Malta Maritime Law Association
The Malta Maritime Law Association had the pleasure to meet the Malta International Shipowner’s Association ahead of the Malta Shipping Symposium which took place on 30th May.
During such meeting, both parties discussed the industry’s challenges and opportunities and confirmed the intention to collaborate on a common agenda meant to confirm Malta as the Flag of Choice to the Shipping Community.
Appeared in Shipping Law News, 8 August, 2014.
The ever growing number of Malta-flagged vessels is evidence of the robust framework within which the Maltese ship-registry operates, comprising sound legislation and practical procedures which continue to meet best industry standards.
Malta, as a member of the European Union (EU) as of 2004, makes every effort to meet international obligations, attested as of recent by the ratification of the 2006 Maritime Labour Convention (“MLC”) and the transposition of the convention’s provisions into the Laws of Malta by means of the 2013 Rules – the Merchant Shipping, Maritime Labour Convention) Rules applicable primarily to commercial seagoing vessels. In today’s global industry, the protection of seafarers working (and often residing for long periods) on board vessels has progressively become of paramount importance, and is regulated by a number of legislative instruments, not least the aforementioned MLC and other European Union legislation, such as Council Directive 1999/63/EC which puts into effect the 1998
Agreement on Working Time of Seafarers (concluded between the organisations representing management and labour in the maritime sector amongst the EU member-States) which is also applicable to seagoing ships. Effectively, within the European Union the working-time for workers is, to date, primarily regulated by means of the Working Time Directive (2003/88/EC) which sets minimum standards to protect the health and safety of workers.
This Directive is currently transposed into the Laws of Malta by means of Subsidiary Legislation 452/87 entitled the “Organisation of Working Time Regulations” which sets rules on daily rest, breaks, weekly rest, duration of night work amongst other things.
The Working Time Directive also makes reference to transport sectors and to inland waterway transport – however, it has over the years been argued that it does not take the specific working and living conditions of navigational crew members and shipboard personnel engaged on board inland waterway vessels in the sector sufficiently into account. Indeed exceptions to mobile workers working on such vessels are provided for also under the S.L. 452/87.
Thus it has been concluded by the European Commission that more sector-specific rules are necessary, this particularly in light of the fact that working time on board such vessels may vary depending on the way in which work is organised, the operations concerned, the geographical location and the cross-border nature and the length of the particular voyages which may vary from continuous sailing (24/7) to short-term day voyages.
The Commission has concluded that such rules are necessary to balance out the protection of the seafarer’s health and safety, with the reality that many seafarers on such inland waterway vessels must spend consecutive days working and residing on the vessel often with long on-call time – effectively requiring working time which exceeds the maximum times specified in the Working Time Directive. Indeed the Directive 2003/88/EC does allow for a sectoral approach to be taken in certain circumstances, with the possibility for separate provisions to be adapted to the specific needs of different transport sectors, as has occurred in the case of civil aviation, rail transport and general seafarers engaged on commercial sea-going vessels.
Therefore, given the particular needs of the inland waterway industry, in July 2014 the European Commission presented a proposal aimed at setting specific rules on working time for the inland waterway transport sector which would implement a 2012 agreement reached by EU-level representatives of employers and employees in this sector including the European Transport Workers Federation (ETF), the European Barge Union (EBU) and the European Skippers Organisation (ESO).
The agreement sets minimum rules on working time for passenger or cargo transport ships in inland navigation across the EU. Thus, under the proposal for a Directive the European Commission has suggested, amongst other things, that the total working time for such workers would not exceed 48 hours per week, though this could be averaged over up to 12 months and the total night working time would not exceed 42 hours per week. In addition such workers would be entitled to at least four weeks paid annual leave, and to paid annual medical tests, together with an entitlement of at least 10 hours daily rest (with at least six hours uninterrupted) and to at least a total weekly 84 hours of rest.
The proposal may be found on the web portal of the European Commission. Indeed, the impact of such proposed Directive on the Laws of Malta, and in particular on Malta-flagged inland waterway vessels, whether of a passenger or cargo transport nature, is yet to be determined.
Nevertheless, one can expect that such amendments will continue to strengthen the Maltese maritime registry as a reputable flag which on the one hand benefits ship-owners yet without compromising the rights of seafarers.
The Employment Law Department at Fenech & Fenech Advocates continues to monitor this area of law and is available to assist you with any query relating to labour law and seafaring. Source: Fenech & Fenech Advocates.
First appeared, Times of Malta, Sunday, May 15, 2011. Author: Alison Vassallo .
The carriage of passengers on board commercial vessels out of a high risk zone is not to be entered into blindly or without a clear awareness of the legal intricacies involved. Beneath the great humanitarian concerns underlying the evacuations from Libya over the past weeks lies a steadily turning commercial cogwheel that few may be aware of.
By April 25, 615,939 people had fled violence in Libya by road, sea or air. Numerous shipping companies reacted to the crisis by operating round-trip charters between Benghazi and war-torn Misurata and Crete and Malta, mainly at the request of governments in Europe, Latin America, and the Far East. The crisis poses tragic humanitarian and socio-political implications but it also presents organisations with the requisite resources and expertise with a commercial reality. Were it not for these operators, tens of thousands of people would still be stuck in a war zone and the humanitarian consequences would potentially be more severe.
Malta’s geographical positioning has attracted a number of people to the realm of chartering vessels for evacuation. From a shipping perspective, the carriage of passengers on board commercial vessels out of a high risk zone may present a delicate legal scenario. This operation is certainly not one to be entered into blindly or without a clear awareness of the legal intricacies involved. The reality is that there is no standard form contract which caters for the carriage of passengers in such a particular scenario.
In contracting a voyage charter party for the carriage of goods, the parties would, in the normal course of events, resort to the terms of standard form contracts, most notably Gencon 1994. These contracts do not, by their nature, contemplate the carriage of people. The charter of a vessel for the carriage of passengers as opposed to cargo for a trip or a series of trips is the subject of a number of standard form agreements formulated by the international shipping community, namely the Bimco Cruisevoy and the Mediterranean Yacht Brokers Association Charter Agreement.
However, these contracts fall short of addressing the specific circumstances faced in the evacuation of people: they contemplate the carriage of passengers on board leisure vessels such as cruise liners and superyachts. This leads to the necessity of formulating what would essentially be an ad hoc agreement between the owner and the charterer. One of the main considerations which must be addressed by the parties at a very initial stage in their negotiations relates to whether the voyage charter party will be a berth charter party or a port charter party. In the case of a berth charter party, the vessel would be considered an arrived ship, and therefore ready to take on passengers upon its arrival at a designated berth.
In such a case, laytime (the time allowed to the charterer to load and discharge passengers) which is included in the lump sum freight, would start to run only on the ship’s arrival at a particular berth. This would obviously disadvantage the owner since any time spent outside the berth due to the inability of the vessel to berth – especially in scenarios like the evacuation of passengers from a high risk zone – would be at the owner’s expense. Alternatively, the voyage charter party can be designated as a port charter party.
In this case the vessel is deemed to be an arrived ship as soon as she is considered as having arrived at the ‘port’ which could be the anchorage. As opposed to a berth charter party, this is to the owner’s advantage and to the charterer’s disadvantage. Laytime would start to run as soon as the vessel is deemed to have arrived at the port and not necessarily at the berth – ultimately irrespective of whether the passengers are being loaded or discharged from the vessel. Both the laytime allowed for the charterer to load and discharge passengers and the rate at which demurrage (the pre-agreed rate of liquidated damages) will be charged by the owner once the laytime is exceeded, are to be clearly expressed in the agreement.
These are just some of the important considerations which people who may be unfamiliar with in this sector would not even contemplate when entering into charter parties in emergency scenarios. It is crucial that specialised professional legal advice is sought before a contract is finalised. This can go a long way in preventing a hastily approached business venture which can turn to litigation once the immediate urgency has died down or, even worse, lead to complex legal wrangling during the actual running of the contract.
These negative effects increase in gravity in scenarios where the consequences of a failed contract may stretch beyond the legal and commercial and touch human lives.
Dr Vassallo is an associate within the Litigation department at Fenech and Fenech Advocates.