Departamento de Derecho Común, University of Santiago de Compostela, Santiago de Compostela, Spain
KeywordsBrussels I bis RegulationLugano ConventionMaritime employmentMaritime Labour Convention, 2006Maritime labour lawRome I RegulationRome II RegulationSeamen’s contract of employmentWork in Fishing Convention, 2007
Maritime law, including maritime employment, is the testing ground for the globalisation process, which is encouraging the gradual internationalisation of both economies and societies, driven by innovations in technology and communications.1 This process contrasts with the fact that private international disputes have so far been legally addressed as rarae aves, i.e., as exceptions to the domestic situations for which legislative policies are generally conceived. While the latter are characterised by predictable uniformity—although varying to a certain extent in socio-economic terms—the same cannot be said of the former since their contact with different jurisdictions results in different degrees of internationalisation involving different levels of cultural, societal and economic discrepancies.
However, the marginal role played by private international disputes has recently been challenged, with the permeability of borders at the core of the political discussion.2 The globalisation process involves the opening up of both societies and economies, as well as an inevitable and inexorable blurring of legislative power, which was almost exclusively in the hands of states until recently. It is becoming increasingly difficult for states to control their societies and economies due in part to the relocation of businesses and migratory movements that lead to a loss of power at the point of policy enforcement. This is the undesired result of regulatory competition and stems from initiatives such as those entitling stakeholders to indirectly select the law applicable to the situation in question by taking advantage of market freedoms. In this context, the absence of clear links to any specific jurisdiction gives prominence to private international law as the best set of rules for dealing with private international situations.3
Nonetheless, private international rules are not enough to avoid a potential race to the bottom in the sector, and it is therefore necessary to take a step further to reduce globalisation’s impact on our open societies, particularly through international cooperation and the development of minimum international standards. Against this background it should be noted that in the field of maritime law, private international situations have long been the rule and not the exception, for which reason maritime law is also an excellent example of how innovations have transformed the way private situations are approached legally.
Maritime employment provides an outstanding example of the new course that has been charted: freedom in ship registration—an area with a strong national component until the twentieth century as a result of the tight control exercised by flag states over their vessels—has turned maritime employment into a truly international activity.4 Recent developments in technology and communications have enabled operators to choose the law applicable to their businesses through choosing a vessel’s flag by registering ships in the country where their interest is based.
Indirect party autonomy allows forum shopping in search of the cheapest law, which is normally the law that reduces both safety on board and labour costs. Healthy competition between legal systems seems unlikely in this context,5 and the direct result has in fact been that traditional maritime nations have established international and second registries with a view to competing with ‘flags of convenience’—meaning countries that open their registries to any ship—to be able to preserve their merchant and fishing fleets in this way. These registries’ main feature is that they allow non-residents in the country where the vessel is registered to be recruited as crew members, meaning that their employment contracts are not necessarily subject to the law of the flag. In addition to freedom in ship registration, this further liberalisation process has led to what is known as ‘crews of convenience’.
The inevitable consequence of the internationalisation process of the labour market is the relocation of maritime employment, which is currently dependent on a number of factors, given that the law of the flag state can no longer take all workers aboard under its wing, whether protective or otherwise. Crew members can be recruited anywhere outside the flag state, given that open, second and international registries allow the hiring of staff that are not flag state residents. Shipowners make good use of this freedom of recruitment by using manning agencies based in what are now called ‘labour-supplying states’. Needless to say, employers are becoming equally international as well, with the added complication that it is becoming increasingly difficult to locate them under the freedoms of establishment and provision of services.
The end result of these factors is deregulation, which also triggers costs, the most striking of which are derived from gaps in maritime safety, leading to substantial losses as a consequence of catastrophic maritime accidents. There are other costs, however, as the internationalisation processes affecting maritime employment also compromises fair competition in the shipping and fishing sectors. The processes leading to internationalisation and their consequences, as well as the reactions of the international community, are discussed in Chap. 2 of this book.
The first reaction takes the issue of flags of convenience as its starting point. There have been numerous attempts to define flags of convenience, but perhaps the most successful characterises them by their total inhibition of the maritime administration in charge of the vessel in question.6 The flag state’s lack of control is clearly indicative of the fact that priority is given to the pursuit of economic objectives over other values such as environmental and worker protection, given their low investment in technical measures and labour standards.
The costs of the accidents that inevitably occur as a result of weaker control measures affect not only flag states but also new players in the international arena in maritime issues, i.e., port states7: flags of convenience ignore their responsibilities, which in turn undermines flag state authority and legitimises port state intervention to inspect the conditions of the ships docked at its ports. The situation is roughly the following: environmental protection requires stricter shipbuilding standards,8 whose implementation should not be avoided by resorting to a flag of convenience. Their enforcement therefore depends on different actors: while there are international agreements on the nature of these standards, whether they are complied with or not falls under the jurisdictions of both the flag state and the port state, meaning that port states have become cooperating parties in the control mechanisms, which primarily remain the responsibility of flag states.
Following the trend set in the area of environmental protection issues, the same rationale can be applied to ensuring the protection of workers at sea. At this point, reference must be made to the invaluable work of the two international institutions whose partnership has contributed to laying the foundations of international labour law: the International Maritime Organization (IMO) and the International Labour Organization (ILO). To outline the minimum standards for maritime employment as established by these bodies, the conventions that they have issued that are specifically related to work at sea need to be referred to.
The most important of those conventions are the ILO Maritime Labour Convention 2006 (hereafter MLC, 2006)9 and the ILO Working in Fishing Convention 2007 (hereafter WFC 2007).10 As their names indicate, both deal with living and working conditions on board. However, differences in the kind of economic activity and exploitation of the sea’s resources carried out by shipping and fishing fleets have an important bearing on the applicable convention.11 Both seek to institute minimum labour standards, and their compliance needs monitoring not only by the flag state but also by the port state.12 The 2007 Convention is not as thorough as MLC, 2006, but it also contains provisions on port state control and on the role of labour-supplying countries in establishing and preserving suitable living and working conditions for fishermen.13
The background provided by the conventions dealing with international labour law—roughly sketched in the second chapter of this book—is not accepted in all states, nor does it cover all aspects of the employment relationship. It also suffers from serious enforcement problems, making the need to address international jurisdiction and conflict of law issues, the areas to which this book is mainly devoted, even more apparent. The peculiarities of maritime employment have determined the way these issues are approached from a private international law perspective, which is obliged to rely on public international law while tackling situations created and developed at mare liberum, namely, in non-sovereignty areas. The 1982 Convention on the Law of the Sea (UNCLOS)14 was an attempt to reconcile the principle of freedom of the seas with the need for public regulation and private planning involved in every maritime venture by distinguishing among the different maritime areas and submitting whatever happened on the high seas to the flag state’s jurisdiction. Accordingly, the flag state could also have a say in living and working conditions aboard.
Nevertheless, the fact that flags of convenience neglect their responsibilities and crews of convenience are not subject to the law of the flag erodes the central role that this connecting factor has traditionally played in resolving key private international law issues. This flag state connection has undeniably lost part of its weight where identifying the closest jurisdiction to a seafarer’s employment contract is concerned. In fact, the crisis of the flag as the key connecting factor in these matters affects not only individual employment relationships but also their collective dimension, an issue that is dealt with in the last chapter of the book. Aspects such as determining which state is responsible for social security matters affecting seafarers and deciding on current employment contracts in the event of the employer’s insolvency are also covered.
The relative loss of the significance of the vessel’s flag as the key connecting factor in maritime employment is less clear when issues of international jurisdiction are addressed. This sector of private international law aims to facilitate access to justice, and in so doing it ought to provide seafarers with several heads of jurisdiction so that they can find a close and thus affordable court. This seems particularly complex because of the high degree of internationalisation in maritime employment, where crew members may have been recruited in different countries, usually through manning agencies, while the shipowner’s headquarters may be located in a different country and the work itself may well be carried out on board a ship that is sailing or fishing under a third country’s flag.
Chapter 3 tackles international jurisdiction issues in maritime employment by focusing on the rules currently in force in the European Economic Area. Hence, Regulation No. 44/2001, of 22 December 2004 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (hereafter Brussels I Regulation),15 and Regulation (EU) No. 1215/2012 (hereafter Brussels I bis Regulation),16 reviewing Brussels I and which is fully applicable from 10 January 2015, are addressed. Together with the 2007 Lugano Convention,17