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Seafarers' Continuous Service – Ships Calling At Australian Ports - Update

In a briefing in October 2020, we set out AMSA's special extension to the maximum period of time that seafarers could serve on board ships calling Australian ports1. In short, due to the unique circumstances facing international shipping during the COVID-19 pandemic, AMSA extended the maximum period of continuous service from 11 to 14 months. Accompanying this change was a framework for closer scrutiny of seafarer workplace arrangements and repatriation plans should the period of continuous service be extended past 11 months.

AMSA had intended that from 1 October 2020, the special extensions would be removed and the regulatory regime imposed on vessels visiting Australian ports revert back to the "sustainable and safe" pre-COVID conditions around enforcement.

On 11 November 2020 AMSA stated that as a result of COVID-19 continuing to disrupt and impact maritime safety and seafarer wellbeing, the special period of extensions to maximum seafarer service would continue through until the end of February 2021.

In summary (AMSA Marine Notice 10/2020, effective 11 November 2020 to 28 February 2021):

  • AMSA will not take action in circumstances where the seafarer has a valid seafarer employment agreement and has served on board for less than 11 months (ie, until the end of the 10th month of continuous service).
  • Where the seafarer has a valid seafarer employment agreement and served on board for between 11 and 14 months (ie, until the end of the 13th month of continuous service), the master must provide a plan for the seafarer's repatriation approved by the flag state.
  • AMSA will not permit extensions beyond 14 months unless:
    • all possible efforts have been made to repatriate the seafarer;
    • The seafarer has provided written confirmation accepting the extension; and
    • There is a plan in place to repatriate the seafarer within a month.
  • Where seafarers are found not to have valid employment agreements, the master will be required to either facilitate a valid employment agreement, or repatriate the seafarer.

Recent AMSA Detentions

Since the beginning of 2020, AMSA has detained three vessels for failing to comply with the special exemptions to continuous service periods:

  • the Marshall Islands-flagged bulk carrier "Ben Rinnes" which had two seafarers on board who had served continuously for 13 months with no repatriation plan in place before the expiry of 14 months of continuous service;
  • the Panamanian-flagged vehicle carrier "Metis Leader" which, reportedly, had five crew who had served 12 months on board, two in excess of 14 months, three who had been on board for more than 15 months (including the ship's master); and
  • the Panamanian-flagged general cargo ship "Brio Faith" which, reportedly, had three crew who had been on board for over 12 months, four who had been on board for 16 months and two who had served over 20 months. AMSA did not permit the vessel to depart Port Alma in Queensland until it had received evidence that the affected crew would be repatriated immediately.

To date in 2020, AMSA has also detained the following vessels for other serious breaches of the Maritime Labour Convention:

  • Five vessels for failing to pay seafarers in full and/or for long lapses between payments;
  • One vessel where seafarers were working under expired contracts of employment;
  • One vessel with inadequate living and working conditions;
  • Two vessels that had failed to ensure seafarers' employment and social rights;
  • One vessel where multiple wage accounts were kept on board and the wages that had been paid were not in accordance with seafarer employment agreements;
  • One vessel where seafarers had not been paid in accordance with employment agreements and were working excessively long hours (up to 84 hours per week).

Wider Industry Snapshot

The IMO estimates that as of late September 2020, some 400,000 seafarers remained on board commercial vessels past the expiry of their contracts. In some instances – as has been reported overseas, seafarers have been on board vessels for up to 17 months.

The situation is exacerbated by the present difficulty in performing crew changes as a result of lack of available flights, the patchwork of country/port rules and regulations, and other restrictions affecting travel and movement. Against this backdrop is a humanitarian concern that excessively long periods of seafarer service threatens the health, safety and wellbeing of seafarers, as well as putting trade and maritime safety at risk.

In October 2020 the IMO, in collaboration with the major international shipping associations, issued a recommended framework of protocols for ensuring safe ship crew changes and travel. The protocols built on the IMO's major recommendations and were directed at governments around the world. The protocols were that seafarers:

  • be designated as "key workers" who provide an essential service and be afforded enhanced rights when crossing international borders;
  • be afforded appropriate exemptions to travel restrictions and be allowed transit through territories for the purposes of joining or leaving ships;
  • have access to approval and screening protocols for crew changes and repatriation; and
  • have access to basic protective measures such as appropriate personal protective equipment

On 11 November 2020 the IMO's Maritime Safety Committee approved the protocols, giving the movement formality. Many countries designated seafarers as "key workers", or provided the equivalent travel exemptions, however, at the time of writing Australia (on a national level) had not implemented the protocols or provided special exemptions for international seafarers travelling to and from vessels.

Recommended Action

Using recent AMSA detentions as a guide, crew employment history and arrangements will continue to be subjected to a heightened level of scrutiny. Owners should continue to make arrangements to repatriate crew before any non-compliances arise and owners and masters are well advised to have ready for inspection the crew's continuous employment histories, with all mutually agreed extensions properly documented.

For further information, please contact the authors of this briefing;

Hazel Brewer
Partner, Perth
T +61 (0)8 9422 4702
E hazel.brewer@hfw.com

Benjamin Adamson
Associate, Perth
T +61 (0)8 9422 4727 
E benjamin.adamson@hfw.com

Footnotes:

  1. https://www.hfw.com/Seafarers-Continuous-Service-Ships-Calling-Australian-Ports-October-2020

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