An Overview Of The Legal Framework For The Protection Of The Rights Of Seafarers In Nigeria -By Oyetola Muyiwa Atoyebi & Pwaveno Ditto

INTRODUCTION

A seafarer is an individual employed by a shipowner to work aboard a marine vessel at sea. They serve as the live-wire of any vessel and it is highly essential that they enjoy protection peculiar to the nature of the terms of their employment to prevent exploitation.

This article will, therefore, examine the legal framework for their protection, juxtaposing legal provisions with available realities and practical effectiveness.

RIGHTS OF SEAFARERS IN NIGERIA: LEGAL EXPECTATION

By the provisions of Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as amended, Seafarers, like all other members of the society enjoy the basic Fundamental Human Rights contained therein seeing as these rights are inherent. It should however be noted that although the Constitution provides for Human Rights, the principal legislation that protects the rights of seafarers in Nigeria is the Maritime Labour Convention, 2006 usually referred to as the MCL 2006.Though a 2006 Convention, it was ratified by Nigeria on 18^th June 2013 and it provides for living and working standards for all seafarers. The Merchant Shipping Act 2007 also contains provisions for the protection of the seafarer.

The rights chiefly provided for by the MCL 2006 and the Merchant Shipping Act 2007 include:

1.Right to fair wages

2. Right to hours of work and rest

3. Right to leave

4. Right to compensation

5. Right to favourable living conditions

6. Right to Medical care

Right to fair wages

Section 151 of the Merchant Shipping Act provides that seafarers and seamen aboard Nigerian ships are entitled to wages and they shall also not be expected or required to subscribe to any agreement intended to cause them to forfeit their wages or be precluded from recovering same.

Section 152 of the Merchant Shipping Act further provides that in the event of the loss of a ship, the seafarer is still entitled to wages for the job he has completed. Any agreement between the seafarer and ship owner that seeks to negate this right shall be deemed to be void. This right is extensively couched to include the right to wages even where freight is not earned and payment of wages even where the seafarer is dead[1]. In the event of a default by the shipowner or master of the ship, a seafarer can institute a summary proceeding for an account of wages and damages.

Right to hours of work and rest

The Guidelines for the development of tables of seafarers’ shipboard working arrangements and formats of records of seafarers’ hours of work or hours of rest of 1999 developed by the International Maritime Organization and the International Labour Organization Guidelines on fatigue (MSC.1/Circ.1598) provide that a seafarer should be allowed adequate periods where he is not expected to be on duty or at the pleasure of the Shipmaster. It should however be noted that routine breaks are not included under the scope of hours of rest.

The Maritime Labour Convention prescribes eight hours a day for work, to be accompanied by at least a day of rest and a maximum of 14 hours of work and a minimum of 10 hours of rest in every 24-hour window.

Right to leave

The leave granted to seafarers is known as shore leave. The International Labour Organization provide that every member of a ship is entitled to annual leave with pay which shall be a minimum of 30 days for every one year of service. This leave comes with pay and excludes public holidays, breaks due to illness or compensatory leave[2].

Right to compensation

Seafarers are entitled to compensation where there is damage or injury or termination of employment occasioned by the destruction of the ship. This compensation is payable by the shipowner and does not preclude the seafarer from any other claim available under relevant local laws or regulations.

Right to favourable living conditions

Due to the conditions of the work environment of seafarers aboard ships and the strenuous nature of their jobs, it is important to ensure that their living conditions are favourable, or at the very least, comfortable. The guarantee of a sane working and living environment for seafarers is often ignored by shipowners and masters. The seafarer is however entitled to institute an action for claims where the working condition has adversely affected him.

Right to Health and Safety

Seafarers are usually aboard sailing vessels and access to medical care in a vessel at sea is nearly impossible without the provision of same by the employer. It is therefore the duty of the employer to provide adequate facilities and personnel to ensure that the health and medical needs of seafarers are promptly attended to. This is imperative because the sea makes the human body more susceptible to certain illnesses and the proximity of crew member make communication of illnesses very rapid. This becomes the obligation of member states of the International Maritime Organization Convention when the Ship is onshore. Every ship is also expected to have a medicine chest[3].

The right to safety is not only limited to health. The seafarer has a right to remove himself from harm’s way when he reasonably suspects that his body or health would be harmed. This right also indemnifies a seafarer from fear of termination of employment on the basis of the complaint of health and safety conditions.

RIGHTS OF SEAFARERS IN NIGERIA: REALITY

Reports however show that seamen in Nigeria are one of the least paid in the world as no Nigerian seaman earns anything close to the #388,000 monthly minimum wage set by the International Labour Organisation despite efforts by seamen unions to reach an agreement, with the few lucky ones earning an average of #250,000 and the unlucky ones suffering from unpaid wages.

The breaks that ought to be viewed as the right of every seaman are considered a privilege and not a right aboard Nigerian ships with vessels inadequately staffed and seafarers being overworked. A major contributory factor to this sad state of affairs is the poor implementation record of the rights of seafarers in Nigeria, with many unwilling to enforce their rights for fear of failure and eventual unemployment. This also contributes to the bad working condition and little adherence to safety precautions and health measures provided by the International Maritime Organization.

The right to annual leave is but a fairy tale for Seamen in Nigeria as it is only granted at the pleasure of the shipowner. Many ship owners in Nigeria threaten seafarers with unpaid leave, making them reluctant to make use of this right.

Maritime Workers Union of Nigeria and the Senior Staff Association of Communication, Transportation and Corporation carried out protests for about six and half hours to express their displeasure in 2018 with port activities grinding to a halt which led to the Collective Bargaining Agreement of 2019.

LEGAL FRAMEWORK FOR THE PROTECTION OF THE RIGHT OF SEAFARERS IN NIGERIA

Domestic Maritime laws in Nigeria scarcely pay attention to the rights and welfare of the seafarer and most rights are derived from the International Maritime Organization. Nigeria is one of about 176 countries that are members of the International Maritime Organization and is a party to the International Convention for the Safety of Life at Sea (SOLAS), International Convention on Standards of Training, Certification and Watch-keeping for Seafarers (STCW), International Convention for the Prevention of Pollution from Ships (MARPOL) and Maritime Labour Convention (MLC), regarded as the four pillars of the Organization.

In Nigeria, however, domestic legislations and agreements which protect the rights of seafarers include the Nigerian Maritime Administration and Safety Agency (NIMASA) Act 2007, which focuses on maritime safety and, by extension, the safety of seafarers. Section 22 of the Act which provides for the duty of the Agency includes establishing maritime training and safety standards which also cover the safety of seafarers, welfare of maritime labour and enforcement of conventions on maritime law ratified by the nation. The Merchant Shipping Act and the Cabotage Act which are the foremost Maritime legislations in the Country scarcely provide for the rights of seafarers.

This led to the Collective Bargaining Agreement signed in 2019 by The Seaport Terminal Operators Association, The Nigerian Maritime Administration and Safety Agency and other stakeholders under the supervision of the National Joint Industrial Council following protests by seafarers and other port workers. In spite of this Agreement and talks of review, a lot is still left to be desired in the protection of workers who serve as the live-wire of an Industry and contribute about 80 per cent to the growth of the commercial industry in the world.

CONCLUSION

These rights in relation to an emerging industry such as Maritime, are to ensure the protection of the vulnerable members of the industry who can easily be exploited. The effectiveness of the existence of these rights is, however, not as laudable as its inclusion, as many seafarers are unaware of these rights or reluctant to enforce them for fear of termination of their employment, especially in Nigeria.

SNIPPET

It is highly essential that seafarers enjoy protection,peculiar to the nature of the terms of their employment,to prevent exploitation.

KEYWORDS

Admiralty, Maritime, Seafarer, Ship owner, Ship master, Rights of seafarer, International Maritime Organization.

AUTHOR: OyetolaMuyiwaAtoyebi, SAN

Mr.OyetolaMuyiwaAtoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Corporate Law Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Pwaveno Ditto

Pwavenois a member of the Dispute Resolution Team at OMAPLEX Law Firm. She also holds commendable legal expertise in Corporate Law Practice.

She can be reached at pwaveno.ditto@omaplex.com.ng

[1]Section 153 Merchant Shipping Act

[2]C146 – Seafarers’ Annual Leave with Pay Convention, 1976 (No. 146)

[3]C164 – Health Protection and Medical Care (Seafarers) Convention, 1987 (No. 164)