The Connecticut Maritime Association

Shipping 2001

March 20, 2001

The Recruitment and Retention of Ocean Going Officers and Seafarers

Seafarers’ Rights Link to Recruiting and Retaining Seafarers

Douglas B. Stevenson

Director, Center for Seafarers’ Rights

Seamen’s Church Institute

Good afternoon, it is a pleasure to be with you this afternoon to speak to the important topic of recruiting and retaining seafarers.

I commend the Connecticut Maritime Organization for including this topic on Shipping 2001 agenda. The topic is significant and well-timed. During the past three Blue Water /Brown Water forums that the Seamen’s Church Institute sponsored in conjunction with its annual silver bell dinner, the most pressing topic raised by the participants was recruiting and retaining shipboard personnel. RADM North has already mentioned that in response to this crisis and to provide a catalyst for action, the Coast Guard, the Maritime Administration, shipping companies, unions and the Seamen’s Church Institute are sponsoring a national dialogue on Maritime Careers: Creating An Action Plan For Recruiting and Retaining American Seafarers to be held on May 23-24, 2001 at the United States Merchant Marine Academy. Our discussions here at CMA are a welcome and useful contribution toward developing a national action plan for recruiting and retaining mariners.

As part of the process, on October 6 of last year, we held a preliminary scoping session at SCI to get a feel for the magnitude of the problem and to identify some of the issues relating to it. What we found was that recruiting and retaining American crews was a crisis gripping all sectors of the maritime industry and that there were many complex factors contributing to the problem.

Many of the issues have already been raised here today by other speakers. Rather than trying to address all of the factors, I will narrow my remarks to only one aspect of the problem: the relationship between seafarers’ rights and recruiting and retention.

I am under no illusions that if the industry simply protects seafarers’ rights, all of the recruiting and retention problems will go away. The problem is much more complex than that. However, at the same time, I believe that protecting seafarers’ rights is a significant factor in recruiting and retaining quality ship’s crews. Notably, the industry’s response to seafarers’ rights sends a very strong message about how it values its shipboard personnel. To mariners and to prospective mariners, the industry’s actions speak much stronger than words.

When the industry creates rights for seafarers; when the industry staunchly preserves traditional seafarers rights, mariners understand that they are valued and respected for their contributions to the enterprise. When the industry ignores or erodes traditional seafarers’ rights, then mariners come to another conclusion. Mariners’ perceptions of their worth and dignity are certainly major factors in their joining and in their remaining in a shipboard career.

What I will do now is to select one of the many rights that the law accords to seafarers; describe the right and its origin, and then take a look at how the industry is responding to the right. We can then use the discussion period to explore whether the industry needs a course correction.

The right I have chosen to discuss is maintenance and cure.

Maintenance and cure is one of the oldest and most enduring rights enjoyed by seafarers. So firmly established is this right in the general maritime law and by long tradition, that it is assumed to be part of every seafarer’s employment contract. So fundamental is this right in maritime law, that it cannot be contracted away by an individual mariner.

Maintenance and cure is a basic and simple right. It is designed to be a remedy that is free from uncertainty and red tape. For centuries, seafarers have understood that if they got sick or were injured that the ship would pay for their medical care and living expenses until they were cured or reached maximum cure. In addition, they would receive their wages during their recuperation until maximum cure or until the end of their contract – whichever occurred first.

This right to maintenance and cure for seafarers preceded workers compensation schemes for land workers by hundreds of years, and it is still superior to workers compensation. Unlike workers compensation, there is no requirement in maintenance and cure for the sickness or injury to be work related or job connected. Even injuries sustained by a seafarer on shore leave are covered by maintenance and cure. All that is required is that the illness or injury occur during the term of employment. The only two exceptions to maintenance and cure are willful misconduct and intentionally concealing the medical condition from the employer at the time of employment.

As I mentioned, maintenance and cure is one of the oldest of seafarers’ rights. It was established long before, for example, seafarers had a right to earned wages. The right was first recorded in one of the earliest written codes, the thirteenth century Rules of Oleron. The code provided sick or injured seafarers free medical care, living expenses and wages during their recuperation. Our present day doctrine of maintenance and cure is almost identical to the Oleron Code. The rules were certainly well established long before they were recorded in the early codes. They came out of the business practices that were developed in the ancient Mediterranean trades.

These laws weren’t written as an expression of the industry’s conscience. The early maritime enterprises and early courts recognized that maritime commerce depended upon attracting and retaining good crews to make sure that their vessels and cargo made it to their destinations. Because of the uncertainty of earning wages, substantial physical risks, harsh discipline onboard and long voyages; incentives were necessary to induce seafarers to go to sea.

The first United States court decision to recognize maintenance and cure was the 1823 case of Harden v. Gordon. In his frequently quoted decision, Justice Story noted that France, Denmark, Sweden, the Hanse Towns, Prussia and Holland, countries with which the United States shared a common maritime tradition of merchant voyaging, all followed the ancient doctrine based on the Laws of Oleron and Wisby. He wrote:

“Seamen are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labour. . . . If some provision is not made for them in sickness at the expense of the ship, they must often in foreign ports suffer from the accumulated evils of disease, poverty, and sometimes perish from the want of suitable nourishment. Their common earnings in many instances are wholly inadequate to provide for the expenses of sickness; and if liable to be so applied, the great motives for good behavior might be ordinarily taken away by pledging their future as well as past wages for redemption of the debt. . . .

On the other hand, if these expenses are a charge upon the ship, the interest of the owner will be immediately connected with that of the seaman. The master will watch over their health with vigilance and fidelity. He will take the best methods, as well, to prevent diseases, as to ensure a speedy recovery from them. He will never be tempted to abandon the sick to their forlorn fate, but his duty, combining with the interest of his owner, will lead him to succor their distress, and shed a cheering kindness over the anxious hours of suffering and despondency.”

We can conclude, therefore, that maintenance and cure was an early maritime industry response to a recruiting and retention problem. It was a response that has stood the test of time.

But will it survive?

When you look at some of the maritime industry’s assaults on maintenance and cure you have to wonder if the people who are concerned about recruiting and retaining quality crews are talking to their colleagues who are trying to reduce the incentives to attract and retain good people.

I have noticed several instances where attempts have been made to erode seafarers’ rights to maintenance and cure. Let’s take a look at how the industry is looking at this recruiting and retention incentive: maintenance and cure.

• We recently learned from a musician who was seeking to join a cruise vessel’s crew, that cruise line’s employment agency was requiring all musicians to prove that they have private health insurance as a condition of employment. It seems that the cruise industry is attempting to chip away at its responsibility to provide maintenance and cure, even though United States law is very clear that maintenance and cure extends to musicians and all other crew members who “contribute to the function of the vessel or to the accomplishment of its mission.”

• A recent opinion of the Liberian flag authority supports the cruise line’s departure from centuries of settled maritime law by determining that in terms of the requirements of Liberian law, entertainers (and possibly all “hotel staff”) on board passenger vessels are not considered seamen and are not entitled to Liberia’s statutory maintenance and cure protections.

• Panama has similarly made concessions to the cruise industry in its laws by reducing maintenance and cure rights for all seafarers working on passenger vessels. The 1998 changes to the Panamanian law erodes the maintenance and cure rights of all crewmembers working on international passenger vessels by reducing the time that wages are paid to recuperating crewmembers to thirty days. Seafarers on all other Panamanian ships are entitled to be paid wages during their recuperation for up to twelve months.

• Last year the Philippine Overseas Employment Administration approved a new standard contract for all Filipino seafarers working on ocean-going vessels. This new contract, among other changes, deprives Filipino seafarers of their historic right to maintenance and cure by limiting medical care benefits only to conditions that were directly caused by employment. The POEA effectively wiped out maintenance and cure for Filipino seafarers and replaced it with a workers’ compensation scheme similar to those provide to land workers.

• Maintenance is a subsistence allowance that is intended to cover the reasonable costs of food and lodging during recuperation that is comparable to that received aboard the vessel. However, many American seafarers’ collective bargaining agreements still contain clauses that limit maintenance to $8.00 a day. Non-unionized American mariners are entitled to maintenance of actual reasonable living expenses.

• In January of last year, while on a voyage from Zaire to Brazil, a Ukrainian third engineer died of malaria in mid-ocean. The autopsy report attributed the death to lack of medical care. The shipowner refused to pay contractual death benefits to the widow on the grounds that the death was not due to a marine risk. This case created the appearance that because death benefits would be less expensive than providing maintenance and cure, the man was allowed to die without medical care.

Reducing or eliminating traditional seafarers’ rights, such as maintenance and cure, can be disastrous to both seafarers and the maritime industry.

There seems to be trends toward cutting costs at all costs and toward making maritime labor laws consistent with those for all other workers. Both trends, I believe, are shortsighted.

On the one hand we have an industry struggling to recruit and retain quality crews while at the same time it is eroding seafarers rights and benefits that were specifically designed to attract them to shipboard work

All who work at sea in the service of a ship face particular perils, endure substantial physical hardships, put up with strict discipline, and suffer lonesome separations. They have special lives and work and they need special laws to protect them. These special protections may cost maritime employers a little more than what an employer of land based workers might pay, but the added costs are well worth the expense in terms of recruiting and retaining good people.

Seafarers’ rights were developed by the maritime industry out of a motivation of self-interest. They have survived to today for good reason. The reason of providing incentives to induce good people to pursue a seagoing career is as valid today as it was centuries ago.