On 12 June 2023, the International Seafarers’ Welfare and Assistance Network published its Spotlight on Q1 2023. Notably, and perhaps worryingly, it showed that there had been a substantial quarter by quarter increased general trend in cases of abuse, bullying, harassment or discrimination (cases being up by almost 50 per cent) on ships, with one of the key areas of complaints being from yacht crew, where such cases increased by 125 per cent in that period.
Karen Passman of Impact Crew explains that the exceptionally high increase in the yacht sector in this period may in part be explained by the fact more yacht crew are coming forward since the dedicated yacht helpline was set up in 2020. This dedicated helpline is to be welcomed, but the level of reporting should be a cause for alarm in the superyacht industry.
Karen notes that sometimes it may simply be the case that crew “banter”, occurring as it does in a pressured environment involving a multi-generational, multi-national and multi-cultural crew, goes too far. She explains it is better to deal with such issues early on as ignoring the same can be seen as condoning it, which can be all the more problematic. Nipping these behavioural issues in the bud is far the better course of action.
This article, however, looks at the maritime issues that employers and crew managers need to understand should a situation or complaint arise.
Commercially operated superyachts governed by the provisions of the Maritime Labour Convention 2006 (MLC) are required to comply with, amongst other things, MLC Title 4, “Health Protection, Medical Care, Welfare and Social Security Protection”. MLC, Regulation 4.3 under that Title provides obligations for Member States to:
Provide occupational health protection and to enable crew to live, work and train on board vessel in a safe and hygienic environment.
Develop and promulgate national guidelines for the management of occupational safety and health on board ships that fly their flag.
Adopt laws and regulations and other measures addressing the matters specified in the MLC
MLC Guideline B4.3.1– Provisions on occupational accidents, injuries and diseases, expands on this to require that account should be taken of the latest version of the “Guidance on eliminating shipboard harassment and bullying”, which is jointly published by the International Chamber of Shipping and the International Transport Workers’ Federation.
Further, MLC Guideline B4.3.6 – Investigations, provides that in relation to any investigations into the causes and circumstances of all occupational accidents and occupational injuries, and diseases resulting in loss of life or serious personal injury, consideration has to be given to, amongst other things, problems arising from bullying and harassment.
To this end, in addition to MLC required Seafarer Employment Agreements for each crew member, the employer or crew management agency of a commercially operated superyacht will commonly have in place:
An onboard anti-harassment and bullying policy;
An onboard complaints and disciplinary procedure (which, depending on the yacht, could include the provisions of the Merchant Navy Code of Conduct (Code). The Code specifically refers, at paragraph 5(b) “Behaviour towards others”, to harassment and bullying as being anti-social behaviour which can place the crew at risk of danger). Further, paragraph 7(xvi) includes in the categories of gross misconduct (for which summary dismissal is the usual outcome), “behaviour which seriously detracts from the social well-being of any other person on board, including but not limited to bullying, harassment, intimidation and coercion”.
Depending on the instigator of the behaviour (which could, for example, occur at the hands of a member of the yacht’s onboard management team thereby rendering it unreasonable to pursue a complaint on-board), it may also be possible for a crewmember affected by bullying, harassment and/or discrimination to report the same to the yacht’s Designated Person Ashore (DPA). A DPA is a requirement of the International Maritime Organisation’s International Safety Management Code (ISM Code). In broad terms, the DPA’s role under the ISM Code in connection with the crew is to provide a link between the management and crew, monitor safety and ensure adequate resources are applied to that end. Since the MLC Title 4 places bullying, harassment and/or discrimination into the arena of safe operations, it follows that these concerns would sit firmly within the remit of the DPA.
If a complaint is raised in relation to matters of bullying, harassment and/or discrimination, then the complaint should be dealt with promptly and reasonably in accordance with the relevant policy documents. It is worth adding that to comply with the principles of ISM safety management these policies need to be regularly reviewed and updated to make improvements based on experiences.
Since matters of bullying and harassment are regulated by the MLC Title 4, if a reasonable investigation is not carried out, the matter could fall to be investigated by Port State authorities.
Further, there is also the possibility that crew members could seek to protect their position externally by litigating matters of bullying, harassment and/or discrimination either in local labour law courts or in the affected crew member’s home labour law courts or tribunals. This is certainly possible for British crew working abroad if their employment is based in the UK, which can occur notwithstanding that the crew member works abroad following the case of Windstar Management Services Ltd v Harris ; the point falls to be determined, on a case by case basis, in the UK’s Employment Tribunal system by reference to a multifactorial test, rather than automatically available.
Furthermore, crew management businesses have an excellent network and knowledge of the way in which yachts are operated. Yachts (and their captains) develop a reputation, good or bad, based upon the way they are operated. A yacht with a reputation for being lax in relation to its crew standards not only has a cultural issue to be addressed; it also runs the risks that it will not get the best crew and/or that yacht managers may refuse to deal with the yacht. And, as Karen Passmen explains, good crew will vote with their feet.
In conclusion, with such complaints rising, it will be up to employers, and crew and yacht managers to deal with the complaints properly: a failure to do so may leave the yacht exposed in relation to a variety of legal risks, not to mention finding it difficult to recruit and retain crew.