The concept of “shipowner” under new maritime labor law (MLC, 2006): does the shipowner own the ship? (comparative analysis of national law of Denmark, Finland, Germany, Norway, and the United Kingdom)

Abstract

The identification of the responsible shipowner is essential for seafarers in order to claim payments and compensation in respect of their employment on board a ship. Often this may be difficult because of corporate arrangements and the many intermediaries traditionally involved in ship operation. The Maritime Labour Convention 2006 (MLC, 2006), adopted by the International Labour Conference (ILC) 94th (Maritime) Session in 2006, entered into force on August 2013; it significantly affects the shipowner’s responsibility in respect to seafarers’ employment. Taking into account the mentioned issue, the article examines the concept of “shipowner” under the MLC, 2006 and presents comparative analysis of the relevant national law implementing the MLC, 2006 in Denmark, Finland, Germany, Norway, and the United Kingdom.

1 Introduction

The MLC, 2006¹ is considered to be important international regulation in regards to protection of seafarers’ rights.² It has been ratified by 84 countries representing 91% of the world’s gross tonnage in shipping.³ Although the new convention significantly affects the business of all stakeholders in shipping, the MLC, 2006 standards, first of all, apply to the legal relations arising from employment contracts, called “seafarers’ employment agreement” in the MLC, 2006,⁴ between shipowners and seafarers. The shipowner has an obligation to ensure appropriate working conditions on board ship, payment of wages due, and repatriation of seafarers and to fulfill other obligations in accordance with international and national law and the seafarer’s employment agreement (SEA). In turn, the seafarers have the rights to require from the shipowner to ensure fulfillment of their obligations and to be compensated if the shipowner fails to do so.

When a seafarer needs to submit a claim in regards to the payments due for work on board a ship, the seafarer faces the need to identify a potential defendant—the responsible shipowner. International and national legislation requires an information about the shipowner to be included in the SEA. But even having a written SEA signed by a shipowner is not always enough to identify a responsible employer. Legally, a shipowner is the person who operates a ship for his own account (Falkanger et al. 2011: 149), and information about a legal shipowner can be obtained from the relevant national ship register. In practice, the registered owner may be a single ship company without any assets but the actual owner is unrevealed behind the complex corporate structure. Typically, in shipping, a ship operation is done by different persons. Recruitment of a crew is often contracted to the management company which further contracts with the crewing agencies in different countries. The study of Organization for Economic Co-operation and Development (OECD 2003: 3) has found that it is very easy, and comparatively cheap, to establish a complex web of corporate entities to provide very effective cover to the identities of beneficial owners who do not want to be known. International corporate arrangements (that exist for reasons quite unrelated to shipping), i.e.: agents, trust companies, and other intermediaries, private limited companies, and other forms of legal entities not required to publicly disclose the identities of members, help to ensure shipowner’s anonymity and burden to identify a responsible person for seafarers. In many cases, reduced transparency is facilitated by open shipping registers, as well some traditional shipping registers may lack the legal power, resources, or expertise to uncover the ultimate identity of beneficial owner (OECD 2003: 3). Additional difficulty is that because of the international nature of ship operation, the jurisdiction in which the seafarers’ rights can be enforced is often hard to establish. The mentioned practice in shipping does not facilitate identification of a responsible shipowner and obtaining a rapid remedy (McConnell 2016: 145).

One can say that after the MLC, 2006 the above mentioned is not a problem. The MLC, 2006 contains the requirement for a seafarer recruitment and placement service to establish a system of protection (by way of insurance or equivalent appropriate measure) to compensate seafarers for monetary loss,⁵ and requires the shipowner to provide financial security to ensure that seafarers are duly repatriated⁶ and compensated in the event of the death or long-term disability of seafarers.⁷ The MLC, 2006, as amended in 2014,⁸ establishes the possibility for seafarers to have direct access to the shipowners’ financial security (insurance) and by that provides more effective protection to seafarers facing abandonment. Also, port state control and flag state control system for the inspection and certification provides an assistance to the seafarers in enforcing of their rights relating to their employment on a ship. However, identification of responsible shipowner can be problem also for a port state inspector. There is still a possibility of in rem actions and ship arrest for seafarers’ claims but it could be complicated, lasting, and costly procedure for a seafarer.

Availability of various legal procedures and instruments, which all are not considered further in the article, decreases a risk for the seafarer to be left without compensation. Nevertheless, the identification of the responsible shipowner can still be a problem. The most important document in this context is the SEA where an information about a shipowner shall be inserted according to the MLC, 2006 and national law. Each member state of the MLC, 2006 shall adopt laws and regulations requiring that seafarers working on ships that fly its flag have a SEA signed by seafarer and shipowner.⁹ In practice, the identification of a responsible shipowner is not as straightforward as it may look from the law mentioned above.

The purpose of the article is to analyze the MLC, 2006 concept of “shipowner.” The author examines the term and the definition of “shipowner” contained in the MLC, 2006 and in national law in order to answer who can be considered as the shipowner in respect of seafarers’ employment under the national law and does national law requires that the seafarer is provided with the information about the responsible shipowner? In respect of analysis of national legislation, the scope of this article is limited to the national law of five countries—Denmark, Finland, Germany, Norway, and the United Kingdom. These countries are parties to the MLC, 2006 and have adopted national legislation necessary for implementation of the MLC, 2006 which is available publicly. All mentioned countries have a considerable number of ships under their flags representing an important percentage of the world’s tonnage of ships.¹⁰

2 Concept of “shipowner” under the MLC, 2006

2.1 General points on analysis and methods

A term is a terminological unit that represents a concept defined within a particular field of knowledge (Cabre 1999: 81). According to Cabre, the most distinguishing feature of a term in comparison with a word in the general language is the fact that the term is used to designate concepts pertaining to special disciplines and activities (Cabre 1999: 81). Accordingly, legislation does have the power to define the term “shipowner” for the purposes of legislation by assigning special meaning for it in maritime labor law. The direction towards a concept of a term is given by the definition, of which the functions are the following:

• 1) to determine the limits of a concept, that is to say: to distinguish the content of words, ideas, and things from the content of cognate words, ideas, and things,

• 2) to stipulate a new meaning of the word or

• 3) to give precision to some vague everyday meaning (van der Staak 1997: 92).

The legal meaning of a legal term in its textual context does not always appear plainly. When a word and concept with an established core of meaning goes beyond its ordinary, use the result is ambiguity and inconsistency (Tessuto 2008: 286). When the content of a legal provision is wider than the linguistic meaning of the words and sentences in legal text, the legal meaning of that provision cannot be discovered without regard to the text author’s intention.

In accordance with Article 31 of the Vienna Convention on the Law of Treaties 1969¹¹, the general rule of interpretation of treaties is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Any other agreement or instrument related to the treaty, or practice in the application of the treaty, as well preparatory work of the treaty and the circumstances of its conclusion can be used in order to find the meaning of the terms of the treaty.¹²

Accordingly, an analysis of the MLC, 2006, the term and definition of “shipowner,” and the legislative intention of the MLC, 2006 drafters are presented below.

2.2 Term and definition under the MLC, 2006

Article II (1) (j) of the MLC, 2006 defines “shipowner” by the following:

shipowner means the owner of the ship or another organization or person, such as the manager, agent, or bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner and who, on assuming such responsibility, has agreed to take over the duties and responsibilities imposed on shipowners in accordance with this Convention, regardless of whether any other organization or persons fulfill certain of the duties or responsibilities on behalf of the shipowner.

From the compositional perspective (Portner 2006: 159) the definition of “shipowner” can be divided into several parts. The first part “shipowner means the owner of the ship or another organization or person, such as the manager, agent, or bareboat charterer” mentions specific categories of persons (manager, agent, or bareboat charterer) which can be a shipowner under the MLC, 2006. It follows from this part that not only the person who is the real owner of a ship but also other persons, not having ownership relation to the ship, can be regarded as shipowners. The term “agent” in shipping is used to cover a wide range of different persons and intermediaries providing services for the shipowner. As well, the use of words “another organization or person” covers unlimited categories of persons and organizations.

The next phrase “who has assumed the responsibility for the operation of the ship from the owner” contains an essential criterion for the organization or person to be recognized as the MLC, 2006 shipowner. This criterion considerably limits a wide group of different persons and organizations who can be potential shipowners. In practice, the other person who takes responsibility for operation of a ship usually is the bareboat charterer¹³ or the management company (ISM Company).¹⁴

The next part of the definition “and who, on assuming such responsibility, has agreed to take over the duties and responsibilities imposed on shipowners in accordance with this Convention” further limits the scope of potential shipowners. The contract between the shipowner and person or organization on assuming responsibility for the operation of a ship has to contain the specific provision on assuming responsibility imposed on shipowners under the MLC, 2006. The MLC, 2006 Clause of the Baltic and International Maritime Council (BIMCO) standard contract SHIPMAN 2009¹⁵ can be mentioned as an example:

• (a) Subject to Clause 3 (Authority of the Managers), the Managers shall, to the extent of their Management Services, assume the Shipowner’s duties and responsibilities imposed by the MLC for the Vessel, on behalf of the Shipowner.

The last part of the definition “regardless of whether any other organization or persons fulfill certain of the duties or responsibilities on behalf of the shipowner” means that the person responsible for ship operation, including responsibilities in relation to the MLC, 2006 has shipowner’s status and responsibility irrespective of other contractual arrangements the shipowner may have with other persons and organizations.

Although the definition of “shipowner” addresses all corporate structures and legal entities which can be involved in maintenance of a single ship on behalf of the shipowner, the conclusion is that there should be one responsible shipowner for every particular case and, taking into account shipping practice, it can be an actual shipowner or bareboat charterer or ISM Company.

2.3 Legislative intention

As the starting point, the definitions of “shipowner” contained in other international maritime conventions were reconsidered by the MLC, 2006 drafters,¹⁶ and it was decided that the definition of “shipowner” consistent with ILO and IMO conventions should be retained.¹⁷ The definition of “shipowner” in the MLC, 2006 preliminary draft was as in the following:

• (i) the term shipowner means the owner of the ship or any other organization or person, such as the manager or bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner or other organization or person and who on assuming such responsibility has agreed to take over all the attendant duties and responsibilities. (modified definition taken from C.179, C.180, ISM Code (for company))¹⁸

The following preparatory meetings did not bring considerable changes to the previous draft’s definition. Accordingly, a definition in the MLC, 2006 draft submitted to the ILC, 94th (Maritime) Session, 7–23 February, 2006 was as in the following:

• (j)shipowner means the owner of the ship or any other organization or person, such as the manager, agent, or bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner or other organization or person and who, on assuming such responsibility, has agreed to take over the duties and responsibilities imposed on shipowners in accordance with this Convention. (modified C.179A1/1c; modified ISM, Reg. 1, paragraph 2).¹⁹

Nevertheless, the definition was discussed again during the 94th (Maritime) Session of the ILC, 7–23 February, 2006. The proposal submitted by the Government members was to add at the end of text of the definition of “shipowner” the phrase “irrespective of any subcontracting to other organizations or persons to perform certain duties and responsibilities on his or her behalf”.²⁰ The purpose of that proposal was to avoid confusion and the risk that it would create the situation in which responsibilities could be endlessly passed from one party to another and in which it would be very difficult to identify an actual shipowner.²¹ From these discussions, it follows that the aim of this amendment was not to reduce responsibilities of shipowner but to define more clearly that the shipowner is the party with final responsibility, without prejudice to the right of a shipowner to recover the costs from others who may also have had certain duties and obligations towards seafarers’ employment. The proposed amendment was accepted.

The ILO publication also states that the definition of “shipowner” was adopted to reflect the idea that, irrespective of the particular commercial arrangements regarding the operation of a ship, there must be a single entity having overall responsibility vis-à-vis the seafarer for any potential breach of the MLC, 2006 (MLC, 2006. Frequently Asked Questions (FAQ). 2015: 42).

It follows from the abovementioned that the legislative intention was to state that a shipowner is the one person who takes final responsibility in relation to seafarers’ employment. This is not a new approach in maritime labor law because the one person—the owner of the ship or barebout charterer was also deemed to be a responsible party for seafarers’ employment under previous international and national regulation. However, the MLC, 2006 definition brings change in regards to who can be that person with final responsibility. Under the MLC, 2006 definition of “shipowner,” the other person, who is neither shipowner nor barebout charterer, can be considered as the shipowner. The person,” who has assumed the responsibility for the operation of the ship from the owner and who, on assuming such responsibility, has agreed to take over the duties and responsibilities imposed on shipowners in accordance with this Convention”, can be, for example, an ISM Company or other person.

3 Examination of national law

Irrespective of the legislative intention, the MLC, 2006 definition of “shipowner” does not give a direct answer as to how to establish, in particular case, who that person with final responsibility is. It is a task of national law to ensure that seafarers are duly informed and are aware of the responsible shipowner.

The MLC, 2006 requires that seafarers working on ships shall have a SEA signed by both the seafarer and the shipowner or a representative of the shipowner, and a shipowner’s name and address is included in the SEA.²² As often, several organizations are involved in the recruitment and employment of seafarers; it is important to examine how national law provisions ensure that the information on a person acting as a shipowner—a person with final responsibility—is available to a seafarer. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR)²³ has also stressed the importance of the basic legal relationship that the MLC, 2006 establishes between the seafarer and the person defined as “shipowner” under Article II, that in accordance with paragraph 1 of Standard A2.1, every seafarer must have an original agreement that is signed by the seafarer and the shipowner or a representative of the latter (whether or not the shipowner is considered to be the employer of the seafarer).

The author’s focus in this article is on the following national law issues: who can be considered as the shipowner and does national law ensure that the seafarer has information about a responsible shipowner, especially in a case when another person than the shipowner is considered to be the employer of the seafarer?

3.1 Term and definition

To refer to the person liable for the responsibilities set out in the MLC, 2006 towards seafarers, the following terms are used by national law: shipping company, company, shipowner, and employer. Alongside with the traditional shipping terms, the general labor law term “employer” is also often used by national law.

The Danish law²⁴ uses the term “shipowner” and the term “employer” in respect to the person responsible for the employment of seafarers. The Danish Maritime Authority (DMA) in its publication²⁵ explains the term “shipowner” in the following:

Ship owner. See under “Shipping Company”.

Shipping company means the seaman’s employer. The person or the company responsible for the manning of the ship or the ships.

The term “employer” is also used to refer to the person who shall, prior to commencing service, conclude a written employment contract with the employee.²⁶

In Norwegian law, the term “company” and the term “employer” are used to refer to the person or entity responsible for seafarers’ employment.²⁷ The “company” means any company stated as the managing company in the Safety Management Certificate of the ship (i.e., ISM Company).²⁸ The owner of a ship can be considered to be a company only in specific cases—if the requirement for a Safety Management Certificate is not applicable to the ship, or the Safety Management Certificate has ceased to be valid or has been withdrawn, or the company does not exist.²⁹ The employer means anyone who enters into the SEA with the seafarer for work on board a ship.³⁰ The term “employer” covers the company itself, as well as the person other than the company who has engaged an employee to perform work on board ships.³¹

UK law states that the shipowner is the following:

• (a) in relation to a ship which has a valid Maritime Labor Certificate, the person identified as the shipowner on that certificate,

• (b) in relation to any other ship, the owner of the ship or, if different, any other organization or person such as the manager, or the bareboat charterer, that has assumed the responsibility for the operation of the ship from the owner.³²

It is emphasized in Marine Guidance Note, MGN 471 (M) that the person named on the certificate has, by definition, accepted the responsibilities and liabilities set out in the MLC towards seafarers on their vessels.³³ Paragraph 4.4 of MGN 471 (M) explains that the final part of the MLC, 2006 definition was omitted from the UK definition on the basis of following considerations:

Under the MLC definition, in order for another person (X) to be the shipowner rather than the actual shipowner, the MLC definition requires (a) that X has assumed the responsibility for the operation of the ship; (b) that X has entered into an agreement to take over MLC duties and responsibilities under the MLC. This potentially leaves the person named on the certificate the scope to dispute the existence of these elements as a means of resisting enforcement of MLC obligations, which would, as a minimum, delay the seafarer receiving their entitlements while the issue is resolved, and could leave the MCA only able to take action against the shipowner instead, which may be inappropriate in the circumstances.

German maritime labor law defines the term “shipowner” in almost identical wording to the one contained in the MLC, 2006:

• 1. the owner of the ship, or

• 2. any other organization or person having assumed the responsibility for the operation of the ship from the owner of the ship and having undertaken, on assuming this responsibility in the contract with the owner, to carry out the tasks and obligations which are imposed on the shipowner in accordance with the present Act and with the other legal provisions for the implementation of the Maritime Labour Convention.³⁴

The term “employer” is also used in the German Maritime Labour Act to refer to the person responsible for seafarers’ employment other than the shipowner.³⁵

Finnish maritime labor legislation does not use the term “shipowner” at all. Instead, the term “employer” is used to refer to a person entering into employment contract for work on board a Finnish ship.³⁶

It follows that under national law of all countries mentioned above, the term “shipowner” is not restricted only to an actual owner of a ship. The definition of the term “shipowner” is drafted in the way to cover also other persons who can take responsibility in respect to seafarers’ recruitment and employment from the real owner.

3.2 Who is a shipowner—the person with final responsibility?

The national law of Denmark states that the shipowner and another person, other than the shipowner, acting as the employer, as well, is responsible for obligations according to the SEA and the regulations on the conditions of employment.³⁷ Another person or organization which is authorized to perform fully or partly the shipowner’s obligations becomes responsible for shipowner’s general obligations insofar as regards the responsibility assumed.³⁸ Considering the provision which states that in respect to disputes concerning the employment and the consideration of complaints on board, a seafarer has the rights to complain to the shipowner;³⁹ it may be assumed that the shipowner remains the person with final responsibility. However, in its report the CEACR stressed that since the SEA standard form provides that it can be between the seafarer and a shipowner or a master or an employer it is not clear from the legislation that a shipowner may remain responsible for all matters under the SEA.⁴⁰

In Finland, general principle of the employer’s liability is expressed by Chapter 12, Section 1 of the Seafarers’ Employment Contracts Act (756/ 2011):

If the employer intentionally or through negligence commits a breach against obligations arising from the employment relationship or this Act, it shall be liable for the loss thus caused to the employee.

A Finish employer is also liable for loss caused to the employee due to fault or negligence by other persons authorized to act as the employer’s representative.⁴¹ In addition to the employer the responsibility of the shipping company is emphasized in specific cases:

Even in circumstances where the employee is employed by someone else other than the shipping company, the shipping company shall, in addition to the employer, be responsible for the employee’s free homeward journeys, the employee’s belongings left on board the ship, and the employee’s health care and burial.⁴²

German law clearly states that the shipowner shall be responsible for adherence to the rights and obligations in accordance with the Maritime Labour Act and with the other legal provisions for the implementation of the MLC, 2006 even if another organization or person performs specific tasks and obligations on behalf of the shipowner, or another organization or if the person is the employer or trainer of a crew member (another employer).⁴³ The other employer shall also be responsible for adherence to the rights and obligations of the shipowner in accordance with the Maritime Labour Act and with the other legal provisions for the implementation of the MLC, 2006.⁴⁴

In Norway, the employer has general obligation to ensure compliance with the Ship Labour Act and SEA.⁴⁵ The company retains this obligation also in case where the employer is someone other than the company.⁴⁶ The employer which is a person other than the company, is obliged to participate in ensuring the obligations of the company.⁴⁷ The company is jointly and severally liable together with the employer for the payment of salary, holiday pay, and any financial claims that employees working on board the ship are entitled to.⁴⁸ From the seafarer’s perspective, it is very important that Norwegian law precisely points to the person to whom the seafarer’s claim can be submitted. If there is joint liability of the company and the employer, the employee can make a written claim against the company, and the company shall pay the claim within 3 weeks of receipt of the claim.⁴⁹

The laws of all these countries address the typical situation in shipping when a shipowner delegates ship operation to another person. In general, the responsibility of a shipowner and such other persons is regulated in such a way that both the shipowner and that person are responsible towards seafarers employed on a particular ship. However, it is not always clearly pointed out by law who is the final responsible person from these two.

3.3 Does a seafarer have information about the responsible employer?

The MLC, 2006 Standard A2.1 paragraph 1(a) requires that seafarers working on ships shall have an SEA signed by both the seafarer and the shipowner. Moreover, Paragraph 4 of the same Standard states that the shipowner’s name and address have to be included in the SEA. The national law of all countries considered in this article also requires a written form of the SEA and prescribes the content of the SEA.⁵⁰

In Denmark, a written SEA shall be concluded with the shipowner or the employer or the one acting on behalf of the shipowner or the employer.⁵¹ The employee shall be furnished with a copy of the SEA signed by the employer, and the contract shall include information about name and address of the employer.⁵² A publication of the DMA informs that both the seaman and the shipping company/master must sign the SEA and it must contain the identity of the shipowner.⁵³ A standard form of SEA⁵⁴ is drawn to include information about employer or shipowner and to be signed by the master. It follows that the SEA shall contain information on the shipowner or other employer but not about both in cases where the other person, not a shipowner, is acting as an employer. Accordingly, the seafarer may have no information about the shipowner as person with final responsibility in cases where another person other than the shipowner is acting as the employer. CEACR has stressed that Danish SEA standard form is not in line with the MLC, 2006 since it distinguishes between the shipowner and employer. The CEACR noted that it appears under Danish laws and regulations that a shipowner may remain responsible for all matters under a SEA, even the seafarer has a different employer; however, the Danish SEA Standard form, which provides alternatively that the SEA can be between a seafarer and a shipowner or a master or an employer, creates uncertainty as to who is the responsible party. Finally, CEACR requested Denmark to consider amending the SEA standard form.⁵⁵

In Finland, the SEA shall be in writing and shall contain specific information, including the name, address and domicile, or business location of the employer.⁵⁶ There is no requirement to include information on the shipping company or shipowner in case where the employer is a person other than the shipowner. Therefore, a seafarer may lack information on the shipping company or shipowner in that case. Finish law explicitly appoints the shipping company as a person with final responsibility only in respect to specific responsibilities⁵⁷ but not in respect to all claims the seafarers may have.

German law requires that upon the first application to issue a Maritime Labour Certificate and a Declaration of Maritime Labour Compliance, and in case of changes, the responsible shipowner has to be notified to the competent authority. If the primary responsible person for seafarers’ employment will be a person or organization other than the owner, that person has to submit a Declaration of shipowner’s responsibility⁵⁸ by which it declares that it:

has assumed as shipowner the responsibility for the operation of the following ship and, on assuming such responsibility, has agreed to fulfill the duties and responsibilities imposed on the shipowner in accordance with the German Maritime Labour Act and other legal provisions implementing the Maritime Labour Convention.

When commencing service on a German ship, every crew member has to have signed an SEA which establishes an engagement between the shipowner and the crew member.⁵⁹ The SEA shall include the full name and address of the shipowner, and in the case of another employer, the full name and address of the employer and of the shipowner.⁶⁰ If the SEA has been concluded with another employer, the shipowner still has to sign the SEA for acknowledging his obligations according to public law.⁶¹ Moreover, it is recommended to demonstrate the representation to sign an SEA on behalf of the shipowner by a written authorization available on-board the ship.⁶²

In Norway, the SEA has to be signed between the employee and the employer or whomever is authorized by the employer⁶³ and shall contain information on the employer’s name and address.⁶⁴ In the view of the Norwegian Maritime Authority, it is sufficient that the employer signs the SEA even when the employer is someone other than the company, since the company has the duty to see that employers fulfill their obligations set forth in the Ship Labour Act and in the SEA.⁶⁵ In order to ensure that the seafarer has information about the company, Section 2 (3) of Regulation No. 1000 states:

If the employer is someone other than the company, the employer shall, in connection with the entering into of the employment agreement, inform the employee in writing as to who the company is. If it at the time of the entering into of the agreement is not clear who the company is, the employer shall inform the employee in writing as soon as this information is known to the employer.⁶⁶

The legal obligation cited above is also emphasized by guidelines and comments regarding completion of a SEA, available on the back of the SEA standard form.⁶⁷

An agreement in writing shall be made between each person employed as a seaman on the UK ship and the person employing him and shall be signed by both.⁶⁸ In cases where the seafarer is employed by a person other than the shipowner, the information about the employer and the shipowner shall be inserted in the SEA.⁶⁹ Additionally, a separate provision shall be completed and signed by the shipowner who, not being an employer, guarantees that:

(…) in the event of the employer named at (2) above failing, for whatever reason, to meet its obligations to the seafarer named at (1) above under the terms of this Seafarer Employment Agreement I /we* as shipowner(s) undertake to meet those obligations to that seafarer and at no cost to that seafarer.⁷⁰

From CEACR comments to Denmark it strongly follows that irrespective of the employment arrangements involved, the seafarer is required to have an agreement signed by both the seafarer and the shipowner, as the responsible party, or a representative of the shipowner.⁷¹ The national laws of Germany, Norway, and the UK explicitly require that the seafarer shall be informed about the shipowner even in case where the person other than the shipowner is acting as employer. The Danish law and Finnish law do not contain such an explicit requirement.

4 Conclusions

The definition of the MLC, 2006 term “shipowner” is a result of tense discussions at meetings leading up to the adoption of the MLC, 2006. The concept of “shipowner” was well known in maritime labor law before the MLC, 2006. The wording of definition of “shipowner” in the MLC, 2006 is based on the wording used by former ILO maritime conventions.⁷² However, the author’s opinion is that the MLC, 2006 brings considerable changes to the concept of “shipowner” in maritime labor law. Even if at the level of linguistics, there is no great change in the term “shipowner;” the revision of the concept highlighted different issues related to the concept of “shipowner.”

The aim of the MLC, 2006 drafters was to promote transparency within the corporate structure of the shipping company and, at the same time, ensure that there is one person with ultimate responsibility in respect to seafarers’ employment. A concept of “shipowner” in the MLC, 2006 leads to legalization of shipping practice as regards to delegation of shipowners’ responsibility for seafarers’ employment to other persons acting as the employers. The laws of all countries, mentioned in this article, have regulations for a situation in shipping when a shipowner delegates ship operation to another person. It follows from the national laws presented above that not only an actual shipowner and barebout charterer but also other persons, like the ISM Company and others, can be declared as the shipowners with the final responsibility for seafarers’ employment.

The MLC, 2006 definition of “shipowner” reflects the principle that the shipowner is the responsible employer under the MLC, 2006 with respect to all seafarers on board their ships, without prejudice to the right of the shipowner to recover the costs involved from others who may also have responsibility for the employment of a particular seafarer.⁷³ The effectiveness of any international convention is based on uniform implementation of it domestically. Therefore, it is very important that national legislation clearly states who can be considered as the person with final responsibility in respect of seafarers’ employment on board a ship and the scope of responsibility of the shipowner and the person other than the shipowner acting as the employer. It should be required by national law that the information on the person with final responsibility is made available to seafarers in order to facilitate a timely identification of the responsible person and solving of seafarers’ claims and complaints. The national laws of the countries presented in this article require that the information about employer is included in a written SEA. However, in case when there is a mutual responsibility of the shipowner and other person acting as an employer national law does not always explicitly state who is the person with final responsibility. As well, it is not always explicitly required by national law to inform the seafarers on the shipowner in case another person has taken shipowner’s obligations.

The result of the analysis reveals an important development in maritime labor terminology, which has followed changes in shipping practice. Traditionally the term “shipowner” has been defined as a person(s)/company/entity which owns the ship and has all the legal responsibilities/obligations in accordance with the country’s maritime law to which the ship is registered.⁷⁴ Accordingly, the ownership is an important requirement for the person to be a shipowner. Because of the particular nature of maritime employment, seafarers were historically treated as a distinct group of workers with separate entitlements. In olden days, the shipowner was involved in the organization of a ship’s operation himself and, therefore, the SEA was concluded between the shipowner and seafarer. Both were considered essential and indispensable parties to the SEA. The specificity of seafarers’ employment was also reflected in maritime labor terminology. Typically, the terms “shipowner” and “seafarer” for the designation of the parties to the SEA were preferred to the terms of general labor law—“employer” and “employee.” Nowadays, although formally the SEA is between the shipowner and the seafarer, in practice, all employers’ rights and responsibilities are exercised by another person, not the shipowner; and the seafarers in relation to his employment is dealing with the other person—the employer. Taking into account the mentioned changes in shipping, national legislators in some countries considered above gave preference to the term “company” and “employer” in their national labor law implementing the MLC, 2006. Under the new maritime labor law concept of “shipowner,” the shipowner is not necessarily the person who actually owns the ship but rather the person who is “responsible as a shipowner” for seafarers’ employment.