Protection mechanisms of Polish seafarers' working conditions in the era of globalization and flag-of-convenience system
| Autor | Monika Tomaszewska |
| Cargo del Autor | Professor extraordinary. University of Gdansk. Expert of the Commission for the Codification of Maritime Law |
| Páginas | 379-389 |
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Maritime shipping has always been global and transnational by nature because activities in this sector traditionally have been based on moving ships from one country to another for commercial purposes. Historically, it has been quite common on ship-owners’ part to hire crew from various places in the world910. Such behaviours were justified sometimes by the necessity to fill vacancies appearing during the course of a voyage. However, there were other reasons such as hiring seafarers for convenience or for lower salary. It should be admitted that the most common reason for creating transnational crew on a ship was to employ cheap labour with better skills than the previous ones had boasted. Transnational ship ownership and management have also been a normal practice since the beginning of sea voyages.
Due to the above mentioned factors shipping is an example of this sector of the economy where it is relatively easy to observe consequenc-
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es of a globalization process911. The current process of globalization has had a massive impact on the maritime shipping industry, however, such impact seems slightly different than in other industries.
There are some specific symptoms which characterise processes of globalization in the shipping industry, including, for instance, conducting professional activities on the basis of supranational structures and performing works for the same. Supranational "network" in respect of maritime shipping is formed by maritime banking sector and insurance sector, designated public and private institutions in charge of certifying ships, as well as legal corporations that support international trade transactions. Shipping companies operate in similar structures and circumstances much like ship-owners and marine agents. Multinational crew personnel are standard in the field of maritime industry.
The globalization process is also reflected by the movement of capital from countries with strong and extensive state control to the countries known as offshore states. The term "offshore" seems to closely correlate with tax haven countries. However, apart from convenient tax conditions by which we understand low or even no tax rates at all, these countries have even much more on offer. Namely, the offshore countries set forth for the companies registering head or branch offices in their territory only formal requirements of minimum financial or personal contributions, documentation, reporting, standards of safety etc. Running a business often takes place without imposing any duties that refer to an accounting, reporting, civil or social insurance and, above all, without excessive protection of labour market or imposing high social charges912.
Practice of flagging ships in foreign countries varies from the flow of capital to offshore countries. It relies on the registration of ships under the flag unrelated to the ship-owner and without a genuine link between state and ship, such organization being termed an open registry.
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The reasons for choosing an open register are varied and include tax avoidance, the ability to keep away from national labour and environmental regulations and the capability of hiring crews from lower-wage countries.
The phenomenon of reflagging ships through the open registry is also known as a flag-of-convenience FOC. Following the explanation given by the International Law Commission acting at the UN, FOC refers to flags of countries which grant their nationality to ships without genuine link between state and its legal system, such relationship between them being only formal and coming down to sometimes only an on-line registration of a vessel . Consequently, the state does not exercise any effective control over the vessel, nor does it hold any regular inspections. Under the flag-of-convenience system of ship registration, ship-owners may freely flag or re-flag their vessels, which means that they choose whichever country, selecting regulatory framework and tax system that suit their business strategy and also guarantee individual profits.
Globalization process and flag-of-convenience system have triggered structural changes to shipping regulations. Globally, maritime industry seems to play a role with no homogeneous legal system which could provide common foundation and principles of maritime shipping in a simple and unambiguous manner. Currently, legal space gets formulated by different legal systems, which gives an impression of a"patchwork" pattern913- consisting of various national legal regimes often supplemented with multilateral and bilateral agreements. Obviously, such systems may also rely on both international and European law.
In light of said factors, we cannot even treat such rules as a solid legal system. What we deal here with is rather a cluster of rules and provisions which belong to dissimilar standards, which further do not make up any holistic nor complete legal system governing maritime shipping.
Simple as it seems to assume that this stage of regulation causes numerous uncertainties regarding an application of varying standards,
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there arises a necessity to invoke a doctrine that ensures that "new forms of regulation are emerging, stopping the downward spiral, and bringing a new stability to maritime labour market"914. Its author undoubtedly refers to the new international agreement - Maritime Labour Convention which was proclaimed by the International Labour Organization in the year 2006. This legal act gives grounds for global and transnational regulatory framework covering a mixture of public and private instruments including government bodies, business associations or trade unions. For that reason, any legal person, public or private law body acting in maritime shipping have been involved in the formulation, monitoring and enforcement of provisions of Maritime Labour Convention915.
As defined hereinabove, legal and factual factors relating to globalization process have had an apparent impact on legal solutions adopted in national law, especially in Poland. Strong international...
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