Independent Commentary

5 April 2019

“The case highlights a number of wider issues which may well shape future conduct of business in light of the emerging and the indisputable threat to life of the COVID-19 virus.“

London. UK. During the COVID-19 pandemic, while ship owners and charterers continue with daily business undertaking charter-parties for the movement of goods around the globe, the effects of the coronavirus crisis are increasingly highlighting new management challenges and competing interests between commercial imperatives to deliver contracts, and the health, safety and welfare of crew.

This tension is resulting in disputes whereby some experienced Masters are taking over-riding decisions invoking Master’s Authority (under the International Safety Management Code and applicable Safety Management System) in the best interests of their crew, bringing them in direct conflict with owners’ business interests. This notes that the Master is in overall command of all personnel and operations aboard the ship.

MV TOMINI DESTINY

First reported by the charity on 1 April 2020, at the time of writing, the ongoing case of the MV Tomini Destiny currently offshore Chittagong Port, appears entrenched between parties with the Indian Master taking a resolute stand supported by his crew of 21 Indian seafarers.

The Master has effectively drawn a ‘line in the sand’ for limiting exposure of his crew to potential COVID-19 infection during discharge of their cargo off Chittagong Port, Bangladesh, after concerns were raised with the owners of the potential for close interaction with high numbers (up to 60) of local stevedores who would ordinarily remain onboard and live in-board during the off-load.

The Master’s approach and his professional view of the necessary protection of his crew remains in dispute by owners and related interests. This includes his rigging of razor wire to prevent access to the vessel, closure of hatches and request for off-load away from the port with limited numbers of stevedores.

From information voluntarily disclosed to the charity it would appear that the Master’s current position is being viewed as unreasonable and over-cautious, while other vessels allegedly continue day-to-day operations in the port and anchorages, though recent North P&I COVID-19 updates dated 03/04/2020 for Bangladeshpaint a more restrictive picture, including reporting that: “Chittagong Port Authority announce suspension of crew changes of Merchant Ships calling at Chittagong Port for eight (8) weeks from 21 March.”

In this current matter, Human Rights at Sea has been provided voluntary proffered access and insight into what could be a defining crew-owner dispute in the current pandemic that has now extended to the involvement, awareness and inclusion of the Indian Government through the Director General Shipping, the Indian High Commission in Bangladesh, Port authorities, Stevedore Unions, Indian unions, the ITF, the Marshall Islands flag State Administration, P&I interests and civil society.

The flag State Administration has been asked by the owners to mediate, while the Master and crew maintain constant communication with stakeholders offering what they state are the only workable solutions for the safe off-load as set against taking all reasonable and necessary steps to prevent (not to minimise) COVID-19 infection of the crew.

The Master asserts his position based on having been in command since 7 September 2019, his first-hand experiences of the tidal waters around Chittagong Port, the general conduct of off-loading operations in the port, the threat of COVID-19 in Bangladesh, and his home nation State’s advice.

STAKEHOLDER APPROACHES

Out of professional courtesy, Human Rights at Sea has been in direct contact with owner’s representatives, P&I interests, the flag State Administration, and passed information to the charterers providing evidence from the Master’s perspective and raising fair questions to ensure a wider factual picture has been placed on the record. The charity has also requested responses to a number of crew allegations raised.

For a balanced perspective, the charity formally contacted the CEO, Mr. Nitin Mehta by email on 1 April 2020, and received a representative’s response on 3 April.

“The safety, health and wellbeing of our seafarers is our number one priority and our management and technical teams are in constant communication with all our seafarers supporting them and their families as we navigate the complicated challenges the COVID 19 pandemic presents.”

“Tomini Shipping do not accept the allegations of the Master and Crew onboard Tomini Destiny; are in communication with the relevant maritime authorities and will respond in due course.”

The charity responded 3 April, requesting explanations relating to a series of  allegations which revolved around the central point that: “the evidence we have to date points to an experienced Master taking a reasonable and necessary command position based on the context of the off-load, the growing COVID-19 pandemic, and his main concern for the safety and welfare of his crew.”

Following further email exchanges, the owner’s representative closed the discussions with the charity on the morning of 4 April. They officially stated:

“Tomini Shipping care utmost about our crew, their safety, health and wellbeing.”

“We have adhered and complied with every regulation, addressed all the concerns raised by Tomini Destiny and are currently working with the relevant maritime authorities and bodies.”

“We consider this an internal matter and will not be in a position to comment further.”

HIGHLIGHTED ISSUES

The case highlights a number of pertinent issues in light of the emerging and the indisputable threat to life of the COVID-19 virus:

  • The weighting of commercial interests over crew welfare standards, as set against emerging COVID-19 restrictions during commercial loading and discharge operations.
  • Fair and reasonable challenge of crew towards management for perceived, or actual threats to their health, welfare and their right to life stemming from potential, or actual COVID-19 infection.
  • Freedom of speech by crew.
  • Freedom of speech, including fair and reasonable reporting by civil society, and welfare organisations.
  • Transparency of crew welfare disputes as set against the public interest of the effects of the COVID-19 crisis on global shipping activities.
  • Public and transparent support for fundamental human rights protections for crew by owners, charterers and flag State Administrations.
  • Independence of mediation.
  • Conduct of crew management, use of personal data and access to Next of Kin outside of emergency reporting.
  • Scope, scale and availability of COVID-19 insurance cover.

HUMAN RIGHTS AT SEA COMMENT

The current matter, which was brought to the the charity’s attention as a direct and voluntary request for independent support from concerned seafarers, has highlighted the pressures placed on a Master (and his crew) when exercising their professional duties under difficult circumstances exacerbated by the COVID-19 pandemic.

It also raises the key point of the application and weighting of the Master’s authority, and the ability to reasonably assert it without undue pressure being applied that could otherwise be viewed as harassment and duress in order to meet commercial objectives.

From the perspective of Human Rights at Sea, crew welfare, health and personal safety, including the vessel’s safety, must come first. All other considerations must take a secondary position respecting the professionalism and authority of a competent employed Master and crew.

ENDS.