The global coronavirus pandemic, however, has worsened this situation significantly.

Speaking to Lawyers Weekly, HFW partner Toby Stephens and senior associate Joel Cockerell said that, in the wake of COVID-19, there has been a “significant tightening” around crew changes that can occur in shipping, meaning that over 400,000 crew are stranded at sea or waiting to start employment and get paid and that a significant number of crew members have spent more than a year at sea.

“In this connection, under the Maritime Labour Convention (MLC) seafarers can generally only work a maximum of 12 months at sea at a time. As a result, there have been increased reports of altercations [among] the crew and their managers (the companies that manage the vessels),” the pair explained.

“In the worst cases, this has resulted in suicides, given the uncertainty as to when crew changes will become possible meaning that the end is not in sight for many. There is further [concern] that fatigue and mental health issues could lead to serious maritime accidents.

“Replacement crews have found themselves unable to commence duty meaning that many remain unpaid and unable to travel home from the locations where they have been waiting to commence service as immigration and border restrictions only add to the problem.”

Consequences of such shipping issues

Economically, Mr Stephens and Mr Cockerell advised – “with more than 80 per cent of all goods carried by sea, and so far only a small number of countries permitting crew changes and most have significant restrictions on when crew changes can be carried out” – the need to repatriate seafarers may lead to delays in the delivery of cargo and could even result in the detention of vessels that have breached the MLC.

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This crisis, ultimately, has been brought about by governmental restrictions, the pair said.

“The crew change crisis requires pragmatic solutions that are implemented quickly because time [onboard] continues to accrue. Resolving the crisis will thus be difficult unless and until governments recognise the crew change crisis for what it is and crew changes are facilitated,” they explained.

“The crisis represents a huge logistical challenge since as restrictions are being gradually lifted, shipowners, operators and manning companies are facing a huge backlog of crew changes to work through and replacement crew to source.  This is expected to have a knock-on effect on the otherwise smooth operation of the vessels and could mean delay to the voyages/delivery of the cargo and could lead to a global disruption of trade.”

The role of lawyers

When asked how best law firms can assist in navigating such issues, Mr Stephens and Mr Cockerell said private practice lawyers can and should “deliver a practical and commercial response to the legal requirements brought about by this crisis and to help provide local assistance where required to achieve an efficient resolution and help bring seafarers home in compliance with international and domestic regulations and avoid delays to ships and their cargoes”.

As these issues usually involve multiple jurisdictions and require both a technical legal and political aspect, they continued, “close collaboration of external legal [advisers] with corporate legal teams is required to achieve efficient solutions”. 

“Corporate legal teams will have [in-depth] knowledge of the terms of the [seafarer employment agreements/collective bargaining agreements] in place and will be able to provide the external [advisers] with the factual foundations,” they outlined.

“They will further have established channels of communication in place with the [vessel] and the crew and will be able to help manage expectations among the crew/assist in relaying all necessary information in order to help bring about an end to the crisis.”

Lessons and looking ahead

As an industry, Mr Stephens and Mr Cockerell mused, shipping has traditionally suffered from “invisibility syndrome”, whereby few people outside of the maritime landscape have an understanding and appreciation for its importance.

“The importance of seafarers should however not be underestimated considering that seafarers help move about 90 per cent of the world’s shipments including essential goods such as medicine/medical supplies and food,” the said.

Greater attention for such maritime concerns is and will be “welcome and long overdue”, the pair said.

“It is hoped that this help will bring about a much-needed relaxation of the situation and collaboration among governments/a commitment to resolve the crisis. In this respect, the governmental recognition of the status of seafarers as key workers, as has been suggested by the IMO, is certainly a starting point,” they noted.

All legal professionals, regardless of their practice area, should “spare a thought” for those trapped at sea, Mr Stephens and Mr Cockerell concluded.

“Seafaring has become increasingly stressful in recent years. With greater costs pressures and advancements in technology, there are fewer people [onboard] commercial ships, which means less of a community. Less support. It is a lonely job at the best of times and depression and suicide have been on the increase for some years,” they noted.

“Add to this the uncertainty of not knowing when you will be able to get home to your family, without even the prospect of the occasional run ashore.”

Voting is now open for The Lawyers Weekly Award, to be presented to one individual for making substantial, consequential achievements in advancing the Australian legal profession since 2000. Finalists for this prestigious award have been confirmed as those listed below. To vote for your preferred winner, click here. https://www.lawyersweekly.com.au/biglaw/28834-vote-now-for-the-foremost-lawyer-of-the-21st-century

Julian Burnside AO QC (barrister)
Bernard Collaery (barrister, former Attorney-General of the ACT)
Kate Eastman SC (barrister and co-founder, Australian Lawyers for Human Rights)
The Honourable Robert French AC (former chief justice, High Court of Australia)
Sue Kench (global chief executive, King & Wood Mallesons)
The Honourable Chief Justice Susan Kiefel AC (chief justice, High Court of Australia)
The Honourable Michael Kirby AC CMG (former justice, High Court of Australia)
Jane Needham SC (barrister and former president, NSW Bar Association)
Geoffrey Robertson AO QC (barrister)
Professor Gillian Triggs (assistant secretary-general, United Nations and former president, Australian Human Rights Commission)