Crew Fatigue

by John Morris & Miranda Hill

Introduction

Accidents have been reported across all sectors of the maritime industry caused, either entirely or in part, by seafarer fatigue. In the large yacht sector, fatigue amongst the crew onboard the Lady Candida was reported by the Marine Accident Investigation Branch (‘MAIB’) to have been a contributing factor to the fire that engulfed (and eventually led to the sinking of) that vessel in July 2007. More recently, investigations by the MAIB into the running aground of the Niamh Aine (a fishing vessel) at Lough Swilly in Ireland revealed that crew fatigue was the principal causative factor: the crew had been working up to eighteen hours per day, with the result that the skipper fell asleep as the vessel approached port. The number of reports citing fatigue as a principal cause of an accident or a loss at sea continues to increase.

As a result, a new European research study (‘Project Horizon’) was recently launched to examine the way in which fatigue affects the ability of seafarers to process, evaluate and take decisions based on information presented to them.  The overall aim of the project is to improve safety at sea and provide a standardised ‘toolkit’ for managing fatigue. The issue of fatigue is also addressed by the Maritime Labour Convention (‘MLC’), through a comprehensive set of provisions concerning (amongst other things) the accommodation, working hours and safety of crew onboard all ships.

This article will examine the research which has been carried out in relation to fatigue, and the issues raised which affect the large yacht sector. It will then go on to evaluate the impact of key provisions of the MLC in this area, as they will affect yacht brokers, owners and management companies.

Research into fatigue at sea

The Cardiff University Programme

The most comprehensive study into the issue of seafarer fatigue was carried out by researchers at Cardiff University. The report was published in November 2006, following a six year study.

Like many studies and consultations, this study did not consider the large yacht sector. Instead, it focused mainly on fatigue experienced by crew working on ferries, tankers and offshore support, supply and standby vessels. However, many of its findings are of equal relevance to crew working within the large yacht industry, and should be considered by owners, brokers and management companies, particularly in the light of the provisions of the MLC, which are considered in more detail below.

The study found that there were several risk factors that contributed to fatigue, all of which were inter-related and which were unique to the environment in which seafarers work. These were noise, motion, night work, frequency of port calls, length of tour on the ship, presence of physical hazards and number of hours worked. The report mentioned that many crew recorded less working hours than they had actually worked – the total number worked being far in excess of those permitted by the current legislation on working time.  In addition, one in four watch keepers reported having fallen asleep on duty, and were concerned about the potential for collisions.

The report concluded that:
* the potential for fatigue at sea is high due to the number of risk factors for it that co-exist on board ships, and that it is the combined effect of these factors, rather than any one in particular, that causes fatigue;
* existing strategies to combat fatigue (IMO guidance, European legislation on working time) are largely ineffective, and that there is a general absence of awareness of the implications of fatigue in the industry;
* there are three levels in addressing fatigue (legislation, company policy and personal awareness), which must interact in order to have a positive effect on the issue of fatigue across the industry;
* fatigue management programmes could be developed for dealing with fatigue at sea, and have been successful in other sectors; and
* it would be helpful to have an industry standard measure of fatigue.

Project Horizon

Project Horizon picks up on the last two of the above points raised by the Cardiff University Programme. The aims of the Project are to:

* establish the types of watch keeping patterns that are most likely to lead to fatigue in watch keeping officers;
* obtain data from the watch keepers following those patterns about their decision making and performance in the simulated environment;
* use the data obtained to identify the effect of fatigue on the decision making and performance of watch keeping officers;
* develop a ‘fatigue management toolkit’ which can be used by regulators, ship managers, flag and port states and the IMO to develop a set of recommendations to improve safety and reduce fatigue at sea.

The project will use bridge, engine room and liquid cargo handling simulators to test the performance and decision making of sixty participants (all deck and engine room officers) as they perform watch keeping duties over seven day periods. It will measure the level of fatigue experienced by participants and report any corresponding limitation in their ability to carry out typical duties on board ship safely and effectively.

Implications for the large yacht sector

In practical terms, the implications of this research for the large yacht sector are similar to those of the MLC. Both the MLC and Project Horizon seek, through improving conditions for seafarers, to reduce the risk of accidents at sea and to create better working conditions for seafarers. Set out below are the key provisions of the MLC that are designed to tackle (whether directly or indirectly) fatigue amongst seafarers, together with an analysis of their impact on owners, brokers and management companies within the large yacht sector:

Working Time:  MLC Regulation 2.3/Standard A2.3

Regulation 2.3 places an obligation on ILO Member States implementing the MLC to ensure that seafarers’ hours of work and rest are regulated. There is also an obligation to establish maximum hours of work or minimum hours of rest over given periods, that are consistent with the provisions of the MLC.

The relevant provisions are set out in Standard A2.3, and mirror the provisions of the current EU Directive that deals with seafarers’ working time (Council Directive 1999/63/EC of 21 June 1999). Under the MLC and that EU Directive, the limits on hours of work and hours of rest are as follows:

* maximum hours of work shall not exceed 14 hours in any 24 hour period, and 72 hours in any 7 day period;
* minimum hours of rest shall not be less than ten hours in any 24 hour period, and 77 hours in any seven day period.

Both the MLC and the Council Directive further provide that in the event of an emergency relating to the ship, or to another ship to which assistance is given, the master has the right to require the seafarer to perform the necessary work to secure the safety of that ship until the normal situation is restored, Afterwards, any seafarer involved should be given adequate rest.

There is nothing new or revolutionary in the MLC about working time: as noted above, its provisions are identical to the current EU legislation. As non-compliance with that EU legislation is currently high, many management companies and captains may question whether anything will really change in this area when (and if) the MLC comes into force.

There are two key issues in relation to fatigue and working time which should, however, make those working in the large yacht sector pause for thought. First, tired seafarers are more likely to make mistakes or be unable to react quickly to emergency situations. Any accident or ‘near miss’ - especially if found to be caused in part by crew fatigue - will, at the very least, result in negative publicity. This may impact on the ability of a broker to market a charter, and/or the value of the charter itself, which will, in turn, impact on the revenue received by the owner. In addition, there may be difficulties in finding reliable, experienced crew for the yacht in the future, in a market where there are already reports of crew shortages. 

Shipowners’ liability: MLC Regulation 4.2

The second issue concerns shipowners’ liability. Owners in particular should also be aware of the provisions of Regulation 4.2 and Standard A4.2 of the MLC.  These state that each Member of the ILO which ratifies the MLC must ensure that there are measures in place giving seafarers employed on its ships the right to material assistance and support from the shipowner with respect to the consequences of sickness, injury or death occurring while they are serving on the ship.

In particular, Standard A4.2 states that shipowners shall be liable to, (amongst other things):

* bear the costs for seafarers working on their ships in respect of sickness and injury of the seafarers occurring between the date of commencing duty and the date upon which they are deemed duly repatriated, or arising from their employment between those dates;
* provide financial security to assure compensation in the event of the death or long term disability of seafarers due to occupational injury, illness or hazard, as set out in national law, the employment agreement or any collective agreement;
* bear the cost of medical care, including medical treatment and the supply of medicines, and board and lodging away from home until the seafarer has recovered (or the sickness or incapacity has been declared to be of a permanent character);
* pay burial expenses in the case of death occurring on board or ashore during the period of engagement.

As fatigued seafarers are more at risk of causing or contributing to an accident or injury, owners should consider the rules on working time carefully. If the MLC comes into force and becomes part of the national law of most EU and Red Ensign states, owners take a risk if they choose to save on labour costs and /or allow crew to work beyond the prescribed limits. If an accident or injury occurs, owners (and perhaps management companies themselves) will be liable to bear the costs outlined above. The risk is not only financial: the reputation of the owner, management company and captain could also be compromised.

Accommodation: MLC Regulation 3.1/Standard 3.1

The MLC is highly prescriptive about crew accommodation, setting out its minimum dimensions, its proximity to other parts of the ship and how it should be heated and ventilated, amongst other things.

The large yacht sector was not consulted whilst the MLC was being developed, so it is perhaps not surprising that the effect of these provisions will hit it hardest. The impact on the construction of new yachts to be flagged in ILO Member States is significant. Owners will need to negotiate carefully on the extra fees that may be incurred for the design and build of a yacht that is MLC-compliant in terms of crew, but which does not compromise the accommodation for the owner and guests in being so.

There is, of course, the possibility that some (or perhaps all) states will implement the provision of the MLC permitting ‘measures of substantial equivalence’ to be put in place in respect of certain Regulations and Standards. Under Article VI(3), Members are permitted to implement a certain Part of the MLC through measures of substantial equivalence if they are ‘not in a position to implement the rights and principles in the manner set out.’ Whether or not flag states will decide that the implications for the large yacht sector of these provisions merit measures of substantial equivalence being used remains to be seen.

Conclusion

Legislation affecting the maritime industry is becoming increasingly seafarer-orientated often at the expense of the more direct interests of owners, management companies and brokers. These parties are therefore facing greater legal and regulatory burdens.

The implications of this for the industry, and in particular, the large yacht sector, may at first sight seem bleak: increased duties towards crew, stringent requirements for yacht design, potential liability and compliance costs all adding to the existing costs associated with owning and managing a superyacht. 

The MLC, as currently drafted, will fundamentally affect large yacht design. Therefore, owners could, for some time after it comes into force, experience delays and/or increased costs as shipyards and architects adjust. Guest and owner accommodation, despite the provision for measures of substantial equivalence, may be compromised.

The increased burden of liability for crew members who fall ill or are injured whilst on board will again only serve to increase the costs of running and managing a yacht on a yearly basis. Owners will need to check whether this is something that could be insured and, if not, consider creating a contingency fund for these circumstances.

There are, however, some elements of a silver lining to an otherwise grey cloud. Compliance with the MLC, whilst costly, should reduce the risk of accidents and promote better working relationships with crew. At a time when crew shortages are reported widely throughout the maritime industry, maintaining an efficient and experienced crew is invaluable. Crew are most likely to seek the best working conditions and avoid yachts on which poor working conditions are reported.

The MLC is not yet in force. It may never come into force. However, owners should nevertheless consider implementing measures to relieve crew fatigue in order to maintain a high quality of service and to thus ensure the ultimate safety of themselves, their crew and their asset.

January 2010