- The court rejects a preliminary attempt to enforce the dockers’ clause, to make lashing a cargo-handling activity.
- Facts state that the dockers’ clause was amended in February 2018 as part of an agreement between the ITF and the international maritime employers.
- Charterers and the shipping lines argued the legality of the clause.
- Four trade unions filed preliminary relief proceedings in court to enforce compliance with the clause.
- However, they were all rejected and the court refused to compel the three companies to comply with the dockers’ clause.
Under the majority of International Transport Federation (ITF) collective bargaining agreements, the crew onboard short sea and feeder ships are prohibited from lashing or unlashing containers if qualified dock workers that are members of an ITF-affiliated union are available to carry out the lashing instead, says an article published by International Law Office.
Dockers clause
This effort to make lashing a cargo-handling activity rather than a crew activity is set out in the so-called ‘dockers’ clause’, contained in collective agreements covering some 15,000 seagoing vessels worldwide.
Charterers in the short sea shipping and feeder market have challenged the legality of the clause, claiming that it does not enhance safety and is anti-competitive.
However, in August 2020 four trade unions, including the ITF, filed preliminary relief proceedings against two crewing agents and a shipowner to enforce compliance with the clause.
Facts
The dockers’ clause, formally known as the non-seafarers’ work clause, was amended in February 2018 as part of an agreement between the ITF and the international maritime employers that make up the joint negotiating group.
Under the amendment, crew members on short sea and feeder vessels that historically performed these activities were suddenly prohibited from carrying out lashing and unlashing activity on board ship if an ITF-affiliated dock worker was available.
The change was part of a five-year campaign by the ITF to “(re)claim lashing for dockworkers”.
The legality of the clause
Charterers in the short sea shipping and feeder sector have challenged the legality of the clause, arguing that they were not represented when the clause was negotiated and that claims by the unions that crew lashing was unsafe were incorrect.
The shipping lines argue that the practice of crew handling lashing operations should continue as the crew are best qualified and positioned to carry out the task.
Not only do they have the best knowledge of the specific vessel, but they have a natural incentive to carry out the lashing to the highest standards as their own safety depends on it.
While lashing and unlashing duties on deep-sea container vessels are already carried out by shore lashers, crew members have traditionally been responsible for the lashing of containers on short sea and feeder ships.
Preliminary case attempt
In August 2020 four trade unions – the ITF, Nautilus, Ver.di, and FNV – filed preliminary relief proceedings in the Rotterdam Court to enforce compliance with the clause.
The action was brought against crewing agents Marlow Navigation Netherlands BV and Marlow Navigation Company Limited (registered in the Netherlands and Cyprus, respectively) and shipowner Expert Shipping BV in the Netherlands.
Five charterers subsequently made an application to the court to join these proceedings and on 6 August 2020, the judge allowed this group of charterers to intervene in the proceedings on the side of the defendants.
Decision
In its decision, the Rotterdam Court rejected all of the claims made in the preliminary proceedings and refused to compel the three companies to comply with the dockers’ clause.
In its judgment, the court stated that it attached more importance to defendants’ and charterers’ interest in non-compliance with the dockers’ clause as compared with the claimants’ interest in the performance of said clause.
Due to the current COVID-19 epidemic, the court ruled that compliance with the clause was ‘onerous’ and that in the short term, the crew’s interests to work in a safe and healthy environment outweighed the claimants’ interest in compliance with the dockers’ clause.
The court also took the principles of reasonableness and fairness into consideration, commenting that:
Conclusion of the case
In view of the circumstances surrounding the conclusion of the Dockers’ Clause, it is not unthinkable that the outcome of the proceedings on the merits will be that the Dockers’ Clause is unacceptable in view of the principles of reasonableness and fairness.
While the Rotterdam Court found that urgency for interim relief as a result of non-compliance existed, the presiding judge ruled that a more extensive judicial review would be necessary to examine the factual and legal questions.
The claimants are now considering whether to instigate an appeal of the preliminary decision or proceed to the pending main proceedings where the court will extensively examine the matter.
Did you subscribe to our daily newsletter?
It’s Free! Click here to Subscribe!
Source: International Law Office
