Status of Master and Seafarers in maritime labour law

Maritime law has provided seafarers special rights, protections, and obligations,
many of which were not applicable to other workers. The definition of a seafarer
is a term of art that was, and remains, very important in determining to
whom maritime law could be applied. Although who is a seafarer may appear obvious,
maritime nations have crafted various definitions for seafarers, depending
on the context of the laws applying to them. The UK Merchant Shipping Act
(MSA) 1995, for example, defines ‘seaman’ as every person, except masters and
pilots, employed or engaged in any capacity on board any ship. Because of their
authority and relationship with shipowners, shipmasters are not always considered
seafarers, although protective labour laws generally include them. Because of
their vulnerability, only seafarers were considered by the courts to be entitled to
special protections as wards of the admiralty. Masters, on the other hand, were
considered the owners’ representative on the vessel and were in a position to fend
for themselves. They were not considered seafarers needing special protections of
the courts as wards of the admiralty.

No other commercial occupation is recognized in lore and law as having as
much authority and responsibility as that of a ship’s master. A shipmaster has
legal and moral responsibility for the safety of the ship and for the well-being of
every person on board. Because of this great responsibility, and because of the
perils of the sea, the law affords unique authority to a ship’s master. Maritime
law recognizes that a ship’s master is in supreme command. At sea, the master’s
word is law.
Surprisingly, there is very little written in court decisions, in statutes, or in international
instruments that describe a shipmaster’s authority. The International
Maritime Organization’s (IMO) International Management Code for the Safe
Operation of Ships and for Pollution Prevention (ISM Code) in section 5.2 comes
closer than any other international instrument in recognizing a master’s authority,
but it does not define the extent of the authority. Modern laws and court decisions
seem to take for granted the extraordinary authority of a ship’s master relating to
vessel operations.
Today’s courts continue to enforce traditional concepts of a shipmaster’s authority
as the person who is primarily charged with the management, care, and
safety of the ship, its cargo, and crew. The master’s authority is not derived from
land-based concepts of employment law, but rather, its source is in the commercial
shipping practices first recorded in the Middle Ages. Because of long
voyages and little or no communications, ships’ masters needed to have as much
legal authority as shipowners to act on behalf of the vessel. For this reason,
maritime law, in many ways, treats shipmasters more like shipowners than like
However, shipmasters also have responsibilities commensurate with their
authority. Shipmasters’ responsibilities are more clearly defined in law than are
their authorities. For example, shipmasters can be held personally liable for all
contracts signed on behalf of the vessel, including contracts for repairs, supplies,
and other necessaries. Shipmasters can be held personally responsible for paying
crew wages, even though the shipowner has not paid either crew or master.
Shipmasters can be held criminally liable for abandoning a crewmember in a
foreign port, while a shipowner, who has abandoned master and crew, is not
held criminally liable. A shipmaster can be held criminally liable for not going
to the rescue of persons in distress at sea, but a shipowner who orders the master
not to divert to the rescue will not be held so liable. Shipmasters can be held
strictly liable for pollution crimes, even when they did not commit a criminal
act, and even when the pollution incident was caused by the shipowner’s act or
Even though the law continues to recognize a shipmaster’s legal authority, modern
communications and technology have enabled shoreside management to
become increasingly involved in detailed decisions about a ship’s operations.
Today’s shipmaster must be responsive to directions from shoreside management,
even on minute details. At the same time, shipmasters’ shipboard administrative
responsibilities have increased. Today’s reality is that actual authority is
shifting from shipmasters to shoreside management while shipmasters’ responsibility
for ship operations is increasing. And, as several recent incidents have
demonstrated, when something goes wrong with a ship’s operations, it is the
shipmaster, not the shoreside management that is often held accountable.

MLC 2006 seafarer definition
The MLC 2006 consolidated several ILO instruments, and it also standardized
definitions that were not always consistent in them. One of the most important
MLC 2006 definitions is that of a ‘seafarer’. The MLC 2006 seafarer definition is
important because it determines who will be protected by the Convention.
The MLC 2006 seafarer definition is very broad. It is intended to include as many
workers as possible in the Convention’s protections. It defines seafarer as ‘any person
who is employed or engaged or works in any capacity on board a ship to which
this Convention applies’. A shipmaster is considered a seafarer under the MLC 2006
Almost all persons working in any capacity on any ship covered by the MLC
2006 could be considered seafarers and would be accorded the Convention’s protections.
The seafarer definition is not limited to those persons involved in navigating
or operating the ship. Bridge and engine room personnel as well as cruise ship
hotel staff, waiters, musicians, hairdressers, casino workers, and bar tenders are all
seafarers under the MLC 2006. Some workers on ships are clearly MLC 2006 seafarers
and some are not. Workers who only work briefly on a ship and who normally
work ashore, such as port State control inspectors and shipyard repair technicians,
would not fit into the MLC 2006 definition of a seafarer.
In those cases where it is unclear whether some categories of workers are seafarers,
the MLC 2006 authorizes flag States to determine whether a category of workers
are to be regarded as seafarers for MLC 2006 purposes. For example, are private
armed security teams, scientists, guest entertainers, surveyors, and others performing
specialist functions that are not part of the ship’s routine business seafarers? In
such questionable cases the shipowner should seek clarification from the vessel’s
flag State. The flag State must consult with the shipowner and trade union organizations
concerned with the question. Resolution 7 that was adopted along with the
MLC 2006 provides guidance to flag States in determining whether questionable
categories of workers are seafarers. Factors to be considered include: how long the
persons stay on board, the frequency of their working on board, the location of
their principal workplace, and the purpose of their work.