Sixteen abandoned seafarers get reprieve in Kenya

Sixteen seafarers (the claimants) from South Korea, Indonesia and Vietnam were engaged upon a Kenyan registered fishing vessel, the FV RA Horakhty (the vessel) on various contracts. However, by October, 2021 they had not received their wages from as far back as March 2021, forcing them to institute an admiralty claim against the owners of the vessel for USD247,255 for wages up to October, 2021, the captain’s disbursements and the repatriation costs. The crew also filed a claim for their wages from the date of filing the claim to the date of selling the vessel and the costs of the claim. On all the above claims the crew also added interest. For whatever reason, the owners of the vessel filed a defence against the claim firstly, denying that they owed the crew the amounts claimed, secondly alleging that the Captain of the vessel, the owner of the vessel and the Kenya Maritime Authority had made a resolution to vary the crew salaries because of difficulties the owner was having in paying the amounts and thirdly raising some legal issues as to whether the crew could claim repatriation costs and whether the captain could claim disbursements. The crew responded by filing a reply to defence stating that there was no variation of the salaries and in any event the law, particularly the Constitution of Kenya, the Merchant Shipping Act, 2009 and the Maritime Labour Convention, 2006 (MLC) did not allow for such a variation, secondly emphasizing that since Kenya was a party to the MLC which by virtue of the article 2 (6) of the Constitution of Kenya was part of the law of Kenya, repatriation costs were payable under the MLC, section 105 (1) (a) of the Merchant Shipping Act, 2009 and article 19 (3) (b) and 41 of the Constitution of the Republic of Kenya and thirdly that the legal issues raised by the defendant were non-issues. The crew also filed an application to strike out the defendant’s defence.

Upon the application to strike out the defence coming up for mention on 29th December, 2021 the defendant agreed to pay the claimants, within 14 days, an agreed sum of over USD.311,000 failure to which the claimants would proceed with their application to strike out the defence. The 14 days lapsed on the 12th of January, 2022 and the application to strike out the defence was set for hearing on the 7th of February, 2022. At the hearing of the said application the defendant and the claimants entered into a consent that judgment be entered in favour of the claimants against the defendant as requested in the claimant's claim form and that if the defendant failed to pay the amount due and owing to the crew the crew would be at liberty to sell the vessel. Because of the time that has elapsed, the claimants claim is well over USD.400,000. The advocates representing the successful claimants are Okello Kinyanjui and Company LLP.

Comments

Since it was a consent judgment there will be no discussion of any legal issues resolved by the court.

However it is important to note that Kenya, being a party to the MLC, has by article 2 (6) of the Constitution, made the MLC a part of Kenyan law. The MLC is an instrument created to, among other things, protect the fundamental right of seafarers. Being an instrument to protect the rights of seafarers, the provisions of the MLC are, by virtue of article 19 (3) (b) of the Constitution, recognized as rights because they are not inconsistent with any provision of the Constitution particularly article 41 of the Constitution. Thus, Kenyan courts have a duty to protect seafarers’ rights which in the context of this case were the following:

1. Regular payment of wages to seafarers in full in accordance with their employment agreements (Regulation 2.2 (1) and Standard A2.2 of the MLC as read with article 19 (3) (b) of the Constitution)

2. Captain’s disbursements (Section 105 (1) of the Merchant Shipping Act, 2009 as read with article 19 (3) (b) of the Constitution)

3. Repatriation costs (Regulation 2.5 and Standard A2.5 of the MLC as read with article 19 (3) (b) of the Constitution)

Further, the MLC is a developing document and has undergone various amendments from the time of its adoption in 2006 and its coming into force on the 20th of August, 2013. Very crucial in these amendment are the 2014 amendments, which came into force on 18th January, 2017. The amendments require, inter-alia, that an expeditious and effective financial security system be put in place to ensure that shipowners provide compensation to seafarers and their families in the event of abandonment, death or long-term disability due to an occupational injury, illness or hazard. Up to the time the claimants had filed their claim, Kenya has not made a declaration of acceptance of the said amendments. It is important for nations to accept the 2014 amendments because abandonment insurance can mean the difference between a shipowner losing his ship at a ship auction brought about by judgment entered against the said shipowner and more importantly will encourage the early payment of abandoned seafarer claims. Indeed, had Kenya accepted the 2014 amendments earlier, it is possible that the claimants may not have stayed so long on board the vessel waiting for the judicial process to unfold.

However, the following challenges to the implementation of the financial security requirements brought by the 2014 amendments, seem to have emerged and have been identified globally, i.e.

1. Insufficient mechanisms in place to ensure that vessels cannot trade without valid abandonment insurance.

2. Whilst the definition of abandonment is quite clear, the circumstances surrounding abandonment and the relationships between flag States, shipowners, their insurers and other entities with a commercial interest in the vessel, are extremely varied.

3. While in a number of cases, P&I Clubs have responded promptly to applications and discharged their obligations as intended in others they have not responded.

It would seem to us that the identified challenges can be met in the following ways, i.e.

1. The challenge of insufficient mechanisms in place to ensure that vessels cannot trade without valid abandonment insurance can be met by accepting the 2014 amendments and having laws in place to ensure that ships have valid insurance. Kenya has a law to ensure that ships have valid insurance, i.e., section 15 of the Merchant Shipping Act, 2009.

2. With regard to the challenge of the varied circumstances surrounding abandonment and the relationships between flag States, shipowners, their insurers and other entities with a commercial interest in the vessel, are extremely varied it would seem that while accepting the 2014 amendments, countries should develop regulations that clarify the said varied circumstances. If Kenya were to accept the 2014 amendments, it should follow that with the development of regulations to clarify the varied circumstances.

3. With regard to the P&I Clubs that not responded promptly to applications and discharged their obligations as intended, it is imperative for Kenya, before accepting the 2014 amendments to find out from the relevant international bodies such as the International Transport Federation (ITF), which P&I Clubs have not responded as intended and black-list the same for ships flagged in Kenya.

Happily though, Kenya on the 4th of February, 2022, has submitted a notification of acceptance of the 2014 amendments and the said amendments should come into force for Kenya on the 4th of August, 2022. This is significant for Kenya and will enhance the protection of seafarers on Kenyan flagged ships and other ships that are within Kenya’s territory.