Getting personnel

INDIA’S maritime sector has a prosperous future thanks to a steadily developing economy, a unique geographical position, information and technological development and, most importantly, a huge educated workforce.

Large numbers of Indian officers and crew are employed on both Indian and foreign-flag ships. This huge workforce is clearly vulnerable to risk and exposure to liability, which is why a great deal of time has been devoted at both national and international level to the proper training of seafarers, and to the protection of their social and economic needs.

Indian domestic law v international law

The United Nations Convention on the Law of Sea 1982 (UNCLOS) provides guidelines with regard to maritime labour. It gives states the power to administer, control and regulate legal, technical and social factors affecting their national-flag ships. It also directs states to assume jurisdiction in connection with the law relating to ships, masters, officers and crew in respect of administrative and technical matters concerning the ship.

Under UNCLOS, states are empowered to make rules to ensure safety at sea, and regulations covering manning, labour conditions and crew training. These measures include those necessary to ensure the recruiting of appropriately qualified masters, officers and crew.

The principal guidelines laid down by UNCLOS are supported by 41 conventions and 29 recommendations exclusively in respect of maritime labour standards. India has ratified the following conventions:

1. Minimum Age (Trimmers and Stokers) Convention 1921
2. Medical Examination of Young Persons (Sea) Convention 1921
3. Seamen’s Articles of Agreement (Sea) Convention 1926
4. Merchant Shipping (Minimum Standards) Convention 1976

The Merchant Shipping (Minimum Standards) Convention 1976 lays down minimum internationally accepted labour standards for merchant ships. It aims to eliminate substandard vessels, to improve the efficiency and safety of navigation, and to enhance measures to protect the marine environment and seafarers’ interests in respect of health, safety, working conditions and trade union activities. India ratified this convention in 1996.

Trade unionism in the maritime industry

The right to form associations and unions is widely recognised by maritime nations and is protected by Article 19 (C) of the Constitution of India. The right to strike and lock out is also protected under Article 19 (B). In most countries, shipowners and seafarers have organised themselves by forming associations and unions for the purpose of balanced collective bargaining. Such is true of India, where there are a number of such organisations and unions to ensure that collective bargaining is practised between in regard to all issues relating to wages and other terms and conditions of employment except those which are governed by legislation or other forms of statutory regulations. When taking policy decisions, the government usually consults these organisations.

The main aims and objectives of the unions are to improve the working and living conditions of their members both on board and ashore. The unions are stable organisations and representative of the large majority of Indian seafarers. The Indian government has taken a keen interest in promoting the growth of trade unionism among seafarers by recognising these unions. The unions have functioned effectively in collective bargaining and, as a result, seafarers have seen their working conditions improve. They continue to do so.

Generally, grievances and disputes are settled by negotiations between the unions and the Indian National Shipowners’ Association. Unresolved disputes are referred to arbitration and tribunals appointed by the government.

Safety and welfare provisions

India has incorporated the provisions of the International Convention on Standards of Training, Certification and Watch-keeping for Seafarers, 1978 (STCW) by revising the examination/certification rules under the Merchant Shipping Act 1958.

The government of India has also adopted various measures for promoting the welfare of seafarers. Section 218 of the Merchant Shipping Act provides for the constitution of a Statutory National Welfare Board for Seafarers to advise the government on welfare measures for seamen. On the recommendation of this body, the following major steps have been taken;

• Social security schemes for seamen regarding provident fund and gratuity schemes;
• Seamen’s Welfare Fund Society for financing welfare measures for seamen;
• Hostels-cum-clubs for seamen at Mumbai, Madras, Calcutta and Cochin;
• Establishment of levy on shipowners for providing a continuous source of revenue for financing seamen’s welfare projects;
• Free medical aid facilities and treatment to seamen.

Discipline

Part VII of the Merchant Shipping Act 1958 includes provisions with regard to discipline. These provisions deal with misconduct on the part of the seamen such as desertions, absence without leave, neglect of duty, wilful disobedience, smuggling and other offences, and prescribe varying fines and lengths of imprisonment for such misconduct. An entry has to be made in the official logbook of all such offences, duly signed by the master, mate and one of the crew.

Whenever a seaman is the subject of an adverse report by the master, his case is brought by the director of the Seaman’s Employment Office before a Disciplinary Sub-Committee which consists of representatives of shipowners, seafarers and the government. The provisions comply with the principles of natural justice, and the seaman in question is given the opportunity to state his case in person or in writing before the sub-committee. The director takes action on the basis of the committee’s recommendation, which is generally unanimous. The seaman has the right to appeal to the director-general of shipping, who is the appellate authority in this matter.

Under the disciplinary provisions set out in the Indian Merchant Shipping Act, a master or seaman is also liable to imprisonment and/or fines for misconduct. Additionally, under the terms of the agreement between the Maritime Union of India and the Indian National Shipowners’ Association, a shipowner has the right to take disciplinary action against any officer found guilty of misconduct. The guilty officer may be warned or censured, reduced in seniority or demoted, deprived of his annual increment, suspended from service or discharged or dismissed from service, depending upon the gravity of his misconduct.

Industrial injury

The liability of shipowners to pay compensation in respect of injury to or death of seafarers caused by accidents arising out of and in the course of employment has been widely accepted. India has not ratified the ILO convention, but statutory provision has been made in its Merchant Shipping Act under which the articles of agreement should stipulate inter alia the compensation payable by shipowners. The periodic agreements between Indian as well as certain foreign shipowners and seafarers’ unions contain explicit provisions regarding death and disability compensation.

The legal provisions and statutory protections are intact, but the real problem lies with enforcement. Grievances are arising mainly because of the lax implementation of existing legal principles and standards. But the legal scenario in India is changing, with reforms in the judiciary, amendments to the civil procedure code and the new arbitration act. The latest improvements, coupled with the internationally compatible regulatory framework in the maritime sector, are good news for personnel employed in the sector.