(www.MaritimeCyprus.com) The coronavirus (COVID-19) pandemic has created a global crisis which has impacted all aspects of life and badly affected the world of work. In the maritime sector, it has severely disrupted the functioning of shipping and affected the work of nearly 2 million seafarers worldwide.
Numerous governments and seafarers’ and shipowners’ organizations have turned to the International Labour Office (hereinafter the Office) for guidance on how best to address the complexities of the current crisis in light of the provisions of the Maritime Labour Convention, 2006, as amended (MLC, 2006).
This information note aims to respond to such requests by referring to the MLC, 2006, the work of the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), a statement of the Officers of the Special Tripartite Committee of the MLC, 2006, (STC) and, when relevant, the recommendations published by the International Maritime Organization (IMO) and the World Health Organization (WHO).
It should be noted that both the International Chamber of Shipping and the International Transport Workers’ Federation have been active since the beginning of this crisis to support seafarers and shipowners worldwide and provide advice to their members.
In general, it is recalled that under the MLC, 2006, derogations, exemptions or other clauses allowing for flexible application of the Convention by governments must be decided in consultation with shipowners’ and seafarers’ organizations, with any determinations that are made reported to the Office by the government concerned. The CEACR has on numerous occasions underlined the importance of these consultations for the implementation of the MLC, 2006.
This is seen as a necessary and important approach to ensuring that all countries, irrespective of national circumstances, can engage with the international
legal system and that international obligations are respected and implemented, to the extent possible, while efforts continue to be made to improve existing conditions. Governments are thus strongly encouraged to consult national seafarers’ and shipowners’ organizations in order to address a number of issues in the current context created by the COVID-19 pandemic in light of the MLC, 2006.
Finally, it is noted that the current circumstances might render compliance with some of the obligations set out in the MLC, 2006, materially impossible. As noted on a few occasions below, these circumstances could constitute cases of force majeure. Force majeure is “the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation” and which excuses noncompliance with an obligation.
These circumstances “do not annul or terminate the obligation; rather they provide a justification or excuse for non-performance while the circumstance in question subsists” and entail that compliance must resume as “soon as the factors causing and justifying the non-performance are no longer present”. There must be a causal link between material impossibility and the unforeseen circumstances. In short, the parties involved should make every attempt to comply with their obligations under the MLC, 2006, non-compliance.
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