Source: The Hindu
Lack of a standard operating procedure for crew change at foreign ports, a stumbling block
Synergy booked a 60-seater plane to repatriate the crew, mostly from Tamil Nadu and Kerala, who have spent 8-9 months at sea. The master and 21 other crew had signed off from the now sold vessel ‘Jal Anant’ at Gulfhavn port in Denmark.
To utilise capacity fully, Synergy even offered 40 seats for free to Indian nationals looking to return from Denmark. “We are still waiting for the Indian government to give us landing permission,” said Captain Rajesh Unni, CEO, Synergy Marine Group.
The delay is one of the many instances that demonstrate the confusion and apathy of the government in facilitating crew change of Indian seafarers at foreign ports after the pandemic outbreak.
Chartered flights given the green signal
The Ministry of Home Affairs has allowed chartered flights to take off and land in India with crew. MMS Maritime (India) Pvt Ltd operated a chartered flight from Bengaluru to Colombo to facilitate the movement of Indian seafarers seeking employment opportunities in South Korea.
Italian cruise operator Costa Crociere S.p.A. operated three chartered flights to Goa earlier this week to repatriate 414 seafarers from that state.
“No fresh charter flight permission was given to shipping companies this week,” Sanjay Prashar, a member of India’s National Shipping Board, said while expressing “absolute disappointment” with the government.
There is no cost to the government for chartered flights arranged by shipping companies for transporting seafarers. Unable to understand the delay, Prashar said.
“Seafarers on a ship have a right to return home. Seafarers at home, can’t work from home; they need to be on a ship. It’s simple, yet the government makes it complex. Why keep seafarers under lockdown if they are essential workers,” he said.
“Ships have a schedule,” he said, while urging the government to keep timelines for approvals.
Seafarers on edge
The forced stoppage of crew changeover due to Covid-19 has attracted the ire of Indian seafarers, at a time when tens of thousands of workers are losing jobs in other industries/ sectors in the country. But, ships continue to need crew to transport essential commodities, providing job opportunities to seafarers staying home for months, waiting for their next assignment.
With no clear indication as to when international flights will start and no standard operating procedures (SOP) for crew change at foreign ports, the seafaring community is on the edge.
What has annoyed Indian seafarers even more is the fact that Filipinos, Sri Lankans and even Burmese, some of whom are not even qualified to man large ships such as very large crude carriers, are flying to join ships as fleet owners/ managers are keen to hire crew who are easily available to keep their ships operational.
“Due to current policies and no positive action, thousands of Indian seafarers sitting at home are on the verge of losing jobs and our well-earned reputation,” said a seafarer.” If no action is taken swiftly, Indian seafarers will be history in the shipping industry,” he said, adding that Singapore has allowed crew change from May 22.
Seafarers, on their part, say they are ready to endure pain and inconvenience, travel thousands of kilometres by road, observe quarantine before joining a ship in keeping with the rules, all just to relieve their burnt-out colleagues working on extended contracts.
For those looking to get off their ships and return home, the agony is piling up.
A voyage from the US to China, takes some 52 days. “That’s how long before we call a port for crew change. The delay in releasing the SOP for crew change at foreign ports just prolongs the agony. Seafaring nations such as China and the Philippines are way ahead in facilitating crew change,” said another seafarer, prodding the government to “move fast” on the issue.
As the government fumbles on finalising an SOP for crew change of Indian seafarers at foreign ports, cargo-laden ships are diverting to India en-route to destinations, just to carry out crew change for which an SOP is already in place.
Three Singapore flagged LPG tankers, Pyxis Alfa, Shahrastani and Shaamit as well as the Singapore-flagged ore carrier PSU Seventh are deviating to India over the next few days to sign off crew.
“All these diversions are happening because some owners are concerned about their ships and crew and not because of ship managers. Ship managers are just taking the credit,” said a shipping industry executive.
In fact, some ship managers are “trying to pressure seafarers against raising their voice for deviation”, threatening not to deviate even when the ship owner has given the go-ahead for deviation, he said. “Ship managers, with a few exceptions, are more of a road-block for crew change, he added.
Ship managers, on their part, have blamed the high cost of crew change in India, as a stumbling block.
“When they talk of high costs, they should also talk about the millions of dollars saved during the last three months when no crew change happened,” he said.
There is another reason for such urgency on the part of fleet owners to deviate their ships for crew change.
On May 5, the International Maritime Organization (IMO) circulated a framework of protocols to 174 member states, to ensure safe ship crew changes and travel during the coronavirus pandemic.
On May 13, the International Transport Workers’ Federation (ITF) and the International Maritime Employers’ Council gave governments time until June 15 to repatriate crew working beyond their stipulated contract time, by following the IMO guidelines.
The key question facing the shipping industry now is what will happen if India does not re-start international flights by June 15, when the one-month deadline set by the unions to resume crew change ends.
“Even assuming that flights resume, it will be limited and difficult to get seats,” he said.
Port Denials: What are States’ International Obligations?
It’s a truism to say that COVID-19 has taken the whole world aback. Two months and a fortnight after the World Health Organization (WHO) declared the spread of the virus to be a public health emergency of international concern (or PHEIC), the maritime world is still at particular dismay, as it has to face a large array of port restrictions and denials of disembarkation and embarkation. These restrictions apply to cruise ships, but also to the merchant fleet more generally. In some cases, even the Navy or ships on government service were denied docking, on account of suspected cases of COVID on board. These measures put a heavy burden on shipowners and ship operators, but also on the crew, doomed to remain on board way beyond the maximum duration of service periods, with no clear perspective of repatriation. In the medium term, it is international trade, 90 percent of which is maritime, which will be dramatically disrupted. Yet, the continuity of maritime logistics is essential to most countries supply, including for essential commodities (energy, chemicals, food, consumables including health products).
Free pratique, non-discrimination and distress in the time of COVID
By virtue of their territorial sovereignty, States may freely regulate access to their ports (Article 25.2 of the United Nations Convention on the Law of the Sea). Yet, this principle must be interpreted in light of several international obligations.
The International Health Regulations (IHR 2005) are the legal instrument adopted to provide a public health response to the international spread of disease. IHR are binding upon all the 194 States member of the WHO. Their purpose is to respond to sanitary emergencies “in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic” (Art. 2 of the IHR). In relation to maritime transport, the principle adopted by this text is that of free pratique, meaning the “permission for a ship to enter a port, embark or disembark, discharge or load cargo or stores” (Art. 1 of the IHR). Furthermore, Article 28.1 states that “a ship or an aircraft shall not be prevented for public health reasons from calling at any point of entry”. Article 28.2 specifies that a ship shall not be denied the embarkation and disembarkation of passengers either.
Even if they have no general obligation to open their ports to foreign ships, States parties to the 1923 Convention on the International Regime of Maritime Ports have also undertaken to treat equally the ships of all States, including their own (art.2). It is true that the 1923 Convention has not been widely ratified, but the principle of non-discrimination is equally recalled by the 1965 IMO Convention on Facilitation of International Maritime Traffic, specifically in relation to sanitary measures and health formalities (Art. 4.7 of the Annex to the FAL Convention; also Art. 42 of the IHR).
States must allow disembarkation in the event of a medical emergency on board (Art. 2.17-2.24 of the Annex to the FAL Convention). If humanitarian evacuation is not granted, shipmasters may invoke distress as the ultima ratio to get permission to dock (Art. 28.6 of the IHR). However, even if distress may be a credible legal justification, it is far from ensuring an automatic right of entry. States can still appreciate which are the most appropriate means, short of access to ports, to respond to the medical emergency.
Maritime transport freedoms and public health protection – which balance?
All these international regulations allow States to adopt more restrictive measures in case of an epidemic outburst. For instance, Article 43 of the IHR provides that, in cases of PHEIC, States can go beyond the recommendations adopted by the relevant international organizations. But even then, States do not enjoy unfettered discretion and must comply with three requirements. Firstly, such measures “shall not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives” (Art 43.1). This is the principle of reasonableness. Secondly, States must rely on scientific studies or WHO recommendations to justify these measures (Art.43.2). This is the principle of objective necessity and proportionality. Thirdly, they must convey these justifications to the WHO (Art 43.3). This is a corollary of the obligation of international cooperation, based on notification and sharing of information. The organization may hence request its members to “reconsider the application of the measures” (Art. 43.4).
To say that States do not really comply with these requirements would be an euphemism. In practice, they have adopted variously restrictive measures which range from: – indiscriminate prohibitions on access to ports (hardly compatible with the principles of reasonableness and necessity); – to measures discriminating between ships on account of their nationality (which is not permissible); – and to more detailed bans, based on objective considerations, like previous calls in infected areas. A more appropriate approach is specifically based on the health situation on the ship, assessed after appropriate testing. But very few States adopted it.
Yet, relevant international organizations have adopted recommendations to cope with the crisis. On February 13, 2020, the IMO and WHO adopted a joint statement insisting on the necessity to avoid severe disruption of maritime traffic. Since then, the IMO published several circular letters, providing guidance for States to reconcile public health concerns and the continuation of maritime activities. They call for cooperation between flag State authorities, port State authorities and control regimes, companies and shipmasters in order to guarantee the rights for everyone in this health crisis. In the event that the port State denies access, other interested parties, including the flag State, should be approached. They may be called upon to provide medical equipment and prompt medical care on board the ship. Some States have made efforts to repatriate their nationals stuck on board of infected ships (mainly passengers coming from wealthy countries).
Seafarers, the forgotten essential workers
If the repatriation of tourists is well-advanced, the situation of the seafarers (who in their great majority come from developing countries) has hardly begun to be addressed. Yet, under the 2006 Maritime Labour Convention (Rule 2.5), seafarers have a right to repatriation or to be granted a safe stay in the country of disembarkation. It is the obligation of the shipowners to cover the related expenses. But it is the responsibility of the flag State to ensure that seafarers rights are respected. Unfortunately, the flag States, especially the flags of convenience, demonstrate a guilty passivity. Facing unprecedented restrictions from port States, deprived of the protection of the flag state and that of their national State, many seafarers are simply blocked at sea. Seafarers’ unions have sounded the alarm. On March 17, the International Transport Workers’ Federation thus pointed out “the failure of flag states to protect seafarers’ and passenger’s health during this humanitarian crisis”.
On March 31, the ILO also expressed its grave concern with the effects of these measures on seafarers and international trade. IMO also urged States to ensure access to ports for disembarkation, crew changeovers, resupply, repairs, but also to take measures to ensure health protection in ports. Adequate testing, medical assistance and quarantine facilities are essential to the continuation of maritime activities. So far, little echo has been given to these recommendations.
Wanted: international cooperation in the context of an exceptional crisis
Some shy signs of hope seem to take shape in the European Union. On April 8, 2020, the European Commission adopted Guidelines on protection of health, repatriation and travel arrangements for seafarers, passengers and other persons on board ships. They aim at ensuring the continuity of maritime transport, while providing principles and mechanisms to respond to the humanitarian and sanitary crises. The creation of a network of designated ports in which embarkation and disembarkation are made possible and safe is central to the EC’s proposals. It remains to be seen whether there will be a follow-up from Member States.
Multilateral cooperation has been most mistreated and yet is desperately needed in this crisis. The common answer is the only sustainable answer to it. When a pessimist says “things cannot get worse”, the optimist answers “yes, they can.” In the face of COVID-19, let’s be pessimistic for once!
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