Lloyd's Maritime and Commercial Law Quarterly
RESTITUTION ON THE GROUNDS OF DURESS—HANDLE WITH CARE
The Evia Luck
Factual background
For many years the International Transport Workers’ Federation (“I.T.F.”) has been attempting to improve the terms and conditions of seamen working on board ships flying flags of convenience. The tactic has been to wait until the ship enters a port within a jurisdiction whose labour law is tolerant of collective industrial action. The owners are then informed that, unless certain conditions are met, port employees will “black” the ship, thereby preventing her leaving the harbour. The I.T.F.’s conditions for the lifting of the blacking require the owner to agree to employ the seamen on the I.T.F.’s standard terms and conditions and to make certain payments to the I.T.F. These payments represent inter alia the back pay to which the seamen would be entitled had the I.T.F.’s standard terms been applicable throughout the voyage. In July 1979, these tactics were employed against the Liberian-registered tanker Universe Sentinel when she docked at Milford Haven. The ensuing litigation1 eventually reached the House of Lords, where the plaintiffs successfully reclaimed the contributions which they had been obliged to make to the I.T.F.’s welfare fund. This was, however, a very limited victory. In the light of the earlier decision of the House in N.W.L. Ltd. v. Woods,2 the owners had been forced to accept that all other payments were irrecoverable due to the wide-ranging immunity from liability in tort granted to collective industrial action by then current Labour legislation of the United Kingdom.3
In 1979, however, the landscape changed with the election of the first of a series of Conservative administrations committed to more stringent legal regulation of industrial action. Of particular concern to the I.T.F. was s. 17 of the Employment Act 1980, which limited the immunity previously afforded to secondary action. Broadly speaking, secondary action occurs when a trade union persuades its members working for one employer with whom it is not in dispute to refuse to provide services to another with whom it is in dispute. It was on exactly this tactic that the I.T.F.’s campaign depended. Pressure was exerted upon owners by persuading port
1. Universe Tankships Inc. of Monrovia v. International Transport Worker’ Federation (The Universe Sentinel) [1983] 1 A.C. 366.
2. [1979] 1 W.L.R. 1294.
3. Specifically the Trade Union and Labour Relations Act 1974 (hereafter T.U.L.R.A. 1974), s. 13.
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