Following the WHO advice, shipowners of Hong Kong flag vessels and their P&I Clubs may wish to reassess their obligations in respect of the health and safety of their seafarers.

As a matter of standard practice, seafarers employed by Hong Kong flagged vessels are subject to Seafarers Employments Agreements (SEA) and Collective Bargaining Agreements (CBA) (which are submitted to the Marine Department Crew Affairs Department). These expressly incorporate the Hong Kong Employees’ Compensation Ordinance (Cap.282) (ECO) and the international Maritime Labour Convention 2006 (MLC). Under the ECO and case law in Hong Kong, regardless of the nationalities of the seafarers and any arbitration clause in the individual employment contract the particular seafarer might have signed, the Hong Kong Court will still assume jurisdiction to hear any matter and the compensatory regime under ECO will apply. Apart from the protections under the ECO, seafarers are also entitled to the benefits pursuant to the applicable articles under the MLC. 

Amongst others, an immediate issue shipowners may face relates to crew changes. Whilst we understand some clients are considering the complete stoppage of crew changes so as to substantially reduce the risks of the spread of 2019-nCoV, such steps may contravene the MLC, CBA and SEA which provide that the service period for seafarers onboard vessels shall not exceed 12 months in total. In response to an enquiry from the Hong Kong Shipowners’ Association, the Hong Kong Marine Department replied that they are now looking into this issue and will work out measures. The Hong Kong Marine Department may handle each enquiry on a case by case basis and you can make such enquiries by writing to the following email address: ss_css@mardep.gov.hk.⁵

Until legal and regulatory guidelines are in place to assist with clarification of employment obligations, in order to ensure the well-being of seafarers during this crisis, the International Trade Federation (ITF)⁶ has issued recommendations following the WHO advice and, in respect of seafarers, referring to the guidelines issued by the International Health Maritime Association. The International Health Maritime Association has the following specific comments for the maritime industry, seafarers and dock workers:

• Do not restrict embarkation/disembarkation of seafarers in non-affected ports
• Do not restrict necessary ship visits by port agents, chaplains, service personnel and others.
• Do not visit food markets in China and avoid provision of fish and poultry in China.
• Do not consume raw eggs, milk, meat.
• Observe strict food hygiene to avoid cross contamination
• Ensure facial protection is provided for all crew (5 pieces /per person)
• Provide influenza vaccination, alcohol-based hand sanitiser and facial protection for ship inspectors and other crew who travel to China.
• If a crew member on board falls sick and has been travelling to affected areas 2-12 days before embarkation, the person must stay in his/her cabin.
• If a crew member is sick on board a ship, fill out the maritime declaration of health and notify the relevant port authority and consult a healthcare providers in the next port. 

Shipowners should be aware that most charterparties contain a warranty that the shipowner shall maintain throughout the charter period a full and efficient complement of master, officers and crew. If the Master or other crew members were to become incapacitated due to 2019-nCoV, and relief crew not be made available, there is a risk of breach of the charterparty if the efficiency of the seafarers is in issue.

Shipowners should also be aware that there is a risk of an unsafe port claim if crew are infected at one port with 2019-nCoV, and the ship is subsequently subject to quarantine at a second port. Both the above mentioned warranty and unsafe port issues are specialist issues and shipowners and charterers are recommended to seek advice from the Reed Smith shipping team.

Last but not least, as shipowners are generally responsible for seafarer’s health and safety they should ensure that sufficient precautions and protective measures are in place to avoid the risk of infection. Shipowners should liaise with their P&I clubs so that all potential risks related to seafarers in this respect are addressed.

Resources

World Health Organization

International Maritime Health association

ITF Seafarers

Hong Kong e-Legislation

1. World Health Organization
2. Whitehouse.gov
3. The Government of the Hong Kong Special Administrative Region
4. The Straits Times
5. Marine Department, The Government of the Hong Kong Special Administrative Region
6. International Transport Workers' Federation