Maritime Labour Law

• Author: Edgar Gold; Aldo Chircop; Hugh M. Kindred; William Moreira
• Pages: 460-503

460

CH AP TER 11

MARITIME LABOUR LAW

A. INTRODUC TION

Despite the essential role of seafarers in ships’ operations, maritime

labour issues are often not covered, except indirectly, or in passing, in

maritime law texts.1 This may be because of the potential breadth of

the topic and the way in which issues related to seafarers’ employment

intersect with the legal system. For example, until recently, matters

such as onboard accommodation standards or safety related issues such

as minimum hours of rest or maximum hours of work were more like-

ly to arise in the context of inspections by a f‌lag state or under port

1 The legal issues relating to the employment of seafarers and the regulation of

working and living conditions — maritime labour law — were dealt with indirect-

ly in the previous edition; for example, maritime liens, torts, ship safety and

security implementation, the regime of port state control, and general questions

related to constitutional jurisdiction. In addition to this chapter, these topics

are also addressed in Chapters 3, 5, 7, 9, and 24. For treatment of these subjects

in the United States, see, for example, various volumes of Erastus Cornelius

Benedict, Benedict on Admiralty, 7th ed (New Providence, NJ: Matthew Bender,

LexisNexis, 2013) loose-leaf; Thomas Schoenbaum, Admiralty and Maritime Law,

5th ed (St Paul, MN: West, 2012); and Robert Force & Martin Norris, The Law of

Seamen, 5th ed (New York: Reuters, 2003). The latter provides a comprehensive

review of rights and obligations under US maritime law and practice as it applies

to seafarers, including extensive coverage of caselaw, statutes, as well as the treat-

ment of claims f‌iled in US courts by foreign seafarers.

Maritime L abour Law 461

state control.2 Issues such as a shipowner’s failure to pay wages or fulf‌il

other terms of employment, although often also the subject of legis-

lation, tended to result in private law actions including, in situations

where a maritime lien3 or maritime claim exists, the arrest and possible

sale of a ship. In addition, many seafarers are covered by collective bar-

gaining agreements,4 in which case employment issues arise as a griev-

ance under the agreement and may be addressed under the collective

bargaining regime, which may include a choice of law and/or forum

clause. Also, if there is a breach of a seafarers’ employment agreement

(SEA),5 the SEA may contain a forum and/or choice of law clause, a pri-

vate international law concern that may also affect claims and outcomes.

In common with other topics of maritime law, maritime labour law

combines a complex mix of public and private international and domestic

law, often with multiple jurisdictions implicated. As Tetley noted in 1992:

Modern maritime transport, being essentially international or inter-

jurisdictional, is subject to frequent problems concerning the appro-

priate choice of law, choice of jurisdiction, and recognition of foreign

judgments. In addition, conf‌licts of law issues often arise because the

vessel itself may be arrested and suit may be commenced against it or

its owners in any one of the world’s admiralty courts.6

It is also a topic requiring consideration of several different perspectives

and interests. For example, under international law, Canada, as a f‌lag

state, has responsibility for conditions on board ships operating under

its f‌lag that are undertaking international voyages.7 As will be explained

2 See Chapter 3 for a discussion on the role of port states and description of the

regional port state control (PSC) regimes.

3 See Chapter 9 or, where relevant, claims under the International Convention on the

Arrest of Ships, 1999 (Chapter 6 at note 55). The historical common law right of

seafarers to “maintenance and cure” also continues to exist irrespective of codif‌i-

cation in legislation.

4 See, for example, Seafarers’ International Union of Canada (SIU), online: SIU

www.seafarers.ca/siu-prof‌ile; International Transport Workers’ Federation (ITF),

online: ITF www.itfseafarers.org/about.cfm. For examples of specif‌ic ITF collect-

ive agreements see online: ITF www.itfseafarers.org/itf_agreements.cfm and below

note 21.

5 This term is increasingly used to cover diverse forms of employment contracts

including articles of agreement.

6 William Tetley, “The Law of the Flag, Flag Shopping, and Choice of Law” (1992–

1993) Tulane Maritime Law Journal 139 at 143.

7 See Chapter 7. Reliable data on the Canadian f‌leet is not easy to obtain. Accord-

ing to the Canada Gazette in 2009 approximately f‌ive percent of Canadian ships

over 200 gross tonnage (GT) were involved in international voyages. Regulatory

Impact Analysis Statement (SOR/2010-120), (2009) C Gaz 1, Vol 143, No 34,

PART III: SHIP OWNERSHIP, FINANCING, INSURANCE, AND CREWING462

below, under applicable international conventions and, as a matter of

national law, this international regulatory role also extends, to some

extent, to ships operating under its f‌lag that do not go on international

voyages. As a port state, Canada has the right and, arguably, the respons-

ibility under international conventions and under regional PSC memo-

randa of understanding (MOUs), to inspect specif‌ic issues with respect

to foreign f‌lagged ships entering Canadian ports. These inspections in-

clude maritime labour matters.8 Canada also has certain responsibilities

as a labour-supplying state for specif‌ic matters with respect to Canadian

seafarers irrespective of whether they work on board ships that are

registered in Canada or on foreign f‌lagged ships.9 These responsibilities

1047. According to data collected by the United Nations Conference on Trade

and Development (UNCTAD), as of January 2014 Canadian companies are the

benef‌icial owners of 356 ships including the Great Lakes f‌leet, the majority of

which (70 percent based on tonnage) operate under the f‌lags of other countries,

UNCTAD, Review of Maritime Transport 2014 (Geneva: UN Publications, 2014),

Table 2.3. See also UNCTAD, “Merchant f‌leet by country of benef‌icial ownership,

annual, 2014,” online: UNCTAD http://unctadstat.unctad.org/wds/TableViewer/

tableView.aspx?ReportId=80100. However, in terms of “real” shipowner interests,

it is important to understand, as the UNCTAD report points out (at page 38),

“Belgium, Canada, Greece, Hong Kong (China), Italy, Norway and Saudi Arabia,

on the other hand, are more important ‘real’ shipowners as compared to their

market share under benef‌icial ownership location. These economies have often

been historically the home of important shipowning interests, yet owners have

found it at times in their interest to move their operations abroad.”

8 Canada is a member of both the Memorandum of Understanding on Port State

Control in Implementing Agreements on Maritime Safety and Protection of the Marine

Environment, 26 January 1982, as amended, online: Paris MOU www.parismou.

org [Paris MOU] and the Memorandum of Understanding on Port State Control

in the Asia-Pacif‌ic Region, 1993, as amended, 1 December 1993, online: Tokyo

MOU www.tokyo-mou.org. Together these MOUs cover ships engaged in Atlantic

Ocean and/or Asia Pacif‌ic voyages.

9 Leaving aside the issue of def‌inition, ascertaining the number of Canadian seafar-

ers is not easy. Although there is still a “central registry of seafarers,” as of 2008

Transport Canada no longer maintains a record-keeping role. However, it issues

seafarers’ identity documents in accordance with the Seafarers’ Identity Document

Convention, 1958 (No 108), 13 May 1958, 389 UNTS 277, and, on a voluntary

basis, in conformity with the Seafarers’ Identity Documents Convention (Revised),

2003 (No 185), 19 June 2003, 2304 UNTS 121, with enhanced security controls,

until such time as Convention No 185 is ratif‌ied. As noted on the Transport Can-

ada website notice (dated 3 January 2013) “Seafarers’ Registry, Contributions and

Marine Emergency Duties (MED) Divestiture Programs,” “[w]ith the coming into

force of the Canada Shipping Act 2001 (CSA 2001) on July 1, 2007, and the imple-

mentation of the Marine Personnel Regulations, the responsibility for maintaining

seafarer records has shifted to the seafarer and the authorized representative.

Transport Canada will no longer maintain a registry to support seafarer records.

To respond to the modern activities of the Central Registry of Seafarers, Off‌icial