SUBJECT: MARITIME LAW AND LAW OF THE SEA

Definition of ‘seafarer’ under Maritime Labour Convention,

2006 and its implication on Maritime Security Personnel.

Submitted by
Bhoomika GS - 16040141030
Batch 2016 - 21

Submitted to
Dr. Ramdhass P

Alliance School of Law

Alliance University, Bangalore

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 TABLE OF CONTENTS

I. INTRODUCTION……………………………………………………………………………….1
I.I. BACKGROUND ……………………………………..……………………………………1
I.II. RESEARCH QUESTION…………………………………………………………………1
I.III. HYPOTHESIS……………………………………………………………………………1
I.IV. LITERATURE REVIEW…………………………………………………………………2
I.V. OBJECT AND SCOPE OF THE STUDY ..………………………………………………2
I.VI. RESEARCH METHODOLOGY …………………..……………………………………2
II. EVOLUTION OF RIGHTS OF SEAFARERS………………………………………………….5
III. PRIVATELY CONTRACTED ARMED SECURITY PERSONNEL (PCASP) .……………….6
IV. DEFINITION OF ‘SEAFARER’………………………………………..………………………9
V. THE EFFECT OF MLC ON PCASP………………………………..…………………………12
VI. POLITICAL CONTROVERSY OF CLASSIFICATION AS SEAFARERS OR PCASP …….16
VII. RECOMMENDATIONS AND CONCLUSION………………………………………………19
VIII. BIBLIOGRAPHY………………………………………………………………….…………21

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 I. INTRODUCTION

1.1. BACKGROUND
The natural, technical and social risks in the maritime employment explain the necessity of adoption
of special standards for the seafarers. The Maritime Labour Convention (MLC), adopted by
International Labour Conference (ILC), 94th (Maritime) Session in 2006, entered into force in
August 2013. The MLC is intended to compliment the three key maritime conventions, SOLAS,
MARPOL, STWC and to become the fourth pillar of the international regulatory regime in the
maritime field. The MLC is regarded as a true achievement in the international regulatory policy for
the following reasons: first, by the way its form MLC combines both hard law and soft law
approaches in a single legal instrument; secondly, from the perspective of the adoption of the treaty,
MLC is an outstanding international agreement because it codifies labour standards for an entire
maritime industry, it has received unanimous approval not only from the states but also from the
governmental partners of this industry.
A key issue that has emerged with the implementation of the Maritime Labour Convention 2006
(MLC 2006), with broad implications for the industry’s future, is whether security personnel should
be regarded as seafarers. The issue mainly arises because the convention provides a broad definition
of the term ‘seafarer’, which is sufficiently extensive that it permits categories of persons who are
not traditionally described as crew members of merchant vessels to fall under its scope.

1.2. RESEARCH QUESTION

1. Whether the extensive nature of definition of ‘seafarer’ allows for the inclusion of Privately
Contracted Maritime Security Personnel to considered within the ambit of Maritime Law
Convention, 2006?
2. Does inclusion of the Private Maritime security under MLC improve the position of these
workmen?

1.3. HYPOTHESIS
The convention provides a broad definition of the term ‘seafarer’, which is sufficiently extensive
that it permits categories of persons who are not traditionally described as crew members to fall
under its scope. The inclusion of and hence maritime security personnel can be included under the
scope of the definition of ‘seafarer’ given in the Maritime Labour Convention, 2006. This will
enable the privately armed maritime security personnel to gain access to better working rights.

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1.4. LITERATURE REVIEW
The various sources which have been majorly referred to in this paper includes “The Maritime
Labour Convention 2006- a Long Awaited Change in Maritime Sector” by Oana Adascalitei
wherein a clear idea of the objectives of Maritime Labour Convention has been discussed. It speaks
about the importance of the Convention and how it changed the position of the seafarers with
regards to their working standards and other basic rights. The journal, “Seamen and the
International Labour Organisation” by Joseph P. Goldberg provides the history of evolution of law
with regard to workmen at sea and also includes information about flags of convenience.
In “ Investigation of the maritime Labour Convention and its legal effects for countries”, by Abbas
Harati Mokhtari discusses the terms of acceptance and implementation of MLC. Mainly the article,
“Private Armed Guards as seafarers under the Maritime Labour Convention 2006”, by Myrto Vasili
has been referred to. This article in detail analyses the effect of inclusion of maritime security in the
definition of seafarers as given in the Convention.

1.5. OBJECT AND SCOPE OF THE STUDY

The objective of this research paper is as follows :
• To determine the position of maritime security personnel in maritime law by referring to various
Conventions.

• To understand and analyse the interpretation of the definition of ‘seafarer’ as given in Article II(1)
(f) of the Labour Law Convention, 2006.
• To determine whether privately contracted armed security personnel (PCASP) fall under the
ambit of Labour Law Conventions and the understand its implication.

1.6. RESEARCH METHODOLOGY

To answer the proposed research questions, I have derived my information from secondary sources
such as books, articles, journals and legal databases and other forms of written material on the topic.
The information so collected has been described and evaluated through narrative analysis.

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 II. THE EVOLUTION OF RIGHTS OF ‘SEAFARERS’

Seafaring is a vital part of human history and progress.1 During the early times, it played a key role
in the humanity’s quest for survival and in the pursuit of wealth, power, knowledge and the mastery
of the marine environment. The construction of vessels capable of confronting the “perils of the
sea” permitted man to venture even further from land in search of fish and other foodstuffs. From
antiquity, ocean shipping fostered trade and travel thereby enriching and diversifying human culture
through the exchange of goods and ideas.2
Contributing immensely to the genesis and the development of ancient civilizations in China, India
and Iraq which had all their beginnings in river valley civilizations, seafaring afforded a very good
opportunity for economic, political and military interactions between and among states. From the
Roman Empire to the Second World War, naval and mercantile fleets made the difference between
defeat and victory in war. While performing commercial activities in times of peace, seafaring
provided the necessary naval fleet and forces in times of war.

Seafaring’s economic dimension is its role in trade facilitation such as in the movement of people,
cargoes and services. Islands of archipelagic states as well as between and among states are inter-
connected or are linked together primarily because of shipping activities.
Following the rapid expansion of the global economy which demanded more fleets to meet the
growing demands of seaborne trade, seafaring has become and continues to become one of the
major backbones of the national economies of ship-owning states and maritime labor supplying
countries. At present, 90 per cent of the total volume of global trade is moved by sea.3 The
metamorphosis of seafaring has evolved to become the most globalised of all industries. Ships now
travel seamlessly from one country to another and are manned by seafarers from different
nationalities. Seafaring has emerged, by its own, not just as a way of living but as a profession. It
can be said that in the past, seafarers’ life was considered difficult and harsh in terms of economic,
social and legal protection. Wages were vital issues sometimes argued out before sailing. Their
wages were not paid until the end of the voyage. When a man deserted, his earned wages forfeited.
There is no doubt that some seafarers were driven by unscrupulous Masters to desert. Seafarers
were also made accountable for damage to cargo during the voyage and their wages taken.3 The

1 Edgar Gold, ‘Maritime Transport: The Evolution of International Marine Policy and Shipping Law’, Washington, D.C,
United States: Lexington Book, 1981 at p.1.
2 William H. Tetley, ‘International Maritime and Admiralty Law’, Quebec, Canada: Blais International Shipping

Publications, 2002 at p.3

3 D. Fitzpatrick & M. Anderson (Ed), ‘Seafarers’ Rights, London’, UK: Oxford University Press, 2005 at p11

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painful epic journey of early seafarers provided some lessons learned. To prevent accidents,
shipboard safety regulations were introduced during the later part of the 17th century. This practice
was not meant to confer rights on seafarers but as a means to ensure safety of navigation with the
main purpose of securing the safety of the ship and the cargoes on board. By the nature of their
employment, seafarers are regarded as belonging to a “special category of workers because they are
always subject to different jurisdictions which they might be brought in contact”.4 The possibility of
abuse then is not remote. It can hence be said that of all sections of the community, seafaring men
have been the most ignored and therefore the worst treated.5

Following the growing concern for the increasing number of casualties and missing persons at sea
and losses of cargoes, the International Maritime Organization (IMO)10 was established in 1948 to
respond to the issue of sub-standard shipping, pollution of the marine environment, and the training
and competency of crews. A number of international regulatory regimes to promote safety of life at
sea and the protection of the marine environment have been adopted under the auspices of the IMO
such as but not limited to the 1974 International Convention for the Safety of Life at Sea (SOLAS);
the 1978 International Convention on Standards of Training, Certification and Watchkeeping
(STCW) as amended in 1995; and the 1966 International Convention on Load Lines (LLC) and
others. Established in 1919, the International Labor Organisation (ILO), on the other hand,
proactively developed international instruments that aim at benchmarking minimum working and
labor standards for workers. Various ILO Conventions and Recommendations intended for seafarers
were adopted but some of them have never entered into force. Others have very low ratification
rate. This situation prompted the consolidation of all ILO Conventions relating to seafarers which
is now the Maritime Labor Convention of 2006.

III. PRIVATELY CONTRACTED ARMED SECURITY PERSONNEL (PCASP)

According to the International Maritime Bureau’s (IMB) official statistics, in 2012 a significant

decrease in the number of pirate attacks was noticed, after several years of continuous escalation.6

Although the decrease cannot be attributed to a single factor, it has been argued that the use of either
military vessel protection detachments or privately contracted armed security personnel (PCASP)

4 IMO, “Guidelines on Fair Treatment of Seafarers in the Event of a Maritime Accident´”, Adopted on 01 December
2005”, Doc. No. A/24/Res.987, 9 February 2006
5 K.X. Li & Jim Mi Ng, “International Maritime Conventions: Seafarers’ Safety and Human Rights”, [2002] 33 J. Mar.

L & Com. 38, at p2

6 ICC Commercial Crime Services ‘Piracy and armed robbery news and figures’ <https://icc-ccs.org/piracy-reporting-
centre/ piracynewsafigures/275-piracynewsafigures>
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may have contributed significantly to this end. It is commonly accepted that PCASP offer quicker,
more cost-effective and on the spot protection against the threat of maritime piracy.7 The maritime
security sector, therefore, built its reputation on the statement that ‘no vessel carrying armed security
guards has yet been successfully hijacked’.

As more and more shipowners employed private armed guards when their vessels transited HRAs,
the international community and national governments progressively altered their position towards
the use of PCASP. In May 2011, through the Maritime Safety Committee, the IMO reaffirmed its
position that ‘it neither endorses nor condemns the use of armed personnel on board merchant ships
and accepted that the carriage of armed personnel was an individual decision subject to the law of
flag States’. As the IMO could not prevent the shipping industry from deploying armed security
teams, it preferred to adopt a number of guidelines in order to ensure that certain minimum standards
were followed. Additionally, nowadays, numerous countries allow their commercial vessels to
carry armed teams in order to provide them with a regulatory framework towards their
employment.

Nevertheless, the decision of shipowners to employ PCASP on board merchant vessels still
remains a complex one. The absence of an applicable regulation and the industry’s self-
regulation dealing with complex legal requirements governing the legitimate transport and use of
firearms on board gives cause for concern. This situation has become even more complicated
following the rapid increase in the use of private maritime security companies (PMSCs), which
creates severe doubts about their capabilities and responsibilities. Therefore, the debate is no
longer focused on whether the use of PCASP should be permitted but instead on how they can
safely be used, with the emphasis on accreditation and accountability.

In its publication entitled ‘Revised interim guidance to shipowners, ship operators and shipmasters’
the IMO noted that: ‘to assess the capability of maritime security companies to carry out a
proposed task; a thorough enquiry regarding their prospective should be undertaken, particularly in
the absence of a robust certification scheme for PMSC’.8 Therefore, when deciding to employ a

maritime security company, shipowners must ensure that they undertake strict due diligence in

relation to the selection of a maritime security company. As the quality of the service delivered
depends to a very great extent on the quality and experience of the individuals who form the

7 Matteo Tondini ‘Some legal and non-legal reflections on the use of armed protection teams on board merchant vessels:
an introduction to the topic’ (2012) Military Law and the Law of War Review 7
8 IMO MSC.1/Circ.1405/Rev.2 ‘Revised interim guidance to shipowners, ship operators and shipmasters on the use of
privately contracted armed security personnel on board ships on the high risk area’ (25 May 2012)
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onboard security team, the quality of the selection and vetting of that team is, thus, essential.
Maritime security companies should demonstrate that they have verifiable, written internal policies
and procedures for determining suitability of their employees. Considering that the quality of
professional training given to the guards is of extreme importance, shipowners should verify that
the maritime security companies have adequate training procedures in place. The records of that
training should give confidence that security personnel have been provided with appropriate
knowledge and skills.

The IMO stressed the importance of well-trained and experienced security teams, as it feared that
excessive use of lethal force would provoke an escalation of violence in piracy-affected areas.
Unfortunately, their fear was realised in two instances. First, in the Enrica Lexie case, Italian
marines on board an Italian oil tanker misjudged a situation and subsequently killed two Indian
fishermen off the coast of India; secondly, in February 2014, two ex-Navy SEALs working for
Trident Group aboard the Maersk Alabama were found dead in their cabin. Autopsies revealed that
they had suffered heart attacks. However, Seychelles police said that there was evidence of heroin
use and that ‘masters should be proactive in getting to know their armed guards. Even though they
are accountable to their employer ashore; while being on board they answer to the ship’s master’.9

During a piracy attack, the armed guards must follow the orders of the master, as he is always in
charge of and ultimately responsible for the safety and security of the ship under the law of the sea.
As a practical issue, however, the master will not always be on watch when pirates attack. Armed
guards, in such circumstances, must act independently based on an agreed plan with the master as
to what is appropriate under various situations. It is within the master’s right to establish such orders
and build a relationship of trust with the armed guards.

For these reasons, it is of great importance to clarify this delicate relationship as clearly as possible
in contracts signed by shipowners and maritime security companies. It is, therefore, crucial
that the contract acknowledges the master’s authority on deciding ultimately whether armed
guards are used for a particular voyage.10

9 Michelle Wiese Bockmann, Alan Katz, ‘Shooting to kill pirates risks blackwater moment’ <http://
www.bloomberg.com/ news/articles/2012-05-08/shooting-to-kill-pirates-risks-blackwater-moment>
10 Aleka Mandaraka-Sheppard, ‘Modern Maritime Law Volume 2: Managing Risks and Liabilities’ (3rd edn Informa
Law from Routledge 2013).
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 IV. DEFINITION OF ‘SEAFARER’

According to Article 2(1)(f) of the MLC 2006, a ‘seafarer’ is ‘any person who is employed or engaged or
works in any capacity on board a ship to which this Convention applies’. The principal intention is to
cover all persons employed or working on board a ship, in any capacity whatsoever, including the
self-employed and those employed by third parties. The convention achieves protection for all
seafarers, of which there are estimated to be 1.2 million worldwide; however, the broad definition
creates concerns because it could encompass within its ambit different groups who are not
traditionally recognised as ship crew members.

Historically, two alternative terms have been used in ILO maritime instruments, namely ‘seaman/

seamen’ and ‘seafarer/seafarers’. The term ‘seaman’ can first be found in the conventions11 adopted

during the 1920s. There are 13 different definitions of ‘seafarers’ contained in ILO maritime

instruments and these definitions may vary, depending on the different objectives and scope that

each convention or regulation tends to serve. Their core compositional elements can be jointly

presented as follows:12 subject; capacity of persons on board; exclusion of persons from the

category of seafarer; nature of vessels on board which seafarers are employed; and exclusion of
certain types of vessels.

Before the adoption and enforcement of the MLC 2006, any personnel on board in addition to the

usual marine crew counted as supernumeraries. However, under the convention, the concept of

supernumeraries no longer exists. All crew are referred to as seafarers. This rather broad inclusion
generates uncertainty concerning the legal status of certain categories of persons who undertake
periods of work on board a ship. In such cases, the flag states have to decide, in their national law,
which categories of personnel on board vessels flying their flag will count as seafarers.13 In the
event that a certain category is not qualified as seafarers, flag states should create a regime under
national law separate from the general law applicable to seafarers in order to protect these
categories of ‘special purpose personnel’, while continuing to observe the minimum standards
provided by the MLC 2006.

11 Conventions No. 8, 9, 22 and 23

12 International Labour Organization, Sectoral Activities Programme High-level Tripartite Working Group on Maritime
Labour Standards ‘Definitions and scope of application provisions in existing ILO maritime instruments and related
texts’ (Second meeting) (TWGMLS/2002/4, Geneva 2002)
13 MLC 2006 Art 2(3)

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Considering the complexity of the issue, the ILO has produced some guidance for governments in
order to clarify the situation by adopting Resolution VII at its 94th (maritime) Session on
Information on occupational groups. The resolution provides various criteria to be taken into
account when member states decide whether specific categories of personnel should count as
seafarers for MLC purposes. The recommendations include the following factors to be considered:

1. the duration of the stay on board of the persons concerned

2. the frequency of periods of work spent on board
3. the location of the person’s principal place of work

4. the purpose of the person’s work on board

5. the protection that would normally be available to the persons concerned with regard to their
labour and social conditions to ensure they are comparable with that provided for under the
convention.

This guidance can prove considerably helpful when it comes to private armed security personnel,
who, based on the above analysis, can be considered as seafarers. In order to illustrate this fact more
precisely, the case of private armed security personnel will be tested with regard to two different
crew categories also engaged on board, namely the stewards and pilots. Bearing in mind the factors
covered by Resolution VII, the situation is as follows.

The existence of an employment contract is the first factor, proving a direct relationship to the ship,
in which the rights and obligations along with the terms and conditions of the employment of the
seafarer are specified. Both stewards and armed guards are hired under a contract; however, private
armed guards are usually under a sub-contract; nevertheless, sub-contracted personnel are not
excluded by the convention, as the shipowner’s obligations towards seafarers on board his ships are
not restricted to those that are directly employed by him. On the other hand, pilots are independent
contractors, meaning that they do not have any employment relationship, direct or indirect, with the
shipowner. Moreover, both stewards and armed guards enter the chain of command. Stewards
belong to the catering department of the vessels’ ranking system. Such a system is essential in order
to ensure smooth coordination of on board operations and promotes proper management strategies.

Upon embarkation, armed guards are responsible for the safe navigation of the vessel while
transiting HRAs. As they become part of the navigation department of the ship, the master has
complete control over them, as he ultimately remains in charge of the safety and security of the
ship, the crew and the cargo. On the other hand, a pilot merely advises the master. In areas where

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pilotage is compulsory, a master fulfils a public law requirement if he hires a pilot. Public policy
considerations of coastal states impose compulsory pilots being on board, as they are responsible
for safe navigation of particular hazards and the avoidance of accidents at the entrance of their
ports. Since the pilot has only an advisory role, the master can choose to ignore his advice;
however, the master cannot discipline or treat the pilot like the rest of the crew, since he does not
enter the chain of command.

Thirdly, based on the duration of their stay on board, stewards are the only category who remain on
board for the entire duration of the voyage. Both private armed guards and pilots are only temporarily
aboard. Nevertheless, armed guards spend a much more extensive period on board the ship in
comparison to pilots. Fourthly, the function of stewards and private armed guards relates to the
commercial purpose of the vessels. Stewards, on the one hand, are important for the vessel to
complete its purpose, as they are responsible for all aspects of the catering department and
maintenance of the sanitary standards on board. Their function is essential for both cargo vessels
and passenger vessels. Private armed guards ensure the safety and protection of the vessel, the crew
and the cargo while transiting HRAs for piracy attacks, whereas the use of pilots is compulsory
when greater skill in the manoeuvring of the vessel is required for entering or leaving overcrowded
ports or narrow channels.

This element easily addresses the factor of the frequency of these categories of personnel onboard.
Stewards are considered part of the crew, necessary for the proper operation of the vessel; private
armed security teams are to be found on almost every vessel transiting pirate-infested waters,
whereas pilots are imposed only in specific areas where coastal states have assessed the risk of
collisions in their navigational waters as high. Lastly, but most importantly, stewards are granted
the same protection as ordinary crew members and pilots can find recourse for their safety issues in
the SOLAS Convention. However, the protection available to private maritime security personnel is
extremely limited; there is no international mandatory regime applicable, the national legislation is
fragmented and self-regulation of the sector is based on soft law guidelines.

It follows from the above that nothing in the MLC 2006 prevents private armed guards from being
considered as seafarers. Caution, however, needs to be exercised in this context as there is no case
law on this point. This analysis further issues regarding, first, the legal and practical implications
such classification entails regarding the rights of private armed guards under the MLC 2006 and,
secondly, whether it is desirable as a result to take into account the consequential economic and
public policy considerations.
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 V. THE EFFECT OF MLC 2006 ON PCASP

If private armed guards are to be considered as ‘seafarers’, they will be entitled to seek protection in
accordance with the rights conferred on seafarers by the Maritime Labour Convention 2006. This
protection embraces a wide range of benefits in order to ensure decent working and living
conditions. In the following paragraphs, the corresponding rights to the function and employment of
armed guards will be considered, following the order found in the convention.

First, all seafarers need to have a medical certificate to verify that they are medically fit to perform

their duties14 and to have completed a competent training programme or certification to perform

those duties.15 A qualified, independent medical practitioner must issue these medical certificates.
The certificates must meet the accepted international standards, such as those issued to comply with
the requirements of the International Convention on Standards of Training and Watchkeeping for
Seafarers (STCW).16The International Transport Workers’ Federation (ITF) underlines that the
purpose of these certificates is to ensure that security operators are not suffering from any condition
that would: (a) be made worse by work at sea, (b) make them unable to perform their job, and (c)
make them a danger to others. Moreover, the seafarers must have completed the necessary training
to carry out their duties on board, as specified in the STCW. This would mean that security teams
should have appropriate medical training and qualification certificates for their particular job.

Secondly, seafarers are entitled to a fair employment agreement or contract setting out the terms and
conditions of their employment.17 It must be signed by both the seafarer and the employer, be easy to
understand and legally enforceable. On the employer’s side, it can be signed by the shipowner, the
shipowner’s representative or another person acting as the shipowner, such as the ship’s manager, agent or
bareboat charterer. Given the globalised character of the manning sector, the recruitment process can
be done in two alternative ways: first, the seafarer is directly hired by the shipowner or, secondly, the
seafarer is employed by a manning agent and is selected for the service required by the shipowner.
The recruitment process will be discussed further in the following paragraphs.

For the present, it is sufficient to state that given the definition of seafarer in MLC 2006, it is clear
that: ‘the Convention envisages such scenarios and the shipowner’s obligations towards the

14 MLC 2006 reg 1.2.

15 MLC 2006 reg 1.3.
16 IMO International Convention on Standards of Training and Watchkeeping for Seafarers (STCW) 1978 <http://www.

imo.org/en/About/conventions/listofconventions/pages/international-convention-on-standards-of-training,-certification-
and- watchkeeping-for-seafarers-(stcw).aspx>
17 MLC 2006 reg 2.1

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seafarers on board his ship are not restricted to those seafarers that are directly employed by
him’.18 The same should also apply in the employment of private armed guards. They need to be
hired under a contract of employment, which reflects the main MLC standards, meaning that the
terms and conditions of employment are clearly stated in the signed contract, that the contract is
accompanied by a document containing the record of employment on board and that any relevant
information is always accessible on board.

According to Regulation 2.3, seafarers are entitled to a maximum number of hours of work and to a
minimum number of hours of rest. The normal working hour standard is established to an eight-
hour day with one day of rest each week and rest on public holidays. The flag state can decide
whether to base the limits on maximum hours of work or minimum hours of rest. Regulation 2.3(5)
sets the limits on hours of work or rest. Working hours must not exceed the maximum of (i) 14
hours in any 24-hour period and (ii) 72 hours in any seven-day period, whereas the minimum hours
for rest shall not be less than (i) 10 hours in any 24-hour period and (ii) 77 hours in any seven- day
period. Hours of work and rest are regulated to avoid fatigue and to ensure safe operation of the
ship. In the event of an emergency where the ship and crew are in danger or obliged to give
assistance to other ships or persons in distress at sea, the captain can suspend the work schedule until
the problem is resolved. According to the ITF, if normal working hours are disrupted by emergencies
or unscheduled call-outs, seafarers are entitled to an adequate compensatory rest period. Even
though security teams are on board to ensure safe transit of the vessel through HRAs, which by
definition increases the hours that the guards should be on duty, this regulation will not cause any
problems provided that the guards receive either enough rest when the vessel sails into non-HRAs
until disembarkation or when they disembark.

Further, Regulation 2.5 imposes an obligation upon the shipowner to provide adequate support to
seafarers concerning their repatriation. Shipowners are not permitted to ask seafarers for any
contribution towards their repatriation nor can they make a deduction from seafarers’ wages towards
the cost of repatriation, unless the seafarers in question have seriously breached the terms of their
employment contracts. Repatriation is also crucial for private armed guards. Incidents have been
reported of private armed guards being abandoned at foreign ports in Egypt, Somalia or Kenya,
locked up in jail because they carried heavy weaponry and where neither the relevant shipowner nor
the private maritime security company was interested in facilitating or assisting them in getting

18Jennifer Lavelle (ed), ‘The Maritime Labour Convention 2006: International Labour Law Redefined’ (Informa
Law 2014) 187
13
back home.

Moreover, shipowners need to provide decent accommodation facilities, which will promote decent
working and living conditions aboard, as well as health and well-being. Adequate accommodation is
vital for every person working and living on board, even for security personnel. There are reports
indicating that armed guards are treated unequally in terms of accommodation, living in dark rooms
without ventilation and lacking hygiene. Under the MLC 2006, armed guards can require adequate,
clean and decent rooms during their stay on board.

Social security is considered as the milestone of seafarers’ rights and it is regulated under
Regulation 4.5 of the convention. All seafarers as well as their dependents have a right to have
access to social security protection as far as they are provided in national law.19The MLC 2006 aims
to encourage wider social security protection for seafarers. States signing up to the convention have
to provide protection in at least three recommended areas, including medical care, sickness benefit
and employment injury benefit. Social protection should also be taken into consideration for armed
guards, who face a high risk of being injured during their employment, and who often have to bear
that risk themselves.

Extra care is given to the regulation of the ‘seafarers’ recruitment and placement agencies. The
MLC 2006 provides a specific definition of the agencies upon which the convention is applicable.
Article 2(1)(h) states that: ‘seafarer recruitment and placement service means “any person,
company, institution, agency or other organization, in the public or the private sector, which is
engaged in recruiting seafarers on behalf of shipowners or placing seafarers with shipowners” ’. The
convention regulates both public and private agencies and recruitment agencies, which can be also
located in a non-member state. Under the ‘non-favourable treatment’ principle, the shipowner is
obliged to demonstrate that any personnel hired through a recruitment and placement agency have been
recruited from MLC compliant agencies. This applies to all agencies that offer to supply seafarers,
even if they are based in a non-ratifying country or if they offer to supply seafarers to ships flying the
flag of a non-ratifying flag state.

Manning agencies or seafarers’ recruitment and placement services are types of ship management
companies specialising in crew management and, thus, dealing with the selection, recruitment and
hiring of crews. The role of manning agents may go beyond recruitment, for example ‘dealing with
visas and journeys, organising crew changeovers, organising and paying salaries and social security

19International Transport Workers’ Federation, ‘The Maritime Labour Convention: A Seafarers’ Bill of Rights (ITF
Guide)’ (2013)
14
contributions, dealing with crew members’ complaints and even negotiating working conditions
with the ITF’.Manning agency operations actually consist of a network of three types of contract,
each of which is separate from the others. The first contract is between the manning agency and the
shipowner and deals with placing the order to hire seafarers; the second contract is the placement
agreement between the worker and the manning agency; and the third is the employment contract
between the shipowner as employer and the seafarer, resulting from the manning agency’s role as
intermediary. These inter-related relations create uncertainty and difficulty in identifying who is the
‘employer’. The MLC 2006 tries to overcome such obstacles by considering the shipowner as the
‘locus or focal point for regulatory activity and responsibility for all workers/seafarers on its ships,
irrespective of other contractual and management arrangements between the seafarer and her or his
employer’.

Furthermore, the convention requires member states to provide a regulatory framework, which
would facilitate seafarers having access to a more efficient, adequate and accountable system for
finding employment on board ships without any extra charges. Private service providers, whose
primary purpose is the recruitment and placement of seafarers or who recruit and place a significant
number of seafarers, must only operate in conformity with a standardised system of licensing or
other forms of regulation, which can be established or modified solely after consultation with all
stakeholders concerned.20

The recruitment and placement process of security teams is an urgent issue that requires prompt
action. Private maritime security companies must be closely monitored and, indeed, the MLC 2006
provides for such a monitoring mechanism. By treating armed guards as seafarers, maritime
security companies will have to comply with the standards of the convention. They must
demonstrate that they have internal policies in place, that their operators have all the necessary
certificates and adequate training, as well as a solid record of experience. As the security sector
relies mainly on the quality and effectiveness of the hired operators, the same rules and standards
should apply to all agencies supplying armed guards, even if they are based in a non- ratifying
country or if they supply guards to ships flying the flag of a non-ratifying flag state.

Clearly, the end result would be to ensure better protection for individual armed guards but, because
this is not without cost implications, additional protection for armed guards means more regulation
on shipowners and the private maritime security companies.

20 Maritime Labour Convention (2006), A1.4.2.

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 VI. POLITICAL CONTROVERSY OF CLASSIFICATION AS SEAFARERS OR
PCASP

From the time when armed guards were first used to counter piracy on the high seas, argument has
raged as to whether armed guards should come within the ambit of the convention or not.

Evidently, both approaches have strong and weak points and perhaps it would be better not to
attempt to analyse this in black and white but, rather, to leave it as a grey area. However, within the
scope of this article, both situations will be examined in order to clarify the comparative advantages and
disadvantages in each case.
Arguments in favour of the classification of PCASP as ‘seafarers’

From a legal perspective, the benefit of classifying private armed guards as seafarers would be the
adoption of an international regulatory framework of a binding nature to govern their employment. A
comprehensive set of standards would be available in order to monitor the recruitment and placement
process, to provide adequate working and living conditions and to contribute towards ensuring certainty
and clarity in the private sector, all of which currently operate in a grey area of the law.

To date, there is no mandatory international convention that comprehensively addresses the subject
matter and no uniformity of laws on armed non-state actors at sea at the national level.
Consequently, states have taken different approaches and measures. On the other hand, a variety of
guidelines has been created. However, they merely suggest good practices for the private security
teams and thus are not legally binding. Under the United Nations Law of the Sea Convention
(UNCLOS), there are no specific provisions regarding the issue of private armed guards. In light of
the coastal states’ right to ensure safety of navigation and of the flag states’ right to regulate safety
onboard their vessels, it is submitted that these provisions can constitute the legal basis for states to
enact laws towards enhancing shipboard safety.

On the part of the IMO, no relevant international convention exists. Through its Maritime Safety
Committee, the IMO has produced guidelines in respect of the use of private armed guards, although
these are neither legally binding nor do they provide certifiable standards.21 More recently, the IMO
has assigned the International Standards Organisation (ISO) the task of developing the first global
standards for private maritime security companies. The ISO developed the only published
international standard dealing with armed guards on ships entitled ‘Ships and marine technology:

21IMO MSC ‘Interim guidance to shipowners’ (n 5); IMO MSC ‘Interim recommendations for flag states’ (n 5); IMO
MSC ‘Interim recommendations for port and coastal states regarding the use of privately contracted armed security
personnel on board ships in high risk areas’ (MSC.1/Circ.1408)
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Guidelines for private maritime security companies (PMSCs)’.

In determining the law applicable to private armed guards, numerous international conventions,
regional arrangements and domestic laws are clearly relevant, including human rights law. A new
IMO Maritime Safety Committee document, MSC.1/1443, specifically makes reference to two other
documents, namely the Montreux Document on Pertinent International Legal Obligations and Good
Practices for States related to Operations of Private Military and Security Companies during Armed
Conflict and the International Code of Conduct for Private Security Service Providers (ICoC). How-
ever, neither of these documents specifically addresses piracy and armed robbery in the maritime
field or provides significant guidance on private armed guards on board vessels.22

BIMCO Guardcon was the result of the industry’s intention to harmonise the terms of engagement

of private maritime security companies. As Guardcon represents a positive attempt at creating

uniformity in standards of the employment of armed guards on board vessels, it can surely be
accommodated by the minimum standards of the MLC 2006. Together, these documents can provide
a complete system of protection and legal certainty on the use of private armed guards.

The treatment of armed guards as seafarers also has economic benefits. The status of seafarer brings
extensive flexibility because, in the event that an armed guard holds a seaman’s card or a discharge
book, he can freely embark and disembark in foreign ports without the need for a visa. This
development will result in the reduction of paperwork and more importantly of the extra costs for
visa applications on the part of maritime security companies. The armed guards themselves will be
also able to benefit from the reduction in airfares,23which will allow faster and smoother
repatriation.

Finally, it will have a positive impact on the productivity and effectiveness of the guards. In order
to work efficiently, the security teams must be incorporated into the overall operating framework
from the outset. In uncertain situations, a clear chain of command and the undoubted authority of
the master can mean the difference between life and death.
Points of criticism

On the other hand, the view that armed guards must be considered as seafarers under the MLC 2006
raised concerns within the shipping industry generally and private maritime security companies in

22 The Montreux Document restates rules of international law and provides a set of good practices for states, whereas the
ICoC identifies a set of principles and processes for private security service providers in support for the rule of law and
the respect for human rights; however, it is directed only at land-based security companies.
23 Desislava Nikolaeva Dimitrova, ‘Seafarers’ Rights in the Globalized Maritime Industry’ (Wolters Kluwer 2010).

17
particular. The Security Association for the Maritime Industry (SAMI) reported that both
shipowners and PMSCs worried about the consequences deriving from the implementation of the
MLC 2006 on private armed guards.

From the shipowners’ point of view, this might place the business model of armed guards in
jeopardy because their employment will become either impossible or economically unfeasible.24
They focus their reluctance on three aspects of the protection offered by the MLC 2006. First, there
is concern among shipowners that certain vessels do not have the MLC-compliant room to
accommodate armed guards and they will, therefore, be precluded from the deployment of security
teams.25 However, no details are provided on how many of these vessels cannot accommodate a
team of three or even four guards.

Secondly, another concern is related to the application of the regulation of working hours, which
might mean that larger teams need to be employed on board, which would be against the trend to
lower the number of guards on ships from four to three.

The final point of criticism is directed towards the extra liability resulting from the repatriation of
the security teams. Under Regulation 2.5, PCASP will be entitled to be repatriated in the event of
termination of the contract, illness, shipwreck or insolvency. Shipowners say they will try to pass
this burden onto the PMSCs; however, they need to check with their underwriters whether their
existing policy provides sufficient cover. In conjunction with Regulation 4.2 on financial security,
shipowners will also be obliged to provide adequate financial security to assure compensation for
the armed guards in the event of death or long-term injury.

As a result of the increase of the operational costs, shipowners are currently positioned against such
development. They argue that even if private armed guards are considered to be seafarers under the
law of their flag state, they either have to leave their vessels unprotected or change the flag.

On a similar basis, private maritime security companies have expressed economic concerns. They
insist that such qualification will bring more regulation, which will affect the recruitment and
placement process. Security companies will be obliged to employ their operatives on terms that are
at least equal to the bare requirements of the MLC 2006. They will need to have a system in place
to ensure continued suitability of their personnel for employment as armed guards. PMSCs should

24 Paul J Bauer ‘The Maritime Labour Convention: an adequate guarantee of seafarers rights, or an impediment to true
reforms?’ (2008) 8 Chicago Journal of International Law 643
25 William MacLachlan, Elinor Dautlich and Eleanor Ayres ‘Treatment of the PCASP under the Maritime Labour
Convention’ Holman Fenwick Willan (July 2014), <http://www.hfw.com/Treatment-of-PCASP-under-the-Maritime-
Labour-Convention-July- 2014>
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undertake police background checks or enhanced criminal records checks, history of employment
checks (as evidence of relevant experience, including in the use of firearms). Moreover, relevant
and up-to-date training, medical fitness checks, additional medical and mental fitness checks to
prove their suitability to work as armed guards will need to be set up. All of these requirements
impose extra burdens upon the security companies, as they have to guarantee the quality of their
operatives, which will be more expensive than the vast majority of low standard security guards,
who earn significantly less in order to find employment. Thus, the application of the MLC 2006 to
armed guards is not profitable for shipowners because the convention creates rights in favour of
armed guards and extra operational costs for the security companies.

VII. RECOMMENDATIONS AND CONCLUSION

As the situation stands so far, it is uncertain how the courts would decide on this issue. Given the
current legal uncertainty, a test case might be justified where an appeal court or a Supreme Court
judgment would provide helpful insight. If this matter is left unsettled, the question remains un-
changed: how to define the legal status of private armed guards. As noted above, armed guards
cannot be seen as stevedores or as passengers. Are there any alternative options and, indeed, do we
need a new or special legal status for them?

It is of great importance to design and bring into effect a legally binding framework that will
provide certainty regarding the employment of private armed guards, especially since they currently
operate in a grey area of the law. Although the MLC 2006 offers an extensive set of standards,
which are also suitable to be applied in the case of armed guards, to date many states that have
ratified the MLC 2006 are hesitant to proceed with such a qualification. The political and economic
considerations seem to prevail over the legal certainty at this moment in the eyes of competent
authorities.

In view of that fact, a possible compromise solution could be partial protection under the MLC
2006. Member states can classify the armed guards as ‘special purpose personnel on board’. As
such, private armed guards can partially rely on the protection conferred by the MLC 2006 and
invoke certain rights, which correspond to their function on board. The rights that are most relevant in
order to assure their protection as security operatives refer to the minimum requirements to work on
board, the conditions of employment and accommodation. For the remaining rights, such as wages
etc, private armed guards will have to seek protection under the national laws applicable to their
employment contract or collective bargaining agreements signed by their representatives in the

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sector.

Moreover, in case member states are willing to take a step further in providing protection similar to
the MLC standards, they can do so by using their right under Article 6(4) of the convention to
implement ‘substantially equivalent’ measures, which will give effect to the provisions of the Part A
of the Code. One measure could be to recognise the private maritime security companies as playing
the role of shipowners for the purposes of the convention. In doing so, a series of obligations will
be transferred from shipowners to security companies, which would have to ensure armed guards’
health and safety protection, accident prevention, access to shore-based welfare security, the
provision of social security and, together with liability for sickness, injury or death of the guards
occurring in connection with their employment.

From observance of the above circumstances, the current situation remains complicated and
uncertain as the use of private armed guards continues to be unregulated and lacks oversight.26
Because the current regulatory gap creates concerns, the maritime industry and private security
companies have started to develop their own guidelines. However, this is only a short-term solution.

The Maritime Labour Convention 2006 can be used as a long-term solution. In this way an
international instrument of binding nature would regulate the private security sector to the effect of
limiting the phenomenon of mere ‘guards of convenience’. From the member states’ point of view,
it seems unrealistic to assume that there will be any legislative progress in the near future. However,
the matter remains topical until a better solution or approach is developed, which would
progressively lead to the elimination of maritime piracy.

26 Sara Ross ‘The business of piracy: commercial shipping, risk management and the use of private security
firms’ (2014) 20 Journal of International Maritime Law 193.
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 VIII . BIBLIOGRAPHY

JOURNALS
1. Adăscăliţei O, “The Maritime Labour Convention 2006 – A Long-Awaited Change in the
Maritime Sector” (2014) 149 Procedia - Social and Behavioral Sciences 8
2. Mryto Vasili, ‘Private Armed Guards as seafarers under the Maritime Labour Convention
2006’ (2017) 23 JIML
3. Sandra Lielbarde, ‘Concept of Seafarer before and after the Maritime Labour Convention
2016 : Comparative Analysis of the legal effects of defining the legal concepts in the shape
of legal terminology’ (2017) ISSN 1691-9254
4. F. Piniella, J.C Rasero, ‘Maritime Security: Towards a global identification’ Vol XII. No. I
(2015) pp. 17-24
5. Joseph P Goldberg, ‘Seamen and the International Labour Organisation’ Vol. 81, No. 9
(September 1958), pp. 974-98

ONLINE SOURCES
1. https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:91:0::::P91_SECTION:TEXT
2. https://pdfs.semanticscholar.org/5bde/07354bcc7f886a2ee559cf6930d42dcfadf8.pdf
3. https://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/
seafarers/lang--en/index.htm
4. http://www.imo.org/en/KnowledgeCentre/Resources_for_Seafarers/Seafarersrights/Pages/
default.aspx
5. https://seafarersrights.org/seafarers-subjects/maritime-labour-convention-mlc/

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