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MCA investigates alleged breach of the MLC – would your ship pass the test?

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Dean Richard Wilson v. The Secretary of State for Transport, Princess Cruise Lines Ltd and Another [2015] EWHC 2330 Admin

The English High Court has ruled on a claim for judicial review of a decision made by the Maritime and Coastguard Agency (“MCA”) regarding a dispute between a seafarer employee and his former cruise ship company employer. Judicial review is a procedure which, under English law, allows the courts to review and rule upon an administrative action by a public body such as the MCA. In this case, Mr Wilson’s complaint that his employer had breached the Maritime Labour Convention (“MLC”) was found by the Court to have been “rightly rejected” by the MCA. The ship in question was flagged in the UK and, as such, although not calling at a UK port at the material time, came within the MCA’s jurisdiction. The key MCA decision was also ruled to be “fair and unbiased”. 

Although the claim was dismissed, it has particular relevance as it concerns the first time the MCA had been tasked with enforcing the regulation under consideration. It serves as a reminder to shipowners (and, indeed, masters) of the potential consequences of an alleged breach of the MLC that the MCA is asked to investigate. At best, this might entail detailed investigations and, at worst, if the complaint is found to be justified, could lead to financial and custodial penalties.    

The background facts

Mr Wilson was a fleet trainer, contracted to work on board a cruise ship for a probationary period of just over two months. The underlying dispute derived from Mr Wilson’s belief that his employer had terminated this employment in response to, or retaliation for, complaints he had made about the employer’s conduct towards him. 

When the situation was not addressed to Mr Wilson’s satisfaction by his employer, he asked the MCA to investigate, specifically alleging that he had been ‘victimized’ in breach of MLC Regulation 5.1.5(2) which provides: “Each Member shall prohibit and penalize any kind of victimization of a seafarer for filing a complaint.” At the material time, this provision was given effect to in the UK by regulation 13(5) of the Merchant Shipping (Maritime Labour Convention) Survey and Certification Regulations 2013 which translates the MLC’s concept of “victimization” as the concept, familiar in UK law, of subjection to any “detriment”. The UK regulations state: “the shipowner and the master of a ship must ensure that a seafarer is not subjected to any detriment on the grounds that the seafarer has lodged a complaint, whether through an on-board procedure or to the MCA, alleging a breach of the requirements of the Maritime Labour Convention.” Both the MLC and the UK regulations refer to an allegation of a breach of the MLC.

Mr Wilson was also unhappy with the results of the MCA’s initial response and escalated his complaint such that there were several reviews within the MCA itself, none of which found in his favour, as well as an external report carried out by the Independent Complaints Assessor (ICA) which also rejected his allegations that the MCA had failed to enforce the MLC Regulations and that it had demonstrated bias towards his former employer. Mr Wilson then sought and was granted (albeit on his second attempt) permission to bring a judicial review of the MCA’s conclusions – his various complaints including the contention that the MCA persistently failed to investigate his complaint fairly and without bias. To try and resolve the dispute, a fresh investigation was carried out by the MCA; yet again, Mr Wilson’s complaints were deemed ill founded. Mr Wilson, representing himself, opted to continue with the judicial review proceedings. 

Judicial Review by the High Court 

The specific decision on which judicial review was sought was the MCA’s letter of 1 October 2014 (albeit with an important surrounding context involving several prior internal investigations) communicating the results of its ‘independent assessment.’ The letter rejected Mr Wilson’s allegations of bias by the MCA and dismissed his allegation of a breach of the MLC by his employer. It was also made clear that the employment was considered to have been terminated for reasons other than the fact that he made a complaint against the company. Mr Wilson submitted a number of complaints to the Judge in respect of this decision (including that the letter was itself tainted by bias, that it was procedurally unfair and that the reasons were inadequate and incoherent). However, the Judge held that Mr Wilson “has not shown any grounds on which the decision of 1 October ought to be quashed or the MCA ought to be ordered to take any further action” and dismissed his claim.  

The critical point for the MCA to consider, in the Judge’s view, had been whether Mr Wilson had been “subjected to any detriment on the grounds that [he had] lodged a complaint… alleging a breach of the [MLC]”: Regulation 13(5) of the Survey and Certification Regulations. Within his discussion, the Judge made clear that the final, fresh investigation by the MCA, in May 2015, correctly identified the heart of the case. In his view, regulation 13(5) was never engaged because Mr Wilson never made a complaint to his employer alleging a breach of the MLC. His various complaints and chiefly the complaint that his employment was terminated because he had questioned the commitment of personnel at the company to its ‘Core Values’ were not allegations of MLC breaches. As such, these issues were not matters for the MCA under the regulations.

Comment

Given that the MCA ‘rightly rejected’ Mr Wilson’s allegation that his employer breached the MLC/regulations, the Judge observed that the entirety of his case in the judicial review was academic. 

However, the importance of this case for potential claimants and defendants alike is not the final outcome, which very much reflects the particular nuances of the circumstances and personalities involved, but rather the underlying potential for exposure of owners/masters via an MCA investigation if an allegation is made that a shipowner/master is in breach of the MLC. In this case, the ship was UK flagged, but it should be remembered that the MCA will also have jurisdiction over non UK ships which call at a UK port (per MLC Regulation 5.2.2).

Although, in this case, the seafarer’s complaints were shown to be unjustified, no doubt owners, masters and crew will be alive to the possibilities of such allegations being made in future cases and the potential for redress via the MCA and potentially the English courts.

Michael Volikas

Michael Volikas Head of Shipping

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