MLC 2006, Malaysian Airlines Flight MH17, and You

There would seem to be no connection whatsoever between the three items in the headline.

MLC 2006 is a single piece of legislation which replaced a large number of pre-existing regulations pertaining to the rights and duties of seafarers and their employers.

This combination into a single Code will have a long-term  game-changing effect in two ways.

First, whereas few seafarers had ever heard of any of the previous laws, instruments, directives, or whatever, everybody has heard of MLC 2006, not least because there is a burden on owners, managers, captains and crew agents to tell them about it. Second, the Code came with an enforcement mechanism, and many crew are already familiar with flag and port state audits in relation to MLC compliance.

The upshot is that yacht crew have a new and broad awareness of their rights and protections. Armed with this knowledge, they may seek compensation for any perceived violations of such rights.

It is almost a year since implementation of MLC 2006, but many of its implications have yet to be realized. For example, Article IV.1 states “Every seafarer has the right to a safe and secure workplace that complies with safety standards”. How many of us have given any consideration to where the boundaries of the workplace may lie, in relation to MLC?

No flag jurisdiction has seen fit to ban its vessels (workplaces) from visiting or transiting unsafe areas such as off the Horn of Africa or the Straits of Malacca. Further, MLC 2006 does not specifically address the issue of a continuance of an implied or expressed duty of care towards a seafarer while travelling to join a ship, or when paying off. So do these omissions by flag and MLC relieve owners, and/or their managers and agents, of certain aspects of duty of care within the workplace? The following discussion seeks to answer this.

The issue of an employer’s duty of care towards employees during travel to, through and within unsafe areas was thoughtfully and thoroughly addressed in a 2012 report entitled “Duty of Care: Are You Covered?”, which was issued by iJet, a corporate risk management company. The report makes clear that it is a general principle across many jurisdictions that risk assessment is an essential part of the exercise of a duty of care. Further, if there is a factor relating to the risk assessment which the responsible person could have known about, then the presumption is that he/she should have known about it. The reality has often been that in many cases this is not much more than an academic issue. For instance, in our industry crew fly in and out to join or depart from yachts, and if they get stuck or delayed somewhere the yacht picks up the hotel and food bills and nobody thinks any more deeply about it.

The events of the past week, since the downing of MH17 over Eastern Ukraine, have changed that relaxed approach forever. There will be many lawsuits, and massive claims for compensation, ensuing from the MH 17 incident (along with others relating to the missing flight MH370 over the Indian Ocean, then TransAsia flight GE222 near Taiwan, and most recently flight AH5017 in Mali).

But the game changer will be flight MH17. Legal experts are already  positioning themselves while waiting for the initial wave of public emotional reaction to subside and real data to emerge. You can go online at this instant and sign up to join the queue for compensation. Putin is the target for one particular group of US compensation lawyers. They may have difficulty in nailing him, which does not seem to be deterring them: they know that there are plenty of other duty-of-care soft targets to go after regarding this episode. Other law firms are not specifying targets, it’s just a case of “sign up here and we’ll get you some money”. In the not-too-distant future, some of the travel organizers for MH17 victims will be challenged in courts about their due diligence regarding what they could or should have known about that aircraft’s route, a matter previously of little or no concern to anybody except pilots and the airline accountants who monitor fuel costs.

We would hope for no similar tragic accidents involving our yachting colleagues, but it is certain that some of them will be involved in incidents which will cause them mental or emotional trauma arising from inconvenient, or injurious, or even disabling, episodes while travelling on company business. Even leave travel, if the company provides a seafarer’s ticket for leave which has been contractually earned under MLC 2006, may be regarded as company business.

You ask - so what? The “so what” is that if you are a captain, or a purser, or a manager, or an owner’s representative, or a crew agent, you are now playing a new game with new responsibilities towards seafarers who are sheltered under the MLC 2006 umbrella. Mission-creep for compensation lawyers will now push the boundaries of the “workplace" to just about anywhere that an employee may be deemed to be “working” or “at work”. And within the extended workplace there will always be somebody who is an employee’s supervisor, who will have responsibilities towards the employee. These responsibilities may be susceptible to being converted into liabilities, corporate or personal.

Are you confident that you would have no conceivable liability for what happens to a travelling seafarer under circumstances apparently beyond your control? Well watch what happens over the next 12 months and beyond, when individuals with distant connections to the MH17 episode face cross-questioning.

They will doubtless assert in their own defence that they were seven times removed from placing an employee on that flight, that altitude and routing choices were a concern only for air traffic controllers and not a due diligence matter requiring pre-travel investigation by corporate personnel. Opposing counsel is going to chew up those arguments and spit them out in small pieces. “May the court see copies of all documents pertaining to safe oversight of your travelling employees? Minutes of safety meetings discussing the topic? Guidelines? Standard procedures for the employees in transit? Matrices for due diligence research into the safety of proposed travel?  Reporting ladder of responsibilities and approvals? “

Duty of care; due diligence; joint and several liability; the deep pockets syndrome: these four ingredients will combine in a soup of public sympathy for the victims and outrage towards anybody and everybody who can be held remotely responsible for the disaster. Shocked parties who were even eight times removed from placing employees on flight MH17 may find themselves nailed to the wall and their pockets emptied. Even if they escape paying damages, defence costs can be ruinous.

Scaremongering? Nothing for you to worry about? First Google the four ingredients referred to in the above paragraph. Then look at what MLC 2006 says about a safe workplace. Then ask yourself if you belong to any organization which provides legal defence for its members in the event of suit by an aggrieved party. Consider this: in 2006 a New York Times correspondent survived a mid-air collision over Brazil, in which many people died. He later wrote an article in which he criticized the actions of the Brazilian air traffic controllers on duty at that time. He was subsequently sued by the widow of a victim on the grounds that he had impugned her personal dignity by defaming the Brazilian people. How many times was that journalist removed from direct responsibility for the widow’s original emotional trauma over the loss of her husband in an air crash?

To reiterate – the game has just changed. There is no hiding place. If you have any level of responsibility for crew travel, then today is not too soon to start writing new travel policies, both in-house at the company office, and for on-board insertion into the SMS manuals.

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About the Author:

Rod Hatch got bored with the academic world after 3 years as a Lecturer in Economics at a London Polytechnic, and ran away to sea for a year as deckhand in a 100' motor yacht. His yachting career has now spanned 45 years (including six years in commercial shipping) and he was one of the last few dinosaurs to be certificated in the UK as Master of a Home Trade Passenger Ship. Current special interests: MLC, 2006; and advocacy of CPD opportunities for yacht crew outside of their mandatory training courses.

Image credits:
flickr/Allan Watkin (via CC 2.0)
flickr/wfmz.com (CC 2.0)
Shutterstock/Gusavo Frazao
Shutterstock/IQoncept