Lloyd's Maritime and Commercial Law Quarterly
SEAFARERS IN THE MODERN MARITIME INDUSTRY: THE NEED FOR REFORM
Thomas A. Mensah *
Changes in ship ownership over the past half century have exposed seafarers to serious abuse. To remedy the situation measures have been taken, mainly by the adoption of international regulations and standards in IMO and ILO. Although well intentioned, these measures have significant limitations; so further legal and practical reforms need to be considered. To be effective, reforms should target all actors whose acts and omissions affect the seafarer. These include flag and port states, crew supplying countries, shipowners, banks and international organizations. One measure worth considering is the establishment of an emergency fund to assist seafarers in critical situations
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The problems
The traditional paradigm of shipping and ship ownership was based on the expectation that the shipowner, the ship and persons serving on board the ship would, for the most part, have the same nationality and thus would be subject to the same legal norms and regulatory mechanisms. Hence, under the traditional system of ship registration, a shipowner normally registered his ship under the laws of his own country, with the result that the nationality of both the owner and the ship was the same. Furthermore, the crew—or at least the most important members of the complement, including the master—would also be of the same nationality. Under such a system, where there was a breach of the applicable law by either the owner or a member of the crew, the issue would (and could in practice) be dealt with through the mechanisms of the flag state and by reference to the laws of that state.
However, beginning from the second half of the 20th century, profound and continuous changes in the forms of ownership and management of international shipping have resulted in a veritable revolution in the pattern of ownership, control and direction of international shipping, particularly with regard to the larger and more sophisticated vessels used in international trade. These changes have in turn led to a number of major developments. Among these are the following:
1. Ships sailing under the flag of a state are no longer necessarily owned by nationals of that state. This has come about mainly as a result of the development of the “ flag of convenience” (“open registry”) regime. Under this regime, persons who are not in any way connected with a state are, nevertheless, able to register and operate ships under the