As an alternative, both the MLC, 2006 and C188 lay down shipowners’ and
fishing vessels owners’ liability in the event of sickness, injury or death.
31 Noteworthy is that this liability includes sickness and injury occurring between the date of
commencing duty and the date of their repatriation, reminding paragraph 1, letter a)
of Standard A4.2.1 of the MLC, 2006 “or arising from their employment between
those dates”. While this is a source of litigation in many countries, the occupational
nature of sickness and injuries arising out of rescues at sea should not be subject to
discussion. Article 39 of C188 is not as specific as the MLC, 2006. However, and in
light of their objectives and intrinsic connection, long term psychological or physical
effects related to rescue at sea must entitle seafarers or fishermen to medical care and
compensation, even if their employment contract had already terminated.
In order to ensure the shipowner’s liability in the event of death or long-term
disability of seafarers due to an occupational injury, illness or hazard, the 2014
amendments to the MLC, 2006 request States to set up a mandatory system of
financial security that may take the form of a social security scheme or insurance or
fund or other similar arrangement.
32 It is not yet clear in which manner States are
implementing this fundamental request, but P&I clubs already provide insurance
policy to this end. The issue is now whether financial security is in place if seafarers
need to resort to them, to which end States should ensure implementation and
enforcement. In contrast, C188 lacks a similar provision.
All in all, there are some tools to meet occupational hazards arising out of the
maritime migration challenge. However, their efficiency and effectiveness depend
on a diverse number of factors in view of the many companies, seafarers and
fishermen involved in rescue operations. More importantly, they only partly assuage
the damage caused by those coastal States that avoid their responsibility in
preventing the loss of life at sea and in collaterally securing a safe and secured
navigation of the seas. The international community has already spoken against this
opportunistic behaviour without much success. It might be time for further innovative actions in line with the group action brought by asylum-seekers confined in
Manus Island against Australia,
33 or that of a Dutch foundation against The Netherlands government for having taken too few asylum seekers from Greece compared
to the figures laid down in the EU relocation and resettlement deal of 2015 (Verhelle
2019). While these collective actions have been brought before court on behalf of
migrants, employers and/or employees might also be suitable candidates for a
redress collective action in view of the troubles that they encounter in assisting
people in distress. The concluding remark is why it is necessary to resort to such
extreme mechanisms in a matter that the law of the sea has solved centuries ago.
31 Regulation 4.2, Standards A4.2.1 and A4.2.2, Guidelines B4.2.1 and B4.2.2 of the MLC, 2006,
and arts. 38 and 39 of C188.
32 Paragraphs 8 et seq of Standard A4.2.1 and Standard A4.2.2. of the MLC, 2006 as amended.
33 Manus Island class action, Kamasaee v. Commonwealth & Ors (S CI 2014 06770).
Occupational Hazards in the Light of the Maritime Migration Challenge
93
fishing vessels owners’ liability in the event of sickness, injury or death.
31 Noteworthy is that this liability includes sickness and injury occurring between the date of
commencing duty and the date of their repatriation, reminding paragraph 1, letter a)
of Standard A4.2.1 of the MLC, 2006 “or arising from their employment between
those dates”. While this is a source of litigation in many countries, the occupational
nature of sickness and injuries arising out of rescues at sea should not be subject to
discussion. Article 39 of C188 is not as specific as the MLC, 2006. However, and in
light of their objectives and intrinsic connection, long term psychological or physical
effects related to rescue at sea must entitle seafarers or fishermen to medical care and
compensation, even if their employment contract had already terminated.
In order to ensure the shipowner’s liability in the event of death or long-term
disability of seafarers due to an occupational injury, illness or hazard, the 2014
amendments to the MLC, 2006 request States to set up a mandatory system of
financial security that may take the form of a social security scheme or insurance or
fund or other similar arrangement.
32 It is not yet clear in which manner States are
implementing this fundamental request, but P&I clubs already provide insurance
policy to this end. The issue is now whether financial security is in place if seafarers
need to resort to them, to which end States should ensure implementation and
enforcement. In contrast, C188 lacks a similar provision.
All in all, there are some tools to meet occupational hazards arising out of the
maritime migration challenge. However, their efficiency and effectiveness depend
on a diverse number of factors in view of the many companies, seafarers and
fishermen involved in rescue operations. More importantly, they only partly assuage
the damage caused by those coastal States that avoid their responsibility in
preventing the loss of life at sea and in collaterally securing a safe and secured
navigation of the seas. The international community has already spoken against this
opportunistic behaviour without much success. It might be time for further innovative actions in line with the group action brought by asylum-seekers confined in
Manus Island against Australia,
33 or that of a Dutch foundation against The Netherlands government for having taken too few asylum seekers from Greece compared
to the figures laid down in the EU relocation and resettlement deal of 2015 (Verhelle
2019). While these collective actions have been brought before court on behalf of
migrants, employers and/or employees might also be suitable candidates for a
redress collective action in view of the troubles that they encounter in assisting
people in distress. The concluding remark is why it is necessary to resort to such
extreme mechanisms in a matter that the law of the sea has solved centuries ago.
31 Regulation 4.2, Standards A4.2.1 and A4.2.2, Guidelines B4.2.1 and B4.2.2 of the MLC, 2006,
and arts. 38 and 39 of C188.
32 Paragraphs 8 et seq of Standard A4.2.1 and Standard A4.2.2. of the MLC, 2006 as amended.
33 Manus Island class action, Kamasaee v. Commonwealth & Ors (S CI 2014 06770).
Occupational Hazards in the Light of the Maritime Migration Challenge
93