Maritime and shipping professionals face a range of legal issues whilst at sea, which are not experienced by workers in other industries. In particular, criminalisation following involvement in a maritime incident has been widely discussed amongst unions and seafarers and is recognised as a serious problem.
Nautilus provides legal advice and assistance to members involved in such incidents, as well as those who have other issues at work, such as a personal injury or employment disputes. The following sets out a summary of Nautilus’s legal work in the UK, the Netherlands and Switzerland, as well as referring to some international and national legislative changes and developments.
The Maritime Labour Convention
The Maritime Labour Convention (MLC) came into force on 20 August 2013, and has now been ratified by 93 states representing 91% of the world fleet and, therefore, has global application. It even applies to non-MLC ships visiting states that have ratified the Convention through its ‘no more favourable treatment’ clause.
Nautilus has been heavily involved at many levels to ensure that the MLC delivers for seafarers, from its inception at the International Labour Organization (ILO), its amendments, its implementation into EU law and the legal systems in the UK, NL and CH.
The MLC is a ‘living instrument’, which can be amended to respond to the needs of seafarers, shipowners and maritime administrations. Nautilus has been at the forefront of work related to the three sets of amendments to date, as well as conceiving ideas for future improvements.
A summary of the 2014, 2016 and 2018 amendments (respectively) include:
Shipowners are now required to ensure that ships carry a financial security certificate to cover the costs of:
(i) repatriation of abandoned seafarers, wages (up to four months) and other expenses (ii) their liabilities for contractual claims relating to death or personal injury due to an occupational injury, illness or hazard as set out in national law, the seafarers’ employment agreement or collective agreement
Shipowners should take account, in a health and safety context, for issues arising from bullying and harassment, as well as the latest version of the International Chamber of Shipping/International Transport Workers’ Federation Guidance on Eliminating Shipboard Harassment and Bullying
Maritime administrations may extend the validity of a Maritime Labour Certificate for up to five months for compliant ships, and cases where it cannot immediately issue a new certificate
For seafarers who are held captive on or off a ship as a result of acts of piracy or armed robbery against ships, their seafarer employment agreement will continue to have effect and their wages and other entitlements under the Seafarers Employment Agreement or national laws (including allotments), shall continue to be paid
Since establishing the Nautilus 24/7 service, in October 2015, to help members around the clock, wherever they are in the world, there have been nearly 950 cases, assisting over 1,250 members.
Joint Assistance and Support Network (JASON)
In 2016, the department chaired a two-day legal workshop, attended by the legal officers and advisors of the Nautilus Federation unions. It highlighted the Federation’s commitment to ensuring that members can access their rights to fair treatment in the event of their involvement in an accident or incident at sea.
From this, the Joint Assistance and Support Network (JASON) was created to prevent seafarers from being victimised after maritime accidents and to ensure that they are treated by authorities in accordance with the International Maritime Organization (IMO)/ILO Guidelines on Fair Treatment of Seafarers in the event of a maritime accident, as well as other national and international safeguards.
The JASON network and Nautilus 24/7 complement each other in ensuring that members can get advice and assistance on just about any work-related matter at any time of the day or night.
These are wide ranging and include cases on abandonment and repatriation, contractual issues, unfair dismissals, bullying and harassment, unpaid wages, maritime incidents and other legal issues and welfare matters. Calls are also received from non-members wishing to join the Union. Members can contact Nautilus through LiveChat on the website, phone, text, email and Skype.
Nautilus carried out a survey into seafarers thoughts about criminalisation at sea, with results revealing:
of seafarers surveyed said they were worried about criminalisation of maritime professionals
1 in 5
respondents said they had been involved in a legal incident during their career on the sea
said the fear of criminalisation has a negative impact on their feelings about working at sea
The following cases, in which substantial sums of monies were recovered, show the value of Nautilus membership.
Nautilus has campaigned tirelessly over the past four years to aid seafarers and maritime professionals secure compensation when their incomes or savings have been compromised for various reasons. In the Netherlands, pensions are always a focus for the legal team, as they are a quarter to one-fifth of a member’s income in retirement. Since 2004, Nautilus has been in talks with IMO Shipping regarding non-compliance with a Collecting Bargaining Agreement (CBA) on members’ pension rights and growth. Over a ten-year period, the Union has kept up pressure and, in 2018, recovered more than €300,000 worth of members’ pension claims generated over the decade, without having to take the case to court.
The Union arrested the vessel on members' behalf, recovering a further $330,000 in unpaid wages
Another of the legal department’s key successes over the past years was securing payment for the crew of the superyacht, Indian Empress, which was impounded in Malta in a dispute over the owner’s failure to pay wages for many months.
The owner of the Isle of Man-flagged vessel, Vijay Mallya, was in severe financial trouble and, in January 2018, appeared at Westminster Magistrates Court, in the UK, fighting an application to have him extradited to India on charges of alleged fraud.
Nautilus represented the affected crew members and engaged the (MLC) financial security provisions to recover more than $615,000 from the P&I Club. The Union also arrested the vessel on members’ behalf, recovering a further $330,000 in unpaid wages, this being in excess of the four months’ wages covered by the MLC’s financial security provisions. Indeed, the case highlighted the importance of the MLC’s financial security system, without which, the crew would have been without relief until the arrest proceedings were concluded.
Legal Services Helpline
The UK Nautilus legal helpline offers advice on a wide range of legal matters to members on non-work-related issues, as well as to their relatives living at the same address. Since 1 October 2015, it has received many enquiries, as set out below:
Total enquiries: 113
|21%||Regarding dispute resolution|
|10%||Regarding personal injury|
|33%||Regarding personal injury|
|17%||Regarding family issues|
UK personal injury, accidents and disease
Since October 2015, the legal department of Nautilus has undertaken 82 personal injury, accident and disease cases, including:
Equipment related injuries
Slips, trips and falls
Asbestos related diseases
Hearing damage, including tinnitus
Burns and scolds
UK employment cases
Since October 2015, the department has been involved in 124 employment dispute cases including:
Redundancies and other dismissals
Transfer of undertakings (TUPE)
MLC and seafarer employment agreement claims
In the same period, the department recovered more than £600,000 in compensation.
Since the UK referendum result on 23 June 2016 to leave the EU, the department has been considering the legal implications of Brexit.
Nautilus has fought hard to ensure that seafarers have been included in EU workers’ rights, including the extension of important employment law directives (on collective redundancies, transfer of undertakings, European Works Councils and Consultation and Information), as well as the implementation of the MLC into EU law. At this stage, it is unknown what the long-term effects of Brexit will be, however, EU derived employment rights will be preserved during any transition period. Thereafter, at least for the short-medium-term, they should be preserved in the UK by virtue of the European Union (Withdrawal) Act 2018 in its current form. However, a ‘no deal’ scenario may cast some uncertainty over the preservation of some EU derived rights.
Nautilus is working hard to ensure that, whether a withdrawal deal is secured or not, seafarers’ voices are not overlooked in future discussions. The department is working hard to ensure that EU derived rights will continue to apply to seafarers.
Dutch Legal Issues
Nautilus’s Dutch branch has focused on individual and collective employment law cases, including against Van Oordand DFS, concerning the wrongful application of CBA. Both were won by Nautilus, though Van Oord appealed against the verdict of the Court of Rotterdam to the High Court.
In the DFS case, the Court ruled that the company could not refuse to pay annual wage rises during poor financial periods, suggesting alternatives, including reduced bonuses. All employees have now received outstanding payments.
In 2019, shipping company, CFL, was declared bankrupt. Nautilus gave legal advice and assistance to members employed by CFL and secured a payment agreement to ensure members were remunerated.
Nautilus also dealt with a criminal case concerning one member, a captain, who had to appear at the Dutch Criminal Court in Amsterdam, following an error by his first officer. Supported by the Union, he was acquitted.
In other cases, conflicts were resolved after liaising with employers, and employment contracts of several members were checked and reviewed. In several cases, wages claims were paid after threats of legal action by Nautilus.
Two important employment law changes have been approved by the Dutch Parliament. In 2020, ‘Wet Arbeidsmarkt in Balans’ will be enacted, improving conditions for employees with flexible contracts, for instance, requiring employers to offer full-time contracts to workers who have been in regular work
for 12 months. Furthermore, an organisation will only be able to recall an employee back for a short-term work engagement if it gives at least four days’ notice.
On 1 April 2020, the ‘Wet Compensatie Transitievergoeding’ will come into force, entitling employers who have paid employees on sick leave for more than 104 weeks to a refund from the UWV (Employee Insurance).
Swiss Legal Issues
In addition to many employment disputes that were resolved by correspondence, several matters were successfully concluded through litigation including, unpaid overtime, unfair dismissals due to participation in a union campaign against Viking and a personal injury claim for disability compensation. Nautilus is also appealing an important case to the Federal Court in Berne where the lower court ruled against members who had challenged an employer’s action in unilaterally varying contractual conditions relating to pay modalities.
Important legislation for inland waterways
Directive 2014/112, implementing the agreement on working time between the European Barge Union, the European Skippers’ Organisation and the European Transport Workers’ Federation, came into force in January 2018. It provides that, during a 12-month period, the average working week amounts to 48 hours. Since it is in the interest of employers and employees (who have travelled from overseas), to work, if required, up to 72 hours a week, this is permissible so long as there is an unequivocal working time registration, equivalent holiday periods or even a compensation payment at the end of the season.