By Chevanev Charles LL.M (IMLI) & Derrick Okadia LL.M (IMLI)
The Covid-19 pandemic has caused stranded seafarers to be, trapped at sea. An estimated 100,000 seafarers can neither disembark or proceed to sea as many Port States (the country where the ship is anchored or docked) and Flag States (the country where the ship is registered) have taken preventative COVID-19 Measures to stop the spread of the virus.
The Philosopher Matshona Dhliwayo states “Your mind is a ship; it can sail across the universe as long as you don’t allow negative thoughts to sink it.” For seafarers, many of them are chartering this new reality as many seafarers are under dire psychological and financial stress that is unprecedented in contemporary times.
Due to the nature of COVID-19 and the global death toll which stands just over 244,000 at the time of writing this article, quarantine is a necessary measure and vital to the protection of the wider population. Although the issue of responsibility of repatriation has been largely settled (see the previous article “Who is responsible for seafarers left stranded by the pandemic”), a serious debate has been sparked on whether ship owners are liable to pay for the necessary quarantine costs in the home state of repatriated seafarers.
What guidance does international law give on who is to pay for quarantine medical costs?
From Small Island Developing States (SIDS) like Saint Vincent and the Grenadines, Saint Lucia and Grenada to much larger economies like Kenya, Ghana and South Africa there is vigorous debate regarding quarantine costs as many seafarers are beginning to be repatriated.
What is included in quarantine costs?
These quarantine costs may include: costs for medical support, food, accommodation, policing and security. The quarantine period may last from 14 days to 21 days dependent on the state and varies in costs from $1000USD or more per person. This can easily cumulate into millions of dollars in quarantine costs. Shipowners will resist this liability as states may retroactively attempt to recover costs if they are found liable.
Who is potentially liable to pay for quarantine costs?
It is important to proceed with the fundamental understanding that ships are governed by the laws of the country in which they are registered or flagged, known as the Flag State. They are also governed by the country where it is moored, docked or anchored known as the Port State. For example, this is why the American institution, the Centers for Disease Control and Prevention (CDC) may exert US jurisdiction on ships flagged or registered in other states who are currently docked in their waters.
In addition to shipowners being held responsible for repatriation claims by seafarers, seafarers may have further remedy based on the principles of “maintenance and cure” claims. This remedy operated under the circumstances where seafarers have limited medical and food supplies whilst aboard vessels that have no plan to repatriate them to their home countries. This remedy has its origin from Article VI of the Rules of Oleron which outlines the Ship’s responsibility when a seafarer is injured in the course of his employment. The fundamental aspect of this remedy is that a seafarer who gets injured or ill while in conduct of his employment should be “cured” at the cost of the shipowner and also have a claim in rem or against the actual ship until the seafarer is no longer incapacitated.
In the present COVID-19 crisis, the remedy has been codified under the Maritime Labour Convention, 2006 (MLC). It is important to note that for the Maritime Labour Convention to apply, the Flag State must be a member and that the MLC are only “minimum standards.” States may apply more stringent standards but must not fall below the MLC minimum standards. This means that a ship flagged in country X may have different provisions to one flagged in country Y. However, the MLC has been largely adopted consistently throughout many countries and seafarers would have remedies consistent with the convention.
Under Regulation 4.2(a) this provision gives the duty of medical care to the shipowners to provide medical care to seafarers occurring during the time of starting his employment aboard the ship up to when he is deemed duly repatriated or a sickness that arises from their employment between those dates which may characterise the present situation.
Regulation 4.2(b) suggests that Shipowners were to have in place financial security or insurance to assure compensation in the event of death or long-term disability. In essence, where a seafarer dies from COVID-19 which is traceable to his employment on the ship, then the seafarer’s family may be entitled to an insurance payment or compensation for the seafarer’s death.
Regulation 4.2(c) states that shipowners shall be liable to defray or cover medical care including medical treatment, “board and lodging” “away from home” until the sick seafarer has recovered.
What these regulations suggest is that seafarers could have a claim against the shipowners should they test positive for the virus aboard the ship. Or, additionally, test positive for the virus which is traceable back to the course of their employment. The shipowner would be liable for medical costs including quarantine costs because these are necessary for the “health protection” of the seafarer. A claim may, therefore, be extended to reasonable and necessary quarantine costs in their home state because the origin of the contraction of COVID-19 was aboard the ship.
By way of analogy, if a seafarer seriously breaks an ankle whilst performing his job, as the injury was sustained through the course of his employment, he is entitled to compensation and medical costs even when he returns to his home state dependent on its severity. Courts have awarded compensation for continued rehabilitation covering medical expenses in the past in personal injury matters and this could be the basis of logic for extending the responsibility of the shipowner to cover the cost of quarantine for COVID-19.
What are possible defences that a Shipowner may use?
The notable challenge with establishing a claim, under these circumstances, is that while they are providing “regular” medical care onboard vessels, there are not many ships that are actively testing seafarers including those who may be asymptomatic. There are many ships that are not testing at all.
This means that when the seafarer is repatriated, they may not be able to claim against the ship because the ship may state that there is no evidence that this virus was contracted on board their vessel and it was rather acquired in transit to the seafarer’s home state. A shipowner may also state that a seafarer abandoned a course of medical treatment or plan and the shipowner is not liable to pay as the seafarer would have forfeited his compensation.
Once a seafarer enters an airport to be repatriated, where social distancing has been described as “impossible” by John Holland-Kaye, Chief Executive of London Heathrow, Europe’s busiest airport, a ship in rebutting their liability, could say that the seafarer contracted the virus outside the scope of their employment and therefore outside their responsibility.
This may be also why some seafarers are being sent home via charter flights and some via boats, albeit only a supposition. The nature of COVID-19 allows asymptomatic seafarers to feel physically fit, meaning they do not demonstrate any COVID-19 symptoms but are still contagious. Without any testing, many are being sent home or brought home as proverbial trojan horses and may perpetuate the spread of the coronavirus.
Recently, the International Labour Organisation (ILO) has been campaigning for all countries to officially recognise COVID-19 as an “occupational injury.” (see here) This means the shipowners would have a clearer responsibility to protect their workers as far as practicable. This implies that stricter protocols, sufficient personal protective equipment of the correct types and testing and tracing and tracking protocols becomes readily available.
The ILO also wishes to have a rebuttable presumption to indicate that, for seafarers, the disease is presumed to have arisen out of the course of their employment unless conclusive evidence is provided otherwise. They also wish to have the definition of workplace to include “travel to and from work.” These measures would mean that shipowners would be more effectively and clearly held responsible and liable and negligent shipowners would be subject to appropriate penalties.
Ultimately, COVID-19 has proven itself to be incredibly devastating to persons, their families and their countries’ economies. Seafarers are some of the most vulnerable victims in this crisis and while many are docked in port, they are experiencing some of the roughest seas of their careers. Seafarers have long been the lifeblood of the maritime industry pre-COVID-19 and this fact will not change. The Maritime fraternity of shipowners may see an unprecedented ground of claims arising from or related to the virus. Nevertheless, bringing our seafarers home and keeping their fellow citizens safe through quarantine is the main priority.
We need an unprecedented response for an unprecedented crisis.
(Chevanev Charles is a graduate of the International Maritime Law Institute in Malta. He is a practicing lawyer based in Saint Vincent and the Grenadines who specializes in international maritime law. He is reachable on [email protected]
Derrick Okadia is a graduate of the International Maritime Law Institute in Malta. He is a practicing lawyer based in Nairobi, Kenya who specializes in international maritime law. He is reachable on [email protected])