A recent application for judicial review of the Maritime & Coastal Agency’s (MCA’s) alleged failure to enforce a key provision of the Maritime Labour Convention (MLC) brings sharply into focus how the MLC can lead to criminal proceedings against the owner of a UK flagged vessel and its master in his personal capacity.
By way of reminder, UK flagged vessels became subject to the terms of the MLC by regulations made in 2013 (the Regulations) after the Convention came into force. Shipowners and their masters who breach the MLC could be liable to fines and/or imprisonment under the Regulations, in particular where the seafarer is subject to a “detriment” on the grounds of lodging a complaint regarding alleged breaches of the MLC. Examples of a detriment might be dismissing the seafarer, bullying or harassment, giving menial or unpleasant tasks or reducing overtime.
The MLC does not enable seafarers to claim compensation for breach of its obligations; however, a seafarer can trigger an investigation by the MCA into whether a complaint has been properly handled. The only defence available to a shipowner or master is to show that all reasonable steps were taken to ensure compliance with the Regulations. If the shipowner/master is found to be in breach, the MCA can prosecute. However, if the seafarer is dissatisfied with the MCA’s handling of their complaint, they can apply to the UK Courts for a judicial review to establish whether the MCA has properly carried out its enforcement powers. Any finding that the MCA did not properly deal with the matter will inevitably result in another more detailed investigation and may result in potential fines and imprisonment for the shipowner or master and, possibly also, the detention of the ship while the investigation is carried out.
The recent case of Wilson v Secretary of State for Transport (2015), which concerned such a judicial review, gives us an interesting insight into how the MCA are handling the enforcement of the obligations under the Regulations. In this case, the seafarer, Mr Wilson, was a Fleet Trainer on board a cruise vessel. In the first months of his employment, he became unhappy about the way his employer operated in a number of respects and decided to complain. He escalated that complaint to several senior figures including the company’s President. Shortly thereafter, Mr Wilson was sent home from the voyage and dismissed. He protested to the MCA that he had suffered a detriment because he had raised grievances about breaches of the MLC. When that course of action failed, he brought judicial review proceedings before the High Court. This was also unsuccessful because the Court decided that the complaints were not about breaches of the MLC at all but, rather, they were around his annoyance at his berth being moved, clerical errors with his pay and his view that the company did not comply with its own “values” which included respect for employees. None of these are covered by the MLC.
So what can a shipowner or master do to protect itself? They will need to show that all reasonable steps were taken to comply with the obligation, such as properly training its masters to manage complaints and to avoid detriments being applied to those who complain. Of course, in this case, the shipowner’s defence was that it was not the complaint itself that caused the dismissal; it was the manner in which he raised the complaint at an inappropriately senior level which led to the detriment. This is an often cited defence in whistleblowing detriment cases in the UK Employment Tribunals and one which has had mixed success. It is often very difficult to draw the line between the manner and the substance of the complaint, and taking such action without investigating the complaint is certainly high risk.
Whilst this regime is limited to ships flagged in the UK, the case also referred to the right of seafarers to make a similar complaint when a ship enters a UK port, regardless of the flag, and we are aware that other flags have implemented similar legislation.
The International Labour Organisation, which developed the MLC, was joined as an “interested party” to this case, making it clear they are watching closely how far the MLC is being applied. The seafarer unions will also be watching.