Taking care

The meeting was opened by referring to the ICS' contribution to the production by the International Maritime Organisation (IMO) in 1996 of "Guidelines on the Allocation of Responsibilities to Seek the Successful Resolution of Stowaway Cases". In November 1997, the IMO Assembly adopted a resolution urging all IMO members to implement the Guidelines and to accept the responsibilities outlined in them. The resolution calls on the industry to provide the IMO with information on the effectiveness of the Guidelines. To do this, the ICS believes that the industry has to provide governments with statistics which highlight the extent of the problem and give some indication as to the ports and areas of the world, and the nationalities of the stowaways where the problem exists. The ICS would like to be in a position to indicate not only those ports where the problem is rife, but also those countries where the authorities generally adopt policies and practices which do not conform to the IMO Guidelines and make it difficult for stowaways to be landed.

Identifying problem areas

It was suggested that as the P&I clubs handle stowaway cases on behalf of the majority of the world's merchant fleets, they must hold a lot of statistical information which, if consolidated, would provide a reliable base for the industry to identify and begin to address the problem areas. The UK P&I Club alone provides insurance of third party liabilities to 20% of the world's merchant fleet, from more than 62 countries and, as such, an astonishing 305 stowaway cases were successfully dealt with by the UK P&I Club in 1996.

Providing information

The ICS asked if the clubs would be willing to assist by providing information which could be collated and used to put pressure on the IMO Member States to implement and put into practice the recommended Guidelines. The ICS is also keen to identify problem ports, particularly where access to the port areas is largely unrestricted in terms of security so that this problem can be addressed and pressure can be brought to bear on the relevant port authorities.

Once the database is in operation, the information collated will be available to the UK P&I Club. This will mean that the Club will have a clearer indication of the problem ports and this effective information can be used as a loss prevention tool to advise Members to take further precautions in those ports.

Since 30 August 1996, applicants for crew positions with the selected shipowners have been subjected to the Club's stiffer health tests. Of these, approximately 10% have been adjudged medically unfit.

The UK Club is determined to address the ample evidence, both anecdotal and statistical, which suggests that the quality of pre-employment medical examinations is one factor in the high number of repatriations and medical bills. The Philippines Overseas Employment Administration contract makes the employer liable when a seafarer suffers injury or illness during the term of his employment. The contract does not distinguish between work-related and other illnesses. Either way, the shipowner is liable for repatriation, seamen's wages, medical costs and any resulting disability costs.

Illness claims rising

Illness claims worldwide account for a substantial proportion of the Club's claims _ and many are below deductible and are paid for out of the Members' pockets. The Club's paid and estimated illness claims in 1994,1995 and 1996 amounted to $ 30m. For the 14 clubs in the International Group, the cost of claims in the Philippines rose from US$5.77 million in 1995 to US$7.18 million in 1996. In 1997, they have again been rising swiftly _ although the UK Club's proportion of those claims is now dropping.

The designated clinics carry out tests additional to those required by the Philippines Government. These include full blood count, liver function, hepatitis B, malaria, Aids, lung function and ECGs. The leading reason for rejection is abnormal liver function.

Achieving savings

The cost of the enhanced examinations is $80 per person _ and the Club pays the costs against the Member's record. The project would have achieved savings by identifying only a handful of unfit seamen who might have been repatriated or made illness claims.

The Club is planning to invite more Members to participate in the Manila scheme and to extend it to other countries including Europe, China and India.

Whilst shipowners are not specifically required to provide hearing tests by law, many are actively or seriously considering, the introduction of audiometric assessment programmes as part of a `good housekeeping' policy.

The human hearing mechanism may wear out naturally, possibly by the effects of old age, or prematurely by exposure to excess noise.

Living with the effects

The effects of permanent hearing loss vary from minor annoyance for the sufferer, e.g. sounds or speech become muffled so that it is difficult to differentiate between similar sounding words or identify between the telephone ringing and the sound of the front door bell. He or she may also hear a permanent ringing noise in their ears known as tinnitus. This may only be an irritant in some cases, but in others their life can be made a misery as the tinnitus may also disrupt normal sleep patterns. Sufferers have a distorted sense of volume, asking people to speak up and then complaining "there is no need to shout". They will also find it difficult to use a normal telephone and require radios and televisions to be turned up to a very high volume.

As part of a routine health and safety survey, shipowners should arrange for an audiometric risk assessment/formal noise assessment to be carried out on board, both at sea and when the ship is carrying out cargo loading and discharge duties in a port. A record of any assessment should be kept for future reference. The idea being to identify problem areas on the ship, which in turn enables the shipowner to put into place effective loss prevention measures.

The audometric survey will identify in detail the problem areas on board any particular ship but an informal test may be carried out by simply observing if any members of the crew have to shout to be heard or are having difficulty being understood by someone only six feet (two metres) away. If this is the case a sound level meter should then be used to establish the extent of the problem.

Tackling the problem

If it is established that there is a problem due to excess noise, the shipowner should do everything possible to reduce the level of noise at the source.

In an ideal world all noisy machinery should be replaced by newer quieter improved models,but for obvious reasons this is not always possible. The next step is therefore to attempt to isolate the source of the noise. Many types of hand tools in particular are now available with dampening devices, the use of these machines should be preferred and enforced if available on board. Also as a general precaution for noise at all levels, the exposure to the offending noise should be monitored and the exposure to same kept to a minimum.

Finally, if the above can not be accomplished, effective personal hearing protection must be issued to crew members at risk. Such protection and the enforcement of use should not only be made available to the engineering crew members, this equipment must be available for use by any other crew members who may be exposed to excess noise, for example during cargo operations.

Hopefully, if an effective safety assessment is made in the first instance and the correct preventative measures are then established, the large number of occupational deafness claims brought against Members can be effectively reduced.

Many of the Club's Members are still falling foul of the Immigration (Carriers Liability) Act 1987, henceforth known as the CLA, despite their best efforts to conform to the regulations. This onerous legislation is borne by our Ro-Ro passenger operators on entering UK Ports, where illegal passengers are detained by the authorities because they are found to be travelling without the correct and/or acceptable documentation. Other Members have also been subjected to various penalties as found under this particular legislation, where individual crew members and/or their families have been found to contravene the regulations, albeit a minor irregularity.

Offences under CLA are often thought of as being based on the doctrine of `Strict Liability' as found under the Laws of the United Kingdom, where liability arises if the harm to be prevented takes place, whatever care and precautions have been taken, as in these particular cases, by the Club's Members. Where strict liability exists there are certain, though limited, defences to liability, but `having taken reasonable care' is not amongst them.

Accumulation of penalties

The most common penalty to be faced by the Member despite having no direct involvement in the commision of the offence, is a fine of £ 2000, per incident, under the terms of the CLA. The action is usually instituted by the United Kingdom Home Office Immigration Service and directed against the `carrier' _ in this case the Member. It should be noted that individual `carriers' could face numerous individual fines, amounting to many thousands of pounds.

A further penalty that may have to be faced by the Member after being found liable under the CLA, is under the `Immigration Act 1971, Directions to Remove a Person or Persons'. This particular piece of legislation in essence holds the offending `carrier' responsible for the cost and/or making the arrangements for the removal from the UK of the person detained under the CLA, should he or she be refused leave to enter the UK. It should be noted that `Removal Directions' may be issued by the Home Office, weeks, months and even years after the attempted illegal entry to the UK.

All is not bad news however, over the years the Club's Managers, acting on behalf of the membership, have had a large number of successful appeals against penalties imposed on Members by the UK Home Office Immigration Service. With the assistance of a `specialist consultant' we are able to advise Members who find themselves subjected to penalties instigated against them under the CLA. We therefore advise all Members to contact the Club's Managers immediately should they find themselves facing allegations instituted by the UK Home Office Immigration Service.

Mounting compensation

It is becoming increasingly difficult for owners to avoid meeting claims to passengers injured ashore, but we hope that there would always be the possibility of a recourse action against a negligent third party. In practice this may prove to be difficult, as it may not be possible to fully recover the amount paid by the owner in compensation to the passenger from the negligent third party. For example, it is possible that the owner may have to compensate a passenger, in accordance with American law, for injuries sustained by that passenger as a result of a negligent act by a third party in, say, India. That third party may only be obliged to pay damages to the owners in accordance with the levels of compensation payable in India which would be far less than the damages paid in the USA.

Direct liability

Under the European Directive (13th June 1990 Package Travel, Package Holidays and Package Tours [90/314/EEC]) a duty is imposed upon tour operators to be responsible for personal injuries occurring to their customers, wheresoever the injury may occur on the tour, regardless of the identity and nationality of the actual negligent party. Therefore, passengers may claim directly against the tour operator for an injury occurring in, say, a hotel. This leaves the tour operator with the problem of recovering the damages from the hotel concerned. Under this directive, many cruise operators would be deemed to be tour operators. In the circumstances, care does need to be taken in the selection of third party shore excursion operators and suppliers of other services to passengers. This care should include not only proper vetting of the suppliers concerned but also to include where possible and practicable, a contract whereby the supplier will fully indemnify and hold the cruise operator harmless for any injuries or accident occurring while passengers are in their care. The contract should require the supplier to insure this obligation and for the insurance to be valid in all jurisdictions, not just the local jurisdiction.

Most notably, crew members and passengers without valid certificates of vaccination for yellow fever can expect to be refused entry into Brazil, causing obvious problems.

Furthermore, for each offence a `Notice of Infraction' is issued. Each Notice carries a potential fine of up to US$2,000. An example of a recent case in Santos involved a passenger ship which was found by the authorities to have 169 un-vaccinated people on board. 169 Notices of Infraction were issued at US$2,000 and the Club's Managers were requested to provide a guarantee for US$338,000 on behalf of the Member.

It is therefore very important, in order to avoid possible fines and delays to ships, that owners, managers and crew of all ships trading from Brazil, make themselves fully aware of the necessary health requirements and regulations prior to arrival.

In some cases it may be possible to successfully defend and mitigate the fines, depending upon the circumstances. However, this can take two or three years of legal argument to achieve.

If a problem is encountered or further information is required, please contact the Club's Managers without delay.