Seafarers' Rights Face a Worldwide Crisis
by Douglas B. Stevenson

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 more than what land-based employers might pay, but these costs are necessary for recruiting and retaining good people.

The merchant maritime industry is facing a worldwide crisis in attracting people to and retaining them in a shipboard career. There is a direct relationship between seafarers' rights and recruitment 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. However, 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.

"Maintenance and cure" - the coverage of medical care and living expenses when a seafarer becomes sick or injured - is one of the many rights that the law accords to seafarers. It 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.

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 attempts to erode seafarers' rights to maintenance and cure. For example:

• The Center for Seafarers' Rights recently heard 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 ship owner 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.

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.

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.

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 are shortsighted.

Douglas Stevenson is Director of the Center for Seafarers' Rights (CSR) at The Seamen's Church Institute of New York and New Jersey (SCI), the world's foremost legal and advocacy program for needy merchant mariners. He is also a member of Christ Episcopal Church in Short Hills, New Jersey, and a member of the Advisory Council to the Anglican Observer to United Nations. Before joining SCI in 1990, he served 20 years as a U.S. Coast Guard Officer, retiring as a Commander. While in the Coast Guard, Mr. Stevenson served in a variety of legal and operational assignments, including command at sea and a diplomatic post at the United States Mission to the United Nations. He is a graduate of the United States Coast Guard Academy and the University of Miami School of Law.