As the novel coronavirus called COVID-19, which has been spreading uncontrollably and sweeping across the globe since it had been shown up in Wuhan, China in December 2019, has affected the maritime sector which constitutes a large part of global trade as is the case with national economy and business. Despite the fact that ships encounter disruptions whilst putting in ports, loading, and unloading operations and administrative transactions, the continuity of maritime transportation is of capital importance for the purveyance of food and medical supplies. There are certain regulations and practices that should be taken into account both in terms of seafarers and ship owners during the pandemic process in which ships will continue operations.
In the following days after the first COVID-19 case was detected in Turkey, several administrative measures for maritime transport have been announced by the Minister of Transport and Infrastructure. The first obligation for the ships which were planning to put in any Turkish ports was to make harbor notifications to the port authorities 48 hours before the ships to enter the Turkish port. It was decided that the ships should be investigated by the Coast Health Inspection Center in terms of the crew that joined the ship in the last 14 days and the last 10 ports the ship touched at. According to this decision, in case of the ship's contact history with any of the risky countries determined by the ministry was detected, the coastal health officials completed the ship's health checks in the meantime and if the certificate of conformity was issued, the ship was allowed to contact with outside. In this regard, the coast health team go onboard firstly, all crew and passengers are examined in pandemic inspection, and in the event of case finding, a 14-day quarantine shall be applied. On 22.04.2020, the General Directorate of Maritime Affairs announced that it was instructed to provide convenience in the changes to be made as to quarantine decisions, considering that the seafarers are key-workers likewise the ILO has stated. If the ship is given free pratique, the bridge was disinfected by the agency of the ship, and then the harbor pilot was taken to the ship. The crew on the incoming ships to the Turkish ports were not allowed to leave the ship in accordance with the quarantine restrictions imposed by several Turkish port authorities. In that process, Turkish citizen seafarers who have needed to leave the ship due to personnel change are transported to the quarantine centers for 14 days with patient transport ambulances and were allowed to leave only after the 14-day quarantine period. In order to protect the seafarers and port personnel by minimizing the contact, it was decided to extend the validity period of seafarers' certificates, such as STCW, identity cards, up to 3 (three) months from the expiration date and to receive applications only through the electronic system.
Most of these administrative measures, implemented in coordination with the General Directorate of Maritime Affairs and the Ministry of Transportation, were removed by entering the normalization process as of 01.06.2020. However, it is understood from the public statements that the measures might be put into practice again if there is a serious increase in the number of cases such as the second wave of epidemics.
In addition to the general measures mentioned above, it is observed in both the statements of the Ministry of Transport and the bulletins published by international organizations that the necessity of taking strict measures to protect seafarers’ health by ship owners and agents is emphasized. Seafarers’ rights are set out in the ILO’s MLC, 2006, which establishes minimum requirements for almost all aspects of working conditions for seafarers, such as conditions of employment, hours of work and rest, accommodation, food, health protection, medical care. In accordance with the provisions of these contracts and due to the risks raised by the pandemic, in addition to measures taken by the administrations to prevent the seafarers from being affected by the Coronavirus, the employer must provide protective equipment, explain the risks that seafarers may encounter on the ship and take other protective measures within the scope of the obligation to protect the health and safety of the employee.
There is no consensus concerning the protective measures and equipment to be taken against the coronavirus on board and there are separate regulations in each country. In consequence, a joint statement issued by the Officers of the Special Tripartite Committee of the Maritime Labour Convention (MLC, 2006) and stressed that clear directions should be given to port authorities and local health authorities to enable ships to continue trading, and to enable the swift disembarkation and repatriation of crew members. (https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/statement/wcms_740130.pdf) ILO Director-General Guy Ryder has asked governments “to ensure that, in these challenging times, seafarers are adequately protected from the COVID-19 pandemic, have access to medical care, and can travel to and from their ships, as necessary, in order to continue to play their crucial role”.
The International Chamber of Shipping has published guidance entitled “Coronavirus (COVID-19) Guidance for Ship Operators for the Protection of the Health of Seafarers” explaining actions to be taken on the subject outbreak in detailed, and it is useful to refer to this guide as per the current circumstances. Particular measures mentioned in the guidance are as follows:
Ship operators should provide specific guidance and training for their seafarers regarding handwashing when to hand rub with an antiseptic instead of handwashing, and how to do this; how to cough and sneeze hygienically appropriate waste disposal; when and how to use masks; avoiding close contact with people suffering from acute respiratory infections.
It is important that seafarers should be given the time and opportunity to clean their hands after coughing, sneezing, using tissues, or after possible contact with respiratory secretions or objects or surfaces that might be contaminated.
Until the end of the COVID-19 outbreak, all ships are advised to provide passengers and seafarers with general information on COVID-19 and its preventative measures and implement pre-boarding screening.
Ship Operators should provide guidance to crew on how to recognize the signs and symptoms of COVID-19. The crew should be reminded of the plan and procedures to follow if a passenger or crew member on board displays signs and symptoms of acute respiratory disease.
A new debate in the doctrine on whether this event would be considered as an occupational accident if the employee is infected with the epidemic while he was working under the authority of the employer, was brought up in terms of employees who had to continue to work during this lockdown period. Although the Supreme Court has a recent dated case where a truck driver who has been abroad, shown disease symptoms after he came back home and was diagnosed with influenza, accepts the occurrence of the epidemic as an occupational accident, the decision should not be assumed as a definite rule for all infection cases, as the opposing view on the decision and the fact that the world is facing such a pandemic for the first time. Detecting contamination time, transmission moment, and causes of coronavirus are not as easy as in other diseases, as this virus can occur anywhere without being limited to only one region or species. In this respect, in the circular numbered 2020/12 dated 07.05.2020, published by the Social Security Institution, the COVID-19 virus named as an infectious disease, and stated that the insured who are exposed to this epidemic and apply to healthcare providers should be considered as "patients", and this incident does not require to be reported as "occupational accident” or “occupational disease".
In Turkish law, different legal regulations may require to be applied for the incidents in which seafarers suffer due to and this difference arises from the flag of the ship on which the seafarer employed. Crewmembers employed on Turkish flagged ships are "insured employee" within the meaning of Law No. 5510, and thus Turkish Maritime Labour Law and Turkish Labour Law, which generally impose strict liability on occupational health and safety of employees, is applied besides the SSI provisions. The infection of a seafarer working on a Turkish flagged ship during the epidemic period constitutes “material damage at the workplace” and therefore it is considered an occupational accident. On the other hand, in terms of the provisions applicable to incidents occurred in foreign-flagged ships, the Turkish Code of Obligations is taken as a basis; and the provisions regulating both contracts of service and tort stipulated in this Code are not as strict as the employer's obligations within the context of labor law. As to such infections of seafarers serving on foreign-flagged ships, the causal relation, in particular, will have to be argued case by case. To prove that, the infection has occurred under the employer's authority might be difficult in terms of seafarers and would have to be discussed before the Court. Likewise, it is surely important for shipowners that being able to prove that protective measures have been taken in line with international standards.
Despite the fact that employees who caught the coronavirus could not be interpreted as an occupational accident according to the circular dated 07.05.2020 issued by SSI and many measures obligated in the first instance are removed at present, ensuring protective equipment and taking safety measures against the virus are still obligatory considering that the circular is not valid for foreign-flagged ships, the Supreme Court had a current decision and that the virus continues to be infected.
In this respect, in order to prove that protective measures have been taken in accordance with international standards by ship owners, even if quarantine measures have been invalidated by the government, it will be useful to deliver protective equipment such as masks, face shield masks, gloves, disinfectants to the seafarers against by his signature, to document the training and measurement-evaluation about the pandemic, and to receive opinions and plans from the occupational safety experts who are experts in the field of working conditions at sea.
Please do not hesitate to contact us for legal assistance.