and for civil matters, the jurisdiction is invoked through the International
Convention on Certain Rules concerning Civil Jurisdiction in matters of Collision wherein the claims are  “in
personam” only if:
 “(a) the defendant has his habitual residence or place of business within England or Wales; or
 (b) the cause of action arose within the inland waters of England and Wales or within the limits of a port of
England and Wales; or
 (c) an action arising out of the same incident or series of incidents is proceeding in the High Court or has been
heard and determined in the High Court;
 (d) the defendant has submitted or agreed to submit to the jurisdiction of the High Court Note that there are no
such restrictions placed upon the exercise of jurisdiction in a collision claim in rem.”
 Common Law (U.S)
 The US does not enumerate any categorization. Under US maritime law, right “in rem”, “in personam”,
and “quasi in rem” are recognized and gives an option to the claimant to file a suit in a federal district in the
nature of a maritime suit, or to file a suit in a state court in the nature of a non-maritime suit.
 The Jones Act of the US law is the statute that generally governs the rights of the seafarers. The general
practice adopted by the US can be witnessed in the case of Romero v. Int’l Terminal Operating
Co[  and Francisco v. Stolt. Achievement.  Romero v. Int’l Terminal Operating Co., 358 U.S. 354 (1959).
 Francisco v. Stolt Achievement, 293 F.3d 270 (5th Cir. 2002).
 In the Romero case, a Spanish citizen executed an employment contract in Spain under the Spanish flagship
and injured in the waters of the US, the claim was not subjected to US law.
 in the Francisco case, the claimant was a Filipino citizen and was employed in a contract signed in the
Philippines under the Liberian flagship; the claimant was injured in New Orleans and also had an office in
the US. Hence, the claim was governed by US law. The court shall decide the applicability of the Jones Act
on these bases:
 “(1) the place of the wrongful act; (2) the law of the vessel's flag; (3) the allegiance (nationality) or
domicile of the injured seaman; (4) the allegiance of the ship-owner; (5) the place of the contract; (6)
inaccessibility of the foreign forum (jurisdiction); (7) the law of the forum; (8) the vessel owner's base of
operations“
 CONCLUSION
The MLC’s flexibility and its soft character eschew addressing core areas in
determining the appropriate jurisdiction. It is imperative to note the plausibility to
bend the MLC by the violators to meet their economic desire and rendering
injustice to the seafarers, which is in contra to the purpose of MLC. Furthermore,
the MLC’s flexibility extends to even amending the convention and the code by
virtue Article XIV and Article XV. We authors herein conclude in a suggestive note
to amend the MLC similar to 2014 MLC Amendments in order to, effectuate, strike
an equal balance among the Flag Sate, Port State, and Labour Supplying State,
elucidate the role of Ship-owners’ State, and to determine the appropriate
jurisdiction, thereby protecting the interests of the seafarers and safeguarding from
exploitations.