Hours of Rest: Where does the buck stop?

“An Inspector Calls” was a popular morality play written by the English playwright J.B. Priestley at the end of WW II. As Priestley himself remarked about the characters in his play, “They are losing all pride and interest in the job. They are not behaving like good citizens ...”. At the denouement, two of the play’s characters are feeling remorse for their malefactions, while the others face certain punishment as a result of the Inspector’s call.

A recent OnboardOnline article by Shawn Engbrecht was entitled Skullduggery art Sea, Aka 'How to Cook the Books', in which he castigates the yachting industry in general for its lax attitude towards tolerance of falsified work records and concomitant indifference to seafarer fatigue. In other words, we are accused of being as morally decadent and professionally guilty as Priestley’s characters.

Such a sweeping generalization may cause offence to some readers. However, where will you stand when an Inspector calls on your yacht, and that Inspector is a port State control officer, who has in his briefcase a copy of the ILO’s “Guidelines for port State control officers carrying out inspections under the Maritime Labour Convention, 2006” (MLC for short)?

Document reviews

The Inspector may be self-invited, and may arrive at an inconvenient moment, but he cannot be turned away. The inspection would begin with a document review, namely of the ship’s Maritime Labour Certificate and the DMLC. If the documentation is adjudged to be valid and complete, the inspection would come to an end at that point.

However, if the Inspector determines that there are clear grounds to believe that living and working conditions on board do not comply with MLC stipulations, he may proceed to a more detailed inspection. This could be triggered by casual observation, for instance by his noticing that deck crew are engaged in loading provisions into a cold room.

The inspector may request to see their certification in food handling, and if not satisfied then he may start to dig deeper. Or he may be satisfied with the MLC documentation, then switch to ISM mode, and find (as is common) a deficiency regarding regular inspections and certification of lifting equipment, which may then initiate his further scrutiny.

And once our Inspector suspects weakness in any area of regulatory compliance, where will he look to find the weakest spot of all? He will ask to see a line-up of the Usual Suspects – namely samples of records of hours of work or hours of rest. Do the records show periods when maximum hours of work have been exceeded, or minimum hours of rest not taken? Have such irregularities been logged, with explanations, and compensatory time allocated and recorded against each infraction? If so, it may not be too late to show remorse at this stage, if it can be backed up by patent honesty in the record-keeping.

Professional judgment

It could be valid to point to a rarity of infringements and ensuing compensatory action, with the records clearly showing no intent to deceive. The Inspector is entitled to exercise “professional judgment”, and though he may record a non-conformity, he may be satisfied with a verbal assurance of due regard to full compliance in the future, and he may in this instance take no further action.

But what if the hours recorded follow a repetitive pattern and are always exact? Maybe too exact, as intimated by Shawn Engbrecht? Time then for the Inspector to start private interviews with selected crew members, and to compare hours recorded with the posted work schedule for each position on board. Shipping is by nature irregular, so too regular records may arouse suspicion.

An Inspector will know where to probe. He may cross refer between rest or work records, the deck log, the engine room log, daily position reports, ECDIS voyage records, the Oil Record Book, the Official Log Book, arrival and departure checklists, and the SMS procedures for entering and leaving harbours and anchorages. If true hour recording compliance has been observed, there will be no disparities.

Pressure to falsify

But if crew have been pressured into falsifying records, a knowledgeable Inspector will soon spot the inconsistencies. It will then be too late for remorse. The Inspector’s call will end in certain chastisement, which may include a negative report (a major nonconformity) against the yacht in the Paris MOU’s computerized THETIS records, and/or a sharp report to the owner/manager and to Flag, and/or a requirement prior to sailing to introduce approved measures to prevent further occurrences, and/or actual detention, and/or a lawsuit over a disrupted charter, and/or career derailments.

In the past two years two major shipping companies, one in the container trade and one a cruise ship line, entrapped themselves by  maintaining apparently compliant work and rest records, which were exposed as faked when correlated with all other compulsory records. They paid heavy fines among other penalties.

To quote Captain Roger Towner, Registrar General of Shipping and Seamen at Maritime and Coastguard Agency (MCA): "MLC hours of work. No sympathy I'm afraid. If owners (be they tanker operators, cruise ships or yachts) can't normally operate successfully with their crew working 14 hours a day then there is a basic problem with the manning level. The answer may well be to educate owners and guests."

This is reinforced by an April commentary by a member of the ILO Office of Legal Advisors: "The main point is that the 14 hours etc are limits – absolute limits – safeguarding the seafarers’ health and welfare, rather than a right of the shipowner. This is indicated in the Flag State Inspection Guidelines, when they give as one of the contributory factors for fatigue “possibly indicated by hours of work that are consistently at the upper limits”. I think that one would expect the table of shipboard arrangements, which you mention, to normally be well within those limits, so that any extra hours worked up to 14 in any 24 hour period would appear as an extraordinary circumstance".

It cannot be over-emphasized that 14 hours, 7 days  etc. are limits – absolute limits – safeguarding seafarers’ health and welfare, rather than a right of the shipowner. The ILO Flag State Inspection Guidelines give ”hours of work that are consistently at the upper limits” as possibly indicating a contributory factor for fatigue. Over the longer term it may well be expected that the hours of work on the posted work schedule would normally be well within those limits, so that any extra hours worked up to 14 in any 24 hour period would appear as an extraordinary circumstance.

Given the exigencies of charter demands in the yachting situation, occasional 14-hour days may be defensible, but the overall limit of 72-hours in any 7-day period still obtains. (This is discussed further in ensuing paragraphs).

A matter of law

Work or rest records have to be maintained for each crew member, and signed by each crew member and the Master. By signing falsified records, you will have broken the law, and potentially have colluded in disguising a fatigue-inducing regime.

In the event of a contingent incident involving material or personal damage or loss, you may face criminal and/or civil prosecution.

The ever-present potential that an Inspector may call is a deterrent to protect you against such self-injurious behaviour, and instead to encourage your adherence to the precepts of being a “good citizen”. By any definition, a good citizen must abide by strong professional ethics and by the spirit and letter of the Law..

There is a common misconception that hours of work and rest parameters, with their associated inspections, only impinged on yachting with implementation of the MLC. In fact they were embodied in STCW well over a decade ago, and are referred to in the UK MCA Merchant Shipping Regulations 1997. It was much later that MLC, in its role as a document of seafarers’ rights, included under “Conditions of employment” the now-familiar Regulation2.3 – Hours of work and hours of rest, which stipulates the limits for maximum hours of work or minimum hours of rest.

Owners (de facto generally management companies) and yacht crew have several issues to grapple with when complying with this Regulation.

Hours of work

The first issue is the hours of work per se. Although limited to 72 hours in any given seven-day period, this still works out to an average work day of just over ten and a half hours, with a permitted 14 hour maximum on any given day or days. Professional publications such as Nautilus’ “Telegraph” and the Nautical Institute’s “Seaways” regularly carry articles referring to studies on the deleterious effects of fatigue engendered by long hours of work, especially shift work (i.e. watchkeeping).

It is recurrently noted that the seafarer’s recorded 14 hours generally exclude additional time spent on administration and mandatory record keeping.

Comparing seafarers’ hours with those of shore workers, at one end of the spectrum employees on Wall Street and at tech start-ups often work 14-hour-plus days for extended periods, but they do so because their financial emoluments have one or more noughts on the end compared to seafarers’ salaries.

At the other end of the spectrum, a recent “Telegraph” article unfavourably compared the 14 hour day on board ships to the official work day for shore workers in Stalin’s gulag labour camps, where the 14 hours included 1 and ½ hours at each end of the day for tool collecting and return. Other press articles have compared the 10 or 14 hour day for seafarers to the typical day of most office or industrial shore workers, which is closer to 8 hours.

Accordingly, owners and crew need to be cautious about exceeding MLC work limits, as liability for resultant fatigue-related incidents may be traced back to them corporately and/or personally. Even a tip-hungry exhausted deckhand could face liability for knowingly endangering workmates or vessel.

Mathematical anomalies

The next issue is the mathematical anomaly when computing and comparing the two sets of limits, hours of work or hours of rest. For instance, if a seafarer logs 77 hours of rest during a given seven-day period, he/she could presumably work the remaining hours in that seven-day period, right? Not so, because the remaining hours outside the minimum rest hours come to (7x24 = 168) -77 = 91 hours, and the same Regulation caps maximum hours of work at 72 hours. So if 72 hours are worked in the same seven-day period, then 168-72 = 96 hours for rest, which is 5 hours more than the basic entitlement. All of which is somewhat confusing.

The issue of reconciling work or rest limits within a 24-hour period has raised questions as to when such period should begin and end. Should the period be a calendar day, or measured from the end of a rest period, or the end of a work period? The MLC wording in Standard. 2.3.5 is “any 24-hour period”. 

The Inspector may take any random hour on any day, and count backwards or forwards from that point. It is possible that compliance within two consecutive calendar days my still result in non-compliance when the Inspector’s 24-hour template is overlaid on the record sheet so as to overlap the two days.

For self-checking, it should suffice to count from the start of each period of work, since those periods will necessarily be those with the longest work hours or the shortest rest periods. The ITF is reportedly preparing an “app” for the calculation of compliant hours of rest.

Which hours should be recorded?

Which leads to the next issue: which hours should be recorded on any given vessel, hours of work or hours of rest? MLC requires each Member (i.e. your particular Flag State) to fix either the relevant maximum work hours  or minimum number of rest hours for its seafarers.

This should then be referred to in the vessel’s DMLC Parts I and II, along with a model format for recording the appropriate hours. So on this particular issue of which hours to record, and how to record them, responsibility is top down, from Flag to owner/manager to seafarer.

The ensuing issue is what actually is work, what is rest, and is there an in-between state such as stand-by? MLC provides definitions of work and of rest, and guidance for periods on call. However, in practice the definitions may be somewhat squishy. “Short breaks” do not count as hours of rest. Is a 15-minute lunch break during charterers’ water sports a “short break”? The ITF standard agreements set short breaks at 30 minutes.

Consider a hypothetical example of a 30-minute lunch period, followed by unexpected stand-by in the crew mess watching TV while waiting for guests to show up at any moment from a spontaneous visit to a nearby yacht, from which they don’t actually come back for another 2 hours? Is this a legitimate rest period of two and a half hours, to be added to a later rest period of seven and a half hours (meeting the 10 hour minimum), or was it only a “short break” followed by two hours of non-resting on call, even though no work was done? If the lunch break and TV period fell within scheduled hours of work for the seafarers concerned, they may contend that watching TV was “work”.

It could equally well be argued that a “rest period” is one in which the seafarer has been given an opportunity to rest. In the absence of any firm definitions in Flag legislation, there may appear to be occasion here for dispute between crew person and supervisor when it comes to record keeping for that day, which could raise a red flag to a port State control officer during crew interviews.

Schedule of service at sea and in port

MLC Standard 2.3.10 raises a further issue for many yachts. It requires the posting, for each position on board, of the schedule of service at sea and in port, as well hours of work or rest limits. While a yacht with a large crew can more easily define and keep to fixed schedules, the smaller the crew the more difficult it becomes to predict and keep to a schedule during owner and charter cruises.

It is not possible to foresee when a yacht will be on short passages, when it will be moving overnight between Porto Cervo and Corfu, when it will be at anchor for active guests, when it will be in port for extended periods for guests who want to shop till they drop, and so on.

In counterpoint to the issue discussed earlier, regarding the permissibility  of long hours of work of seafarers vis-å-vis shore workers, there is a peculiarity to the yachting sector. Due to the seasonal nature of the industry, with peak activity confined to a few months of the year, the complaint is that our permissible hours of work are often not enough.

If somebody has invested millions of dollars to buy and maintain a yacht, or is spending hundreds of thousands to charter one, then these people want the highest level of service, and to go where they want when they want during their limited time on board. It has long been a point of pride for yacht crew to deliver.

Is there any legitimate way to resolve (i) the requirement to post a work schedule when a yacht’s real schedule is impossible to predict, and (ii) the paradox of the charter yacht’s typical hours of work being too long from one point of view, but too short from another perspective?

Regarding (i) the posted schedule, it would normally be straightforward to state in the schedule the working hours of each crew member during long sea passages, during yard periods, and during layover time in port. The difficulty comes during those times with guests on board. For UK flagged yachts, there is a provision in MSN 1767(M), paragraph 5.2, which reads

“Where it is known that a ship engages in an irregular trading pattern or that working hours are unlikely to be uniform, this can be taken into account and recorded in the schedule”.

The Cayman Islands position is stated in paragraph 4.1 of their Shipping Notice 05/2014, namely: “Due to the nature of service at sea some deviation from the schedule is to be expected, and such deviations will not necessarily indicate non-compliance with the minimum rest periods required.”

So this particular issue can be resolved, at least for MCA and MACI yachts.

Regarding (ii) hours of work and hours of rest, MCA’s MGN 448(M) states in paragraph 3.2 “Following the provision in ILO 180/the MLC, regulation 5 of the 2002 regulations contains a provision for exceptions from the minimum hours of rest provisions to be authorised by the MCA. Such exceptions must be supported by a collective bargaining agreement (CBA )or workforce agreement (CWA), (paragraphs 4.3 to 4.5 of MSN 1767(M)).”

Paragraphs 3.3 to 3.9 expand on these exceptions, and paragraph 3.10 states “N.B. In due course, when the MLC is in force, the exception should  also be recorded in the employer’s Declaration of Maritime Labour Compliance Part II.

Be wary of 'exceptions'

However, the yachting sector should not get too excited about MGN 448(M) “exceptions”. It may at first sight appear to offer busy charter yachts a “Get out of jail free” card by way of a CBA or CWA.

An Appendix to this MGN draws attention to the question of fatigue. And while the MCA indicated in response to a pre-MLC-implementation enquiry from this writer that some limited exceptions to MLC prescriptions would be permitted in exceptional working circumstances, the example quoted by the MCA was the case of harbour tugs, whose work hours depend on the vagaries of tides and irregular shipping schedules.

And although MLC Standard 2.3.7 makes a limited exception to limits for musters and drills, the MCA stance regarding “overriding operational conditions” as justifying an exception from MLC quite clearly renders the whims and demands of yacht owners and charterers as being unacceptable conditions for any “exception”.

The recently reconfirmed Cayman Island position regarding MLC hours of work and rest is categorical – no exceptions, period.

The conclusion is that there is no hiding place from the maximum hours of work or minimum hours of rest for seafarers, as currently mandated under MLC. The limits may at times be inconvenient, but if flouted the long-term repercussions can outweigh any short term advantage from non-compliance.

When the Inspector calls on you the play begins. But the difference is that he will not be following Priestley’s script. Your own “pride and interest in the job” will have directed the script and will determine the outcome of the Inspector’s call.

*Image credits: Flickr/Flazingo photos Flickr/Pat Pilon Flickr/Al Ibrahim Flickr/Mark Strozier