Trapped Seafarers: The Legal and Practical Implications – Can We See Fairer Waters Ahead?

The spread of Covid-19 has seen the imposition of lockdowns across the globe. As has been widely reported, these restrictions on travel have left hundreds of thousands of seafarers stuck at sea, in some cases well past the expiry of their original contracts. Undertaking the now much needed crew changes poses a significant logistical challenge to those involved. It also raises a number of legal issues.

The unique nature of the problem might require a unique solution, one which could prove rewarding for those adventurous enough to rock the boat.

This Article aims to pull together the various issues that weigh upon the situation, and to analyse the various practical and legal implications, including:

• The current steps taken by various governments;
• Health and Safety implications;
• The position under the Maritime Labour Convention;
• Seaworthiness and maintenance clauses;
• Force Majeure and frustration;
• Implicit rights and potential obligations in relation to deviation;
• Explicit rights of deviation, including the new BIMCO Covid-19 Crew Change Clause for Time Charter Parties;
• Suggested amendments to the BIMCO Covid-19 Crew Change Clause for Time Charter Parties;
• The applicability of BIMCO’s Infectious or Contagious Diseases Clauses;
• The effect and interaction of off-hire clauses; and
• Whether salvage may have a role to play.

The Current Situation

Before turning to the various issues, it may be helpful to summarise where we currently are.

Since the turn of the year, the spread of coronavirus (Covid-19) has triggered the imposition of lockdowns across the globe. Precisely when certain obligations arose or were accepted in the context of the continually changing circumstances can have a significant impact on the overall legal position.

Starting with China in January, a wave of restrictions swept across Asia throughout February, with Italy becoming the first European country to follow suit. By mid-March, large swathes of Europe, along with the majority of America was affected. These lockdowns have had a significant impact on domestic and international travel. One consequence of this has been the disruption of crew changes onboard vessels of all descriptions.

This inability to perform planned changeovers on time, or at all, has led to vast numbers of seafarers trapped onboard, unable to return home, despite the expiry of their original contracts. Approximately 200,000 seafarers are in this position, along with approximately 80,000 employees from the cruise industry. The numbers are set to rise, with the International Maritime Organisation (IMO) revealing that an additional 150,000 seafarers need to be repatriated each month.

The IMO recommends designating seafarers as key workers, and they have released a 12 point protocol to enable ports to safely conduct crew changes. Points 1 – 6 relate to crew members joining the vessel and points 7 – 12 relate to those departing from it.

The main recommendations include:

• Monitoring crew members for symptoms prior to travel;
• Minimising contact with others during travel;
• Utilisation of appropriate Personal Protective Equipment; and
• Abiding by social distancing rules.

Designation of seafarers as key workers has also been supported by António Guterres, Secretary General of the United Nations. As of mid-June, the following countries had designated seafarers as key workers and notified the IMO of this fact:

Bahamas, Barbados, Brazil, Canada, Chile, France, Gabon, Georgia, Germany, Ghana, Hong Kong, Islamic Republic of Iran, Japan, Liberia, Moldova, Montenegro, New Zealand, Nigeria, Norway, Panama, Philippines, Republic of Korea, Romania, Singapore, South Africa, Spain, Thailand, the United Arab Emirates and the United Kingdom.

In the UK, one consequence of this is that seamen, masters and pilots are exempt from the compulsory 14 day period of self-isolation upon entry into the country.

In addition, the UK recently hosted a summit addressing the crisis, where further nations (including Indonesia, Greece, the Philippines and the US) agreed to measures to assist with repatriation. Many of the other measures discussed related to exploring possibilities for assisting stranded crew, including the possibility of waivers, exemptions and relaxations from visas or any other documentary requirements that might otherwise apply to seafarers.

At the start of the crisis, Hong Kong and Singapore appeared to be leading the way with their response, by implementing “safe corridors” to facilitate crew changes. This involved measures such as the use of specific flights for seafarers, the designation of specified accommodation and direct transfers between the vessel and the airport. All of these measures were intended to reduce contact between the crew and the local community. However, recent reports from Singapore’s Maritime Port Authority have revealed a number of cases where the required protocols have been disregarded, along with allegations of tampering with tests. This has led to some agents being banned from operating. Furthermore, following a spike in cases, Hong Kong has announced that vessels will no longer be able to call at the port solely for the purpose of conducting crew changes. In light of this, it appears that much of the good work is at risk of coming undone.

Despite some attempts at introducing positive steps and cooperation (outlined above) delays are still widespread. In addition to the issues highlighted above, this has been largely attributed to bureaucratic failings. Such failings have seen flights booked to transport seafarers cancelled, as well as delays in issuing visas. The result of this has been the window of opportunity for crew changes often slamming firmly shut.

This has led the International Transport Workers’ Federation (ITF) to launch their “Enough is Enough” campaign, rejecting any further contract extensions and offering support to seafarers who wish to exercise any rights to stop work and return home. Their stated objective of this campaign is to increase the pressure on governments, so that they will do more to facilitate crew changes.

As countries start to reopen their borders, the number of available commercial flights is set to increase significantly. This may go some way to relieving the pressure. However, any impact will be closely linked to the destination of these new flights. If the flights do not form a part of the route to be travelled by seafarers, then their impact will be muted.

Consequences of Being Stuck on Board

Extended periods of time on board can have a number of consequences on both the health of crew members and their ability to perform their duties to the required standards. For example, Project Martha,[1] a study into fatigue during voyages, has shown (perhaps unsurprisingly) that as a voyage progresses crew members become more fatigued. This can have detrimental effects on the physical and mental health of crew members, increasing the risk of conditions including insomnia, diabetes and depression. As such, the situation has been characterised as a humanitarian crisis, the severity of which is reflected in the fact that Kitack Lim, Secretary General of the IMO, recently declared that the situation had reached a “critical point”.

Project Martha has also identified a deterioration in motivation over the course of a voyage, and an increased chance of falling asleep whilst on shift. This will no doubt increase the likelihood of serious incidents.

Legal Position Under the Maritime Labour Convention

The Maritime Labour Convention 2006 (the Convention) governs the conditions under which seafarers can be employed and it places an obligation on ratifying states to ensure that seafarers are given a right to repatriation, at no cost to themselves, upon the expiry of their contract.[2] The Convention also limits the time for which crews can be at sea to 12 months. Once this period of time passes, seafarers should become entitled to repatriation.[3]

These rules are given effect in the United Kingdom by The Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.) Regulations 2014 (the Regulations).

The Regulations make it an offence,[4] punishable by a fine of up to £5,000,[5] for a shipowner to not make such provision as is necessary for the repatriation of a seafarer as soon as is practicable upon the expiry of their employment agreement, or where the seafarer has completed the maximum period of service (not exceeding 12 months) on board.[6] However, a defence will be available to shipowners who have taken all reasonable steps to ensure compliance.[7]

As such, it appears that where British shipowners have tried, but ultimately been unable to repatriate seafarers owing to governmental failings, they will not commit an offence, and so the seafarers will have no recourse against them.

However, the Regulations do not only place obligations upon shipowners in the UK. By regulation 27, the Secretary of State is required to make the necessary provisions for the repatriation of seafarers on board United Kingdom ships, and they have the power to do so in relation to seafarers on board non-United Kingdom ships within the UK jurisdiction. Therefore, in situations such as now, where shipowners have failed to repatriate crews, crew members onboard non-UK ships within the UK may be able to rely on the Secretary of State to arrange their transport home.

Consequences of Seafarers Being Stuck On Board Chartered Ships

In addition to the obligations they owe to their crews, shipowners must also be mindful of any obligations under charterparties (similar issues will obviously also arise in relation to bills of lading and other contracts of carriage). Based on the terms of the particular charterparty, and the circumstances in which a vessel finds itself, shipowners might find themselves either in breach of charter or, alternatively, with extra powers which could assist in the performance of crew changes.

Seaworthiness and Maintenance Clauses

One potential consequence of the current situation is that shipowners may be in breach of an obligation to provide a seaworthy vessel.

At common law, an absolute obligation to provide a seaworthy vessel will be implied into a charterparty (Steel v State Line Steamship Co (1877) 3 App Cas 72). Under this common law obligation, the time at which seaworthiness is assessed varies depending upon whether the vessel is on a time or voyage charter. Under a voyage charter, such an implied term imports an obligation that the vessel must be seaworthy at the time of sailing.[8] Whereas, under a time charterparty, the obligation will be implied at delivery of the vessel.[9]

The classic definition of seaworthiness entails that the ship:

“…must have that degree of fitness which an ordinary careful owner would require his vessel to have at the commencement of her voyage having regard to all the probable circumstances of it. Would a prudent owner have required that it should be made good before sending his ship to sea, had he known of it?”.[10]

This also includes compliance with legal requirements.[11] As such, there are two ways in which failure to perform crew changes could lead to a ship being unseaworthy.

The first relates to compliance with legal requirements. Failure to change crew members who have exceeded the maximum period of service (for example 12 months under the Convention) may leave shipowners in breach of their obligations under the Convention or other flag requirements. If this results in the vessel not receiving any required documentation, the vessel may well not be seaworthy.

The second concerns the competence of the crew. Where fatigue results in crew members being unable to perform their duties, this could render the vessel unseaworthy. Such a position is supported by the judgement of Creswell J in The Eurasian Dream [200] 1 Lloyd’s Rep 719 at page 737 who considered that a ship could be rendered unseaworthy by its crew where they were incompetent and that such an incompetence could derive from a disinclination to perform the job properly or physical or mental incapacity. As identified by Project Martha, some of the results of working for extended periods of time on board have been shown to be a reduction in motivation and competence – indicating that, if crews are not changed at suitable intervals, the vessel on which they are employed could indeed become factually unseaworthy (regardless of whether Owners are in breach of any seaworthiness obligations under the charterparty).

Therefore, the pertinent question is (at the time at which the particular seaworthiness obligation bites) whether a prudent shipowner would send his vessel to sea without first remedying any defect, or likely defect, in the vessel’s crewing capabilities. In practice, this will turn on the particular circumstances and timings of when the charterparty was entered into, and the likelihood of being able to perform any crew changes within the necessary timeframes in the current circumstances.

If crew become unfit during the course of the voyage (for example, potentially because they go beyond a 12 month stint at sea), the seaworthiness obligation is not necessarily breached. For example, in circumstances where the shipowner, with full knowledge of the pandemic and difficulties in replacing crew, sent a crew member to sea on a 2 month voyage charter in the knowledge that they had already completed 11 months at sea, it would be no answer to argue that the 12 month period (effectively making the crew member ‘incompetent’) arose after the commencement of the voyage.

Conversely, had an Owner delivered under a time charterparty in February 2020 with a crew member on board who had completed 8 months at sea, the Owner is unlikely to be found in breach of an implied seaworthiness obligation, despite the fact that that the crew member may, in fact, have become ‘incompetent’ four months later and the Owner is unable to change that crew member.

Each case will turn on its own particular circumstances and the charterparty wording involved.

Express Seaworthiness Clauses and Maintenance Clauses

The implied obligation of seaworthiness in a charterparty is often either replaced or supplemented by an express term.

Where a charterparty is governed by (or incorporates, for example by a Clause Paramount in NYPE) the Hague or Hague Visby Rules, the absolute obligation of seaworthiness is generally replaced by an obligation to exercise due diligence in ensuring that the vessel is seaworthy before or at the beginning of the voyage[12]. However, the same basic considerations will apply as referred to above.

The parties can also expressly provide that the vessel’s seaworthiness must be maintained throughout the period of the charter.  An example of such a term is Clause 1 of the NYPE 1946, which provides:

“The owners … shall keep the vessel in a thoroughly efficient state in hull, machinery and equipment for and during the service.”

It has been suggested that the requirement set out above, that the vessel be kept in an “efficient” state, extends to cover not only physical efficiency, but also legal efficiency.[13] As such, where a vessel ceases to comply with regulatory requirements, due to the expiry of crew contracts, a shipowner may be in breach of this obligation.

However, in the case of this particular clause, a breach will generally only occur where the shipowner has failed to exercise due diligence.[14] Due diligence in this context has been held to encompass both preventative maintenance and also the taking of reasonable steps within a reasonable time to remedy any defects which do in fact arise.[15] Therefore, again, questions of timings, knowledge and the available options for swapping crew out will determine whether a breach has occurred.

Breach of other Charterparty Clauses

In addition to the clauses outlined above, the failure to perform crew changes might leave shipowners in breach of other charterparty obligations. For example, Clause 2(a)(i) of  Shelltime 4 requires that throughout the charter period the vessel shall have a full compliment of crew. This obligation is absolute on delivery, but only to exercise due diligence thereafter.[16] As such, timing, knowledge and the availability of performing crew changes will be key to determining whether there has in fact been a breach.

Furthermore, Clause 2(a)(v) of the same charterparty requires that:

“the terms of employment of the vessel’s staff and crew will always remain acceptable to The International Transport Worker’s Federation…’

The ITF has indicated that it does not support further contract extensions.

In light of this, shipowners should be alert to any clauses within their charterparties relating specifically to the crew.

Frustration and Force Majeure

A shipowner may be excused from their breach of either the obligation as to initial seaworthiness or subsequent maintenance obligations by virtue of the doctrine of frustration, or the operation of a force majeure clause.

Frustration occurs when,

“there supervenes an event (without default of either party and for which the contract makes no sufficient provision) which so significantly changes the nature (not merely the expense or onerousness) of the outstanding contractual rights and/or obligations from what the parties could reasonably have contemplated at the time of its execution that it would be unjust to hold them to the literal sense of its stipulations in the new circumstances; in such case the law declares both parties to be discharged from further performance.”[17]

Thus, if the shipowners’ obligations can be shown to be radically different to that contemplated at the time of contracting, then there is an argument that the charterparty is frustrated. In the case of long-term time charterparties, entered into long before the discovery of Covid-19, it seems likely that neither party could have contemplated the possibility that crew changes might face the level of disruption currently experienced.

These arguments are significant, not least because of the implications and impact of frustration. Once a contract is frustrated, the entire contract is brought to an end automatically, and all obligations under it cease.[18] The Law Reform (Frustrated Contracts) Act 1943 does allow for the recovery of expenditure incurred prior to frustration, mitigating some of the harsh effects at common law, but it is expressly excluded from applying to charterparties (except for time or demise charters) and contracts for the carriage of goods by sea [19]. Thus the consequences of frustration might remain severe in many cases.

However, a party cannot rely on a frustration where it has been induced by them, or if they have failed to take reasonable steps to avoid or mitigate the event or its consequences. In light of this, where a shipowner had the opportunity to change the crew and failed to do so, depending on the circumstances, this might prevent the operation of the doctrine of frustration. The timings of the various relevant events here will be crucial.

Force majeure clauses release the parties to a contract from some or all of their obligations on the occurrence of an event defined within the clause. In this way, a force majeure event will differ from a frustrating event on the basis that the former will have been contemplated by the parties and its consequences prescribed within the charterparty (whilst frustration is, by its very nature, an occurrence outside of the contemplation of the parties). Therefore, (subject to possible arguments based on supervening illegality) often the existence of a relevant force majeure clause will prevent the operation of frustration.

One example of a clause that may cover the Covid-19 situation is Clause 27(a) of Shelltime 4. This excuses both the shipowner and the charterer of any liability for “any loss or damage or delay or failure in performance hereunder arising out of… quarantine restrictions”.

Even if a charterparty contains a force majeure clause, drafted in such a way as to cover the particular situation, that does not automatically excuse the shipowner from their duties to provide and maintain a seaworthy vessel. A force majeure clause may only operate when the force majeure event is the sole cause of the defaulting party’s inability to perform (Intertradex v Lesieur [1978] 2 Lloyd’s Rep 509). Linked to this, (as with frustration) a force majeure event cannot be relied upon by a party who has failed to take reasonable steps to mitigate against the consequences of the relevant event. Therefore, depending on the circumstances, where the shipowner had the reason and opportunity to change the crew, the force majeure clause may not apply.

BIMCO Infectious or Contagious Diseases Clauses

These clauses allows shipowners (of vessels under voyage and time charters) to refuse to travel to, or leave, ports where there is a risk of exposure to a disease. Whilst this will inevitably impact upon where a vessel can trade, it will not offer assistance to shipowners looking to change their crew. This is because the clause is only focussed on the risk of exposure to disease, or of quarantine restrictions, due to the vessel being in an “affected area”. Shipowners will not be able to invoke this clause positively to themselves redirect the vessel to a place where they were not previously entitled to visit in order to perform a crew change.

Furthermore, it is not clear that the clause will be triggered by Covid-19. The definition of disease (found in subclause (a)) requires the disease to be “highly infectious or contagious” and “seriously harmful to humans”. Covid-19 definitely meets the first requirement, but some have indicated potential arguments based on exactly how dangerous the disease actually is based on death rates compared to, say, normal winter flu. It has to be said that such arguments seem extraordinary given the level of suffering experienced and the random nature of the sometimes fatal effects of the disease.

Right to deviate to perform crew changes

The need to perform crew changes will also be affected by the rights of shipowners and charterers in relation to whether or not a deviation is permissible.

As has been seen, certain jurisdictions have been more proactive in facilitating crew changes. This might encourage shipowners to try and divert their vessels to these locations, where they will stand a greater chance of being able to perform a crew change.

Traditionally, unnecessary deviations have been viewed as a fundamental breach, carrying with them serious consequences.[20] As such, shipowners should be careful to only deviate from the agreed route when they are conferred a right to do so under the charterparty, or when one of the common law exceptions applies.

BIMCO COVID-19 Crew Change Clause for Time Charter Parties

One example of an express right to deviate can be found in the recently published BIMCO Covid-19 Crew Change Clause for Time Charter Parties. The clause can be found in full on the BIMCO website (https://www.bimco.org/contracts-and-clauses/bimco-clauses/current/covid-19-crew-change-clause-for-time-charter-parties-2020).

The clause aims to give shipowners a right to deviate in order to perform crew changes. The right arises when doing so is not possible at scheduled ports of call, or within the scheduled period of a call. This will clearly benefit crew members and shipowners, and the express provision within the clause as to who shall bear the costs of such a deviations also offers certainty to shipowners and charterers.

As stated, the clause allows a vessel to deviate where a crew change will not be possible within the scheduled period of call. Whilst this will include the situation where the vessel alters course to visit another port, the question arises as to whether it will include the situation where a vessel remains at a port in order to complete a crew change there. Delay has been held to amount to a deviation in a number of cases where it has increased the risks of the voyage.[21] However, it must not be trivial and must be “such as to substitute an entirely different voyage for that contemplated”.[22] Therefore, whilst remaining at port could fall within the scope of this clause, a relatively high hurdle must be overcome.

However, there are some issues potentially in need of clarification and possibly amendment. Therefore, incorporation of this clause will not simply guarantee plain sailing for shipowners.

1. Incorporation into Pre-existing Charterparties

The impact of incorporating this clause into existing charterparties where there are existing sub-charterers and/or existing bills of lading or other contracts of carriage presents issues.

In practice, the agreement of any sub-charterers will also be needed, and the charterer is under an obligation to procure the incorporation of the clause into all sub-charters and bills of lading. Obviously, where these contracts are already existing at the time of the clause being incorporated, this is not always going to be possible. The biggest hurdle is perhaps where there are already existing negotiable bills of lading. Unless the charterers/sub-charterers are still in possession of negotiable bills and are able to amend those, the position will be precarious with respect to the receivers. A recourse clause may lie against the charterer for failing to incorporate the relevant clause, but practically such claims may be difficult to enforce.

2. Off-hire

Under subclause (d), hire will either cease to be payable or be payable at a reduced rate for the duration of such a deviation. This raises the question as to what is meant by “deviation” and when will the deviation come to an end, such that the vessel comes back on full hire?

The law in relation to the meaning of this in the context of time charterparties is not settled. The current state of the law is that the concept of “deviation” with regards to voyage charterparties and bills of lading has been substantially developed and is well understood. However, it is unlikely that such a formulation would be adopted by the courts in relation to a time charterparty.

The concept of “off-hire” should only apply to time charterparties – therefore, no particular issues arises out of the fact it is likely to be incorporated into both voyage charterparties below and into bills of lading. However, the question of what constitutes a deviation in a time charterparty and, therefore, when it comes to an end may leave room for argument.

Strictly speaking, if the technical meaning of “deviation” in a voyage charterparty were to be incorporated by the use of the word deviation, then the period of deviation could continue until the vessel returned to the route it was due to follow prior to deviating.

However, it is unlikely that incorporating this meaning will be considered to be the intention of the parties. This is because, in the case of a voyage charterparty, the specific route that is taken to be agreed is generally a key element of the charter. As the BIMCO clause is intended for use in time charterparties, it is more likely that the period of deviation will be considered to have ended once the vessel is the same time away from its next destination. In this way, it is expected that the provision will take effect in a similar way to off hire clauses, such as Clause 21(c) of Shelltime 4, which requires that the vessel returns to “a position no less favourable to the Charterers than that at which the deviation commenced.” That said, the position has not been specifically decided. As a result, in order to try to avoid dispute, it would be preferable to add in the words “time lost” or “a position no less favourable to the Charterers”.

3. Meaning of Crew Change

Another area needing clarification is the meaning of ‘crew change’. Whilst the situation where crew members join and leave the vessel simultaneously is clearly a crew change, the position is less clear when individual crew members either join or leave the vessel. In addition, the timings of such individual crew changes could be contentious. For example, if the vessel deviates to allow an extra crew member on board then deviates a week later to allow a pre-existing crew member to disembark, the owners may be asked as to why both were not done at the same time.

However, subclause (b) requires that owners exercise their right under the clause with “due regard” to the interests of the charterer. To do this, it is arguable that the owner should make as few deviations as reasonably possible. This could require shipowners board or disembark crew earlier than strictly necessary. Although this wording incorporates a degree of uncertainty, it also injects a measure of flexibility that is probably necessary to allow the clause to adapt to the various and different circumstances to which it will apply.

4. Prevention

The clause requires that restrictions must “prevent” a crew change. BIMCO have stated that the use of the word “prevent” is intended to introduce a high threshold. As such, the clause appears not to be triggered when crew changes are simply made more difficult by Covid-19 related restrictions. As a result, the clause should only apply where crew changes are not possible. We can see significant issues arising here.

Shipowners arguably will need to show that they did everything possible to try and change crews at standard ports of call. Given the position is ever-changing, this will likely present significant evidential hurdles. Many arrangements will be investigated via phone calls and agents, making the position even more difficult to prove after the event. It may well be sensible to negotiate an amendment to this wording to incorporate an element of reasonableness or significance.

 Reasonable Deviations Under Hague/Hague Visby Rules

A right to deviate can also be found in the Hague/Hague Visby Rules. Article IV Rule 4 provides that any “reasonable” deviation will not constitute a breach of the Rules or of the contract of carriage. A shipowner will, therefore, be entitled to make any reasonable deviation if the Rules are incorporated into the charterparty.

Whether or not a deviation was reasonable came under consideration by the House of Lords in Stag Line Ltd v Foscolo Mango & Co Ltd [1932] AC 328. The case concerned a deviation from the direct route in order to allow two engineers (employed by the owner) to disembark. Following the deviation, the vessel suffered a collision and ultimately sank. This deviation was held to be unreasonable. The fact that deviation for the purpose of disembarking employees of the shipowner has been found to be unreasonable might indicate that deviation for the purpose of crew changes might also face the same fate. However, the circumstances of this case were quite different to a COVID-19 situation, and reasonableness was stated to turn on the particular circumstances of the case, a hard and fast rule being unsuitable.

Deviation in order to perform crew changes in cases involving considerations of Covid-19 might be considered to be reasonable deviations. Support for this proposition can be found in the judgements of Lords Warrington and Atkin. Lord Warrington was of the opinion that just because a deviation was only in the interests of the shipowner, that did not necessarily mean that it was unreasonable.[23] Lord Atkin appeared to go even further by stating that in certain circumstances, a deviation could be reasonable even if it was not in the interests of either the shipowner or cargo. As examples, he cited situations where a member of the crew was required ashore for a matter of national importance or where a fugitive was on board.[24] Applying this to the position of trapped seafarers on chartered vessels, there is a reasonably good argument that the adverse effects on health associated with remaining on board for extended periods could constitute reasonable grounds for a deviation.

Of course, whether or not a deviation was reasonable will depend, in part, on whether the shipowner had other opportunities to avoid the situation, and what the state of knowledge of the issues were and the relevant timings as to when the situation arose in the context of the epidemic as a whole.

Common Law Rights of Deviation

There are a number of circumstances in which a right to deviation exists at common law. One such right allows a ship to deviate in order to avoid danger to the ship or cargo. If it is the case that the crew become unable to operate the vessel safely as a result of exceeding the maximum permitted time on board, then it may be the case that a deviation to change crew can be characterised as one to avoid the danger to the ship. In light of the decision in Kish v Taylor [1912] AC 604, where a deviation was allowed despite the fact it was necessitated by a breach by the shipowners’ of their seaworthiness obligation, of such a right may well exist irrespective of whether or not the shipowner ought to have avoided it by performing crew changes prior to the commencement of the charter/voyage.

Again, issues of knowledge and timings will also be relevant to the availability of such rights.

Off-Hire Provisions

The current situation will also impact upon whether hire is payable. Depending on the wording of the particular off-hire clause, a vessel may go off-hire, either as a result of its crew being unfit to perform their duties or as a result of the vessel deviating to perform a crew change. Many standard forms contain clauses stating that the vessel will go off-hire under certain specified circumstances. This then raises the question as to whether the factors outlined above result in a vessel being off-hire.

When determining whether a vessel is off-hire, the starting point must be the terms of the charterparty. As an example, Clause 15 of the (NYPE 1946) provides:

“That in the event of the loss of time from deficiency of men or stores, fire, breakdown or damages to hull, machinery or equipment, grounding, detention by average accidents to ship or cargo, drydocking for the purpose of examination or painting bottom, or by any other cause preventing the full working of the vessel, the payment of hire shall cease for the time thereby lost…”

Whether or not the current circumstances arising from Covid-19 will lead to there being a “deficiency of men” on board is an issue. “Deficiency of men” has been held not to include situations where there is a full compliment of men able to work on board, but they refuse to do so (Royal Greek Government v Minister of Transport (1948) 82 LIL Rep 196 (CA)).

Therefore, if a crew change is needed as a result of the crew striking, then the vessel will not necessarily go off-hire by virtue of the deficiency of men. It is often specifically agreed, therefore, that additional wording such as “default” of men will be added to the off-hire clause. This was done in the 1993 revision of the NYPE.

However, if crew members are incapable of working to the required standards, due to the adverse effects of being on board for an extended period of time, then this may leave the vessel without a full compliment of men able to work, and so could fall within the phrase “deficiency of men”. However, this is probably not necessary given that the clause also provides that the vessel will go off hire in the event of “any other cause”. This sweep up wording has been found to cover situations where the cause is related to the physical condition or efficiency of the vessel (including its crew).[25] Problems caused by a fatigued or out of contract crew may therefore be within its remit.

Could the Provision of Crew Change Services Amount to Salvage?

Salvage operations are defined in Article 1(a) of the International Convention on Salvage 1989 as an:

“…act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever”.

In light of this, due to the threat posed to the vessel and its cargo by a fatigued crew, it is possible that the performance of crew changes could amount to the provision of salvage services.

This could be the case, for example, where the crew are in fact incapable of safely performing their duties or, possibly, where they have been at sea for over 12 months and are therefore deemed incompetent (on the basis that there is a “reasonable apprehension of danger”[26] – see further below). This claim to salvage does not rely on, and should not be confused with, “life salvage” which has a parasitic existence on the back of danger to property. The required element of danger has previously been found in cases where the crew have been suffering from ill health and exhaustion.[27]

The test for danger was set out in The Beaverford (Owners) v The Kafiristan (Owners) [1938] AC 136 HL and asks whether a skilful and prudent person in charge of the vessel would have refused or accepted the salvor’s help. If they would have accepted the help, then the vessel was in danger. Therefore, the question is, would a reasonable master accept the help of a salvor in changing his crew due to the risk posed by the existing crew being fatigued? When considering the answer to this question, it is important to note that the danger to the vessel need not be immediate, provided that there is a reasonable apprehension of future danger (The Aldora [1975] QB 748). This would suggest that a master would not be required to wait until an accident actually takes place, but could act once he has a reasonable apprehension of such.

The required element of danger has previously been found in cases where the crew have been suffering from ill health and exhaustion.[28]

In addition, the following has been found to amount to salvage services:

 “[s]upplying officers or seaman to a ship which, through illness, exhaustion or other calamity, is dangerously short of hands to navigate or to work her competently” [29]

Whether anybody will seek to cash in on this opportunity, however, remains to be seen.

Concluding remarks

The spread of Covid-19 has left many seafarers trapped on board their vessels, unable to return home. Whilst they are entitled to repatriation under the Maritime Labour Convention it has been seen that, in reality, these rights have been of limited utility. This has been due to the logistical issues associated with trying to move vast numbers of people across the planet at a time when international travel is severely curtailed.

As set out above, the legal landscape of the issues raised is complex. However, there are a number of existing legal principles that can be applied to help find solutions.

As the new BIMCO clause attempts to show, the parties can also take proactive steps to try to head off some of the more pressing issues before they arise.

Unfortunately, compassion is not always in plentiful supply in an ever pressurised economic climate. Charterers may not be willing to agree to measures such as the introduction of the BIMCO Covid-19 Clause, or other compromises. In such situations, shipowners may need to consider all of the options available to them.

[1] Conducted by The Centre for Maritime Health and Society, University of Southern Denmark, Dalian Maritime University, InterManager, Stress Research Institute, University of Stockholm, Warsash Maritime Academy, Southampton Solent University and University of Southampton.

[2] Maritime Labour Convention, Regulation 2.5.

[3] Maritime Labour Convention, Regulation 2.5.

[4]The Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.) Regulations 2014, regulation 19(2).

[5]The Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.) Regulations 2014,  regulation 59; section 37 Criminal Justice Act 1982.

[6] The Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.) Regulations 2014, regulation 19(1)(a); Regulation 19(1)(e); Schedule 1, Part 1, 10.

[7] The Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.) Regulations 2014, regulation 60.

[8] McFadden v Blue Star Line [1905] 1 KB 697.

[9] Under a time charter, seaworthiness is assessed at the time of delivery and the obligation is not considered to be a continuing one.

[10] C. Bradley & Sons v Federal Steam Navigation(1926) 24 LlL Rep 446.

[11] The Arianna [1987] 2 Lloyd’s Rep. 376.

[12] There is an argument that this obligation arises at the start of each voyage under a time charter owing to the wording of Article III, Rule 1 and the decision in The Adamastos, where the seaworthiness obligation was found to apply at the commencement of each voyage under a consecutive voyage charter (Time Charters paragraphs 34.13 – 34.16). Whilst it has not yet received direct judicial approval, the argument relies upon the words “before and at the beginning of the voyage” to assert that the seaworthiness obligation attaches to each voyage (Time Charters paragraphs 34.13 – 34.16). However, in The Hermosa [1980] 1 Lloyd’s Rep 638 Mustill J expressed doubt as to whether this would be the case, owing to the fact that the obligation as to initial seaworthiness is often supplemented by an additional obligation to maintain the vessel. Therefore, the position which the courts will ultimately take on this issues remains to be seen.

[13] Coghlin, Baker, Kenny, Kimball & Belknap Jr, Time Charters (7th end, 2014)

[14] Tynedale v Anglo-Soviet Shipping (1936) 54 LlL Rep 341

[15] Snia v. Suzuki (1924) 17 Ll.L.Rep. 78

[16] Shelltime 4, Clause 3 (a); The Fina Samco [1994] 1 Lloyd’s Rep 153, 158.

[17] National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675.

[18] National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675.

[19] Section 2(5).

[20] Hain SS Co v Tate & Lyle (1936) 41 Com Cas 350. Although it is not clear that this approach has survived the development of the rules relating to fundamental breach by the House of Lords in the cases of Suisse Atlantique [1967] 1 AC 361 and Photo Productions v Securior [1980] 1 AC 827. In the latter case, Lord Wilberforce considered that it might be possible to view cases on deviation as sui generis and so independent from the rules on fundamental breach at large. If correct, this may mean that it may still be possible to treat a deviation as a fundamental breach. However, in The Antares [1987] 1 Lloyds Rep 424, the Court of Appeal took the view that the normal rules of contractual construction ought to apply in determining the consequences of a deviation. As such, the issue remains to be clarified.

[21] Attorney-General v. Smith (1918) 34 T.L.R. 566; Brandt v. Liverpool S.N. Co. [1924] 1 K.B. 575

[22] Brandt v. Liverpool S.N. Co. [1924] 1 K.B. 575

[23] Pages 339 & 340

[24] Page 343

[25] The Laconian Confidence [1997] 1 Lloyd’s Rep. 139.

[26] The Aldora [1975] QB 748.

[27] The Swan (1839) 1 W. Robinson 68; The Charlotte Wylie (1846) 166 ER 842; The Aglaia (1888) 13 P.D. 160.

[28] The Swan (1839) 1 W. Robinson 68; The Charlotte Wylie (1846) 166 ER 842; The Aglaia (1888) 13 P.D. 160.

[29] Francis Rose, Kennedy and Rose on the Law of Salvage (9th edn, Sweet and Maxwell 2017) 5-012.

Disclaimer: Specific legal advice should always be taken. The information provided within this article does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only

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