To answer this question, I will examine the underlying principle of the terms; labour is not a commodity, in its context and in the light of its object and purpose. Considering the broadness of the topic and for the purpose of this commentary, I would narrow the discussion to tackle labour in the context of globalisation with regards the seafaring industry under the caption of decent work for seafarers.
Why? Because this is the industry I know more than any other, having commenced my career as a trainee sea pilot about fifteen years ago with the Gambia Ports Authority. With the help of providence and as a freelance writer, I would not do justice without writing about the industry I am most passionate about.
In a broad sense, the rights of seafarers as workers include their right to fair wages and benefits for their services, safe and healthy living and working conditions etc. Several abuses to these rights are reported in contravention of ILO’s decent work standards. Of all the relevant instruments covered within the Abuja MOU Port State Control regime, of which The Gambia is part, SOLAS still ranks the highest with 33.7% of all deficiencies recorded. Safety of navigation and fire safety account for 40 each (6.57%); MARPOL 35 (5.75%); life-saving appliances 37 (6.08%); and MLC 2006, 31 (5.1%). The majority of SOLAS deficiencies in 2014 were in the areas of safety of navigation, followed by fire safety measures, life-saving appliances, emergency system and radio communications respectively which together constitute 25.1 per cent of the total deficiencies.
Traditionally, ships were crewed, owned and flagged locally, even though they were operated internationally. Following a sea career, a mariner would move ashore to assume a career as a sea pilot or a harbour master. A seafarer going to sea in the 1970s was assured of fair treatment, adequate wages and tenure of employment among other things. Following the oil crisis of the 1970s, there were surplus ships that led to the frantic drive to cut costs. Ship owners responded by registering their ships with Open Registries so as to reduce costs and maintain competitiveness, while escaping from the strict shipping unions of their national registries. For example, US ships owners’ resorted to using Liberian registry to avoid the provisions of the Jones Act. The changes created a global market for the supply of seafarers with the major determinant being the price of labour.
In 1995, for instance, Japanese Able-Seamen received US $ 9349, which is 41 times more than a Bangladeshi Abled-Seaman, who received US $227. This cost imperative has led many ship operators to seek ‘commercial advantage by evading international safety regulations and labour standards, according to the International Commission on Shipping (ICS). The nationality link is overshadowed by the genuine link concept of UNCLOS Article 91; which definition remains discretionary among major maritime States.
Why Seafarers Go To Sea?
The seafaring profession is synonymous with hardship and danger. The environment involves noise, vibration, heat etc. Seafaring is one of the most hazardous occupations according to Roberts, 2002. Mr. Crescensio M. Siddayao, ex-head of the National Seamen Board of the Philippines summed up the seafaring employment when he said:
‘Seafarers’ employment is unique in the sense that employment abroad ocean going ships inevitably subject the workers to rigorous isolation and confinement. The ship is not only a place of work for him, but also a home. He lives a regimented life throughout the employment period-at work or off duty. He is all times subject to the command or whims of the master of the ship. Also, he is at the mercy of the perils and dangers of the high seas.’
Employment agencies & manning agents
Seafarers from many developing nations are employed on voyage-by-voyage basis which may last anywhere from three to twelve months or more. Lack of tenure by such contractual signings creates uncertainty and insecurity and makes seafarers susceptible to coercion, pressures and abuse from certain manning agencies. The International Commission On Shipping (ICS), reports recruits being compelled to pay hiring fees in excess of a month’s salary to manning agents in order to obtain a job.
An inquiry into certain manning agencies identified many as the major players in treating seafarers as commodities. Sometimes, even after obtaining a job through these agencies, seafarers have to contend with many challenges. ‘In several cases, seafarers receive lower benefits than what is stated in their contracts; either that, or they have to go through a lot of sacrifices to get what is due to them,’ according to Opiniano, as cited in Binghay. V., p165).
Against this backdrop is the trend of blacklisting seafarers who demand their rights or contact a union official about their unfair treatment. Blacklisting is done by circulating the names of seafarers among manning agencies thus preventing the seafarer from being employed on other ships in contravention of ILO no. 179.
Labor conditions at sea
Dated Standards Of Training, Certification And Watching (STCW 95) provisions make it acceptable for a seafarers to work for 98 hours a week, whereas ILO 180 accepts 72 work hours per week. In comparison with the civil aviation industry, the International Civil Aviation Organization (ICAO) has limited to 70 and 100 hours of flight time per month for pilots. According to a report by the US Maritime and Coastguard Agency (MCA) in 2006, out of 1,800 seafarers that were interviewed, almost half had more than 85 working hours per week.
Seafarers see themselves working disapportionate hours without enough ‘recuperative rest’ according to recent research due to reasons such as reduced manning levels at sea, increased turnaround times, increase use of technology, short sea passages, bad weather and traffic conditions at sea. These cause fatigue, impair the performance of seafarers and ultimately lead to damage to the marine environment, ill health and reduce the life span of the highly skilled seafarers according to the same study. The Japanese Maritime Research Institute (JMRI) attributes the fatigue element with almost 53% of marine casualties such as collision and stranding at sea.
Many seafarers also underreport their hours of work by falsifying documents because of ignorance of the fatigue factor as well as economic imperatives such as fear of cessation of their contracts. A deck officer reports that: ‘even if a duty officer says I cannot do it, the company will within 24 hours say ok, I will find somebody who can’ (Deck officer). (Smith A., 2008, Proceedings of International Symposium on Maritime Safety, Security and Environmental Protection. Athens. p.12). Other well documented anecdotal reports of fatigue can be obtained from the Nautical Institute, Fatigue Reports. (Priority is linked to safety at work and other pertinent rights by the new Maritime Labor Convention (MLC 2006)).
Criminalization of seafarers
Criminalization of seafarers in the case of seafarers going about their normal professional duties is distinct from their arrests when they have broken the law of a particular State/jurisdiction. High profile cases of arrests of seafarers beginning with Captain Hazelwood of Exxon Valdez and others such as the Prestige, Tasman Spirit and Heidi Spirit cases have brought the issue of criminalization of seafarers into the forefront of international news. To criminalize someone is to treat them like a criminal-point blank! Seafarers according to the aforementioned cases, are increasingly used as scapegoats and persecuted in the case of marine accidents.
The unique case of seafarers means that they are mostly non nationals of the country where the casualty has taken place/occurred. The practiced unfair approach is for prosecuting authorities to detain suspect seafarers until they are proven innocent, according to Mallach, E. 2008 in his book, The Fair Treatment of Seafarers. In the case of the oil tanker, Prestige, which experienced difficulties in Spanish waters, the request by the Greek Captain of the vessel, Captain Mangoras to bring the ship into the port was denied by the Spanish authorities. This, mind you, was a 26 year old ship requiring special attention due to its inherent risks. Following a heavy storm, the ship was broken and its oil cargo released, which caused severe pollution, leaving 800km of Spanish beaches affected by the oil spill, plus impact on French coasts. Following the oil spill, the Greek Captain was held captive for 2 years in Spain, only to be released in March 2005.
The predicament of the seafarer is worsened by the promulgation of new laws and/or the interpretation of existing laws to criminalize certain acts, e.g. the EU Directive on Ship Sourced Pollution criminalizes pollution caused unintentionally under the vague concept of ‘serious negligence’. This of course, fails to safeguard the rights of seafarers caught up in incidents of marine pollution.
Incident to criminalization is the neglect of seafarers by notably, Flags of Convenience, FOCs, who are notorious for failing to pursue the rights of seafarers under their flags.
Abandonment of seafarers
Abandonment occurs where seafarers are left to fend for themselves in ports that are far from their homes without paying for their wages, bunkers, victuals, costs of repatriation and other legal claims. This occurs either due to the ship owners having financial problems or where they prefer to maximize profits by refusing to pay their bills, especially in the case of older ships, towards the end of their sea life, where the bills are worth more than the ship.
This trend is observed in the shipping industry when the freight rates drop and many shipping companies find it difficult to stay in business (ITF Seafarers). According to Mrs. Cleopatra Doumbia-Henry, ILO Director Sectoral Activities (2004), who is now the head of the World Maritime University, between January to November 2003 alone, there were thirty one cases of seafarers’ abandonment in which one seafarers died during abandonment. Most of the abandoned ships are registered under FOCs and due to the corporate veil afforded by the FOC system, those criminally responsible owners are able to escape their liabilities.
Denial of shore leave
A seafarer is entitled to shore leave in the course of his voyage at Port stops in line with decent living and working conditions. This is outlined in the MLC 2006. Regulation 2.4. States, ‘seafarers shall be granted shore leave consistent with their health and well being and with the operational requirements of their positions.’ It is common practice among states in recent times to prohibit shore leave to seafarers on account of their being perceived as security risks. Seafarers are therefore required to have a visa before they can be allowed shore leave.
A case is reported where the ship owner was heavily fined when the crew who was denied shore leave stepped on the wharf of the Port state; one, to pick perishable goods dumped on the wharf and the other, to connect the fresh water hose from the shore. Denial of shore leave to seafarers who have spent weeks and sometimes months at sea is by any standard a violation of basic human rights and dignity.
In conclusion, the shipping industry engages the labor of human beings, i.e. Seafarers. Equating labor to a commodity is to equate labor to capital or goods or services, i.e. Factors of Production. The statement, labor is not a commodity thus alludes to the fact that the term commodity as used in the phrase refers to a connation different to its classic meaning.
Yet, it is well to say that in the seafaring industry, the dignity of work is increasingly unrecognized with the prevailing orientation on competiveness and profit maximization. The labor of seafarers is progressively likened to a contract of employment with the sole regulator of the relation being the law of the market, i.e. Market Forces. In effect, the labor of seafarers is increasingly perceived and treated as just another factor of production, without consideration to the seafarer’s individual needs.
Labor conditions at sea to this day, include overwork and fatigue. In the context of the global dimension of shipping, there is growing evidence of exploitation and dehumanization of seafarers in various forms; their criminalization in the case of marine pollution casualties, denial of shore leave, manning agents use of the lack of tenure of seafarers’ employment to abuse and blacklist seafarers etc.
Thus, with regard to the global dimension of the seafaring industry, at present there seem to be major issues with ‘the race to the bottom’ approach where the very mobile capital of the shipping industry seeks cheap labor, evades social codes and labor standards at will in the guise of the Flags Of Convenience (FOCs) better known as Open Registries. For these reasons, it is well to say that labor is not a commodity is ambivalent; for labor is progressively treated as another factor of production, like goods, services or capital. In so far as the seafaring industry is concerned therefore, this writer takes exception to the rule by concluding that the statement labor is not a commodity is FALSE!
by Rohey Samba