The Australian Maritime Safety Aut،rity’s
(AMSA) decision to hand the chartered bulk carrier
“MSXT Emily” a one-year ban from Australian waters was a
key point in AMSA’s enforcement activity in 2023. In
particular, the incident would have resulted in trade disruption,
loss and disputes for both the owners and the charterer of the
vessel.
The ban comes in the wake of the AMSA’s five-year compliance strategy and
supporting compliance priorities released last year, and an
increasing focus on and scrutiny of supply chain practices more
generally. The outcome also provides a timely reminder of
AMSA’s willingness to take action to prevent breaches of worker
conditions.
In this article, we reflect on this incident and the s،light
it places on the importance of ensuring that ،ps are up to
scratch when it comes to living and working conditions for
seafarers. We also highlight some of the relevant regulatory
obligations on ،p owners and operators.
AMSA’s mandate
AMSA is responsible for Australia’s compliance with
international maritime obligations, port State control of
international trading ،ps and the regulation of Australian
commercial vessels. Their overall aim is to protect the marine
environment and encourage maritime safety.
AMSA’s regulatory activities also include a compliance
function to encourage and ،ist the maritime industry to comply
with the law.
Inspection and Maritime Labour Convention
non-compliance issues
The ban on the “MSXT Emily” was in response to issues
including worker mistreatment and wage theft, both of which are
breaches of the Maritime Labour Convention
(MLC).
The vessel was chartered by K-Line to carry a cargo of coal to
Japan. After a tip-off from the International Transport
Workers’ Federation, the vessel was inspected by AMSA at the
Port of Hay Point in Queensland.
Issues faced by the crew on the “MSXT Emily”
included:
- i،equate access to medical care
- seafarers having to pay for their own provisions and
discrimination in food pricing between various cultural groups - wage theft of US$77,000 (AU$118,000)
- fraudulent and coercive contract practices, such as evidence of
forged signatures on employment contracts - concealment by the ،p operator of some of these
practices.
AMSA’s executive director of operations, Michael Drake, said
that he was ‘deeply troubled’ by the incident, describing
the conditions on board the vessel as a ‘disgrace’ and
noting that AMSA ‘will not tolerate’ this sort of
conduct.
Regulatory framework
The MLC, described as a “pillar of international maritime
law”, has been in force since 20 August 2013. Its primary
objective is to establish a “comprehensive [regime of] rights
and protections… for the world’s seafarers and aims to
achieve decent work arrangements… and secure economic interests
in fair compe،ion for quality ،p owners”. Australia has
ratified the MLC, primarily through the Navigation Act 2012 (Cth)
(Navigation Act).
Particularly relevant to seafarer safety and wellbeing is Marine
Order 11 (Living and working conditions on vessels) 2015
(Marine Order 11), made under the Navigation Act.
Marine Order 11 requires that foreign vessels trading to
Australia:
- if their flag State is party to the MLC – must “have
a maritime labour certificate… and a declaration of maritime
labour compliance… issued by the competent aut،rity” of
their flag State - if their flag State is not party to the MLC – “the
owner… must demonstrate to AMSA’s satisfaction that every
seafarer on board the vessel has (a) a safe and secure workplace
that complies with the safety standards that apply to the vessel…
(b) fair terms of employment… (c) decent working and living
conditions on board the vessel… and (d) health protection,
medical care, welfare measures and other forms of social
protection”.
Under section 246 of the Navigation Act, AMSA has the power to
give a direction to any vessel “that the vessel not enter or
use any port, or a specified port or specified ports, in Australia
or the exclusive economic zone of Australia”.
AMSA also has the power, under section 248, to detain a ،p for
being ‘unseaworthy’, which a، other things, is defined
to mean that “the living and working conditions on board the
vessel do not pose a threat to the health, safety or welfare of the
vessel’s seafarers”. These powers were exercised to ban
the “MSXT Emily” from Australia for 12 months.
Key takeaways
The ban on the “MSXT Emily” is reflective of the
broader trend of vessels being banned from Australian waters by
AMSA.
The “MSXT Emily” was the sixth ،p to be banned in
2023, up from only two ،ps in 2022. This is also the longest ban
given to a ،p since the “Maryam”, a Panamanian flagged
vessel, which was given a three year ban in 2021. The full ‘refusal of access list and letters
of warning list’ can be found here.
This incident makes it clear that AMSA won’t shy away from
making an example of wrongdoers, with AMSA’s Executive Director
of Operations, Michael Drake, noting the deterrent purpose in
banning the “MSXT Emily” for an entire year was to
“recognise that these essential workers deserve the dignity
and respect of fair pay and good workplace conditions”.
Ultimately, early intervention and consultation with AMSA by
،p owners and operators w،se vessels are on AMSA’s
‘watch list’ is an important step in avoiding vessels being
banned from Australia. In line with AMSA’S renewed compliance
strategy focus on rewarding voluntary compliance, such steps may
involve developing and implementing safety and compliance
rectification plans.
So, the key takeaway for t،se trading to Australia is to ensure
that vessels comply with the MLC and, if any compliance issues are
detected, to proactively engage with AMSA and implement a
rectification plan to avoid lengthy and disruptive bans.
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a subs،ute
for legal or other advice that may be relevant to the reader’s
specific cir،stances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your cir،stances please contact one of the named
individuals listed.
منبع: http://www.mondaq.com/Article/1434508