Stranded KIwi Seafarers call for specific MIQ allocation

A leading academic lawyer who specialises in the law of the sea has slammed the government’s treatment of New Zealand seafarers stranded overseas because of the MIQ booking system.

Dr. Sofia Galani, Assistant Professor of Public International Law at Panteion University in Greece, says the government’s refusal to allocate a small number of MIQ rooms for seafarers trying to return home raises concerns under international human rights law as it severely restricts their rights to enter their own country.

Hundreds of New Zealand seafarers – a key part of the heavily disrupted global supply chain – are being left high and dry in countries all over the world, many for more than six months at a time, causing them and their families considerable stress.

They come from diverse marine backgrounds: some work on passenger and cargo ships, others on offshore oil and gas support vessels, dive support craft, oil rigs, seismic survey vessels, subsea cable lay-and-repair ships, fishing vessels, hospital ships and superyachts.

Most do not work overseas by choice as in most cases there are no equivalent jobs in this country.

Marine engineer Alan Pearman, who works on construction vessels in the Australian and south - east Asian oil and gas fields, is one such example.

For nearly 40 years the Bay of Plenty resident has enjoyed unrestricted repatriation back to New Zealand upon completion of his duties.
“The system worked well until last year when I found myself locked out of my home country and not even recognised as an essential worker,” he says.
“As a result of the New Zealand government ignoring its UN obligations, I have had less than four weeks at home in the past 16 months.”

Pearman, who has been stranded in Australia for almost six months, says the seemingly never-ending absences from home have caused him and his family considerable mental anguish and fatigue. During one such stranding, his wife was seriously injured in a car crash but he was not given an exemption to return to New Zealand on compassionate grounds.

“Shipping companies are very accommodating when a person needs repatriation on compassionate grounds but they struggle to understand the stance of the New Zealand government towards their seafarers,” Pearman says. “I am saddened by the apparent lack of empathy in some of the decisions made by faceless bureaucrats. The MIQ lobby draw is ineffective and demeaning. Let’s hope it will soon be a thing of the past. I prefer the Australian method where the MIQ allocations are given to the airlines. You purchase an airline ticket and you also get a guaranteed MIQ booking. So simple.”

Master Mariner Kevin Judkins is another New Zealander who has spent months marooned overseas.
He told LawNews that despite designating seafarers as essential workers in accordance with International Maritime Organisation (IMO) resolutions, the New Zealand government has steadfastly refused to grant MIQ priority access to returning seafarers.

“The injustice of the current situation is that a foreign seafarer is able to enter New Zealand to join or disembark a vessel using the ‘maritime allocation’ corridor reserved for seafarers with MIQ but a New Zealand seafarer is denied similar access when signing off their vessel in a foreign port.

“Earlier this year MIQ created bunk space for 500 Russian and Ukrainian fishermen to enter the country en masse, thus proving that logistics are not an issue and in turn indicating that there are no practical reasons to not feed bunk space to returning New Zealand seafarers.”
Judkins says it is incomprehensible that the New Zealand government chooses to remain ‘a pariah maritime state’ when it could easily extricate itself from the predicament it has created for itself.

“Simply granting incoming New Zealand seafarers 20 bunk spaces per fortnight within the 60-bunk-space maritime allocation would restore New Zealand’s image in the international maritime fraternity. “It is morally indefensible that the New Zealand government claims to abide by the Maritime Labour Convention when catering to foreign seafarers while dogmatically denying the same legal right of repatriation to New Zealand seafarers when a simple solution is so easily within reach.”

None of which is lost on Sofia Galani who believes the treatment being meted out to New Zealand seafarers is seriously flawed and leaves them without any legal protection.
“By requiring New Zealand seafarers to enter a lottery for a place in the MIQ queue like other travellers who wish to enter the country, New Zealand has essentially failed to properly implement IMO Resolution MSC.473(ES.2).

“Furthermore, the vagaries of the shipping industry further disadvantage New Zealand seafarers compared to shore-based New Zealand nationals who wish to enter the country. For example, poor quality internet on board vessels causes the MIQ site to time out; seafarers often do not know which port or which date they are due to pay off; crew managers do not issue flight tickets until the day before a seafarer is due off the vessel or rig, meaning that it is impossible to confirm a booked MIQ spot within the required 48-hour window.

“This has meant for hundreds of them that they are either stranded abroad unable to return home or are stuck home unable to take up employment opportunities out of fear that they will not be able to be repatriated once their employment contract ends.”

Galani also questions whether New Zealand’s Covid-19 Public Health Response (Maritime Border) Order (No2) 2020 is compatible with international law. “The New Zealand government has defended Order 2020 as legal and compatible with international labour standards. Their argument is based on the non-mandatory nature of Guideline B2.5.2 of the Maritime Labour Convention, 2006 (MLC, 2006) which concerns the repatriation of seafarers.
“According to this provision, states are encouraged to take every possible step to assist seafarers stranded in a foreign port and only flag states are obliged to ensure the repatriation of seafarers on board vessels flying their flags (Standard A2.5).”

Galani says acting on written advice from Maritime New Zealand, Covid-19 Response Minister Chris Hipkins signed a briefing paper agreeing that New Zealand’s actions may be inconsistent with the spirit of the MLC, rather than in breach of New Zealand’s convention obligations. “This has given confidence to the New Zealand government that there is no legal requirement for New Zealand to facilitate crew changes on non-New Zealand flagged vessels outside of its territory and that Order 2020 cannot be legally challenged, leaving New Zealand seafarers effectively without any legal protection. “This argument, however, is both legally and morally indefensible.”

Galani says the government’s designation of seafarers as ‘key workers’ is also meaningless and undermines the aim of the IMO resolution.

“This practice also raises concerns under international human rights law as it severely restricts the right of New Zealand seafarers to enter their own country. “The freedom of movement is widely recognised in international human rights law (Article 13 UDHR; Article 12 ICCPR; Article 3 of Protocol No. 4 of the ECHR; Article 22 (5) ACHR; Article 12 ACHPR) and is also safeguarded under Section 18 of the New Zealand Bill of Rights Act 1990.

“Among others, the right to freedom of movement gives an individual the right to enter his/her country. The right is not absolute and can be restricted on various grounds, including for the protection of public health (Article 12 (3) ICCPR).

“This restriction, however, cannot be arbitrary and often requires meeting a proportionality and necessity test (Article 12 (4) ICCPR, CCPR General Comment No. 27). “Restrictions which make it practically impossible for a national to enter his/her own country, as happens with Order 2020 and the MIQ requirements, should be considered disproportionate.”

Galani says the New Zealand government is fully aware of the impact of Order 2020 on New Zealand seafarers and has been repeatedly urged to amend it in order to enshrine the rights of New Zealand seafarers who work on foreign flag vessels.

“Unfortunately, it has not been positive towards any immediate changes and continues to knowingly discriminate against and disadvantage its own nationals.

“Once again, the New Zealand government is urged to reconsider its approach and review its legislation and practices in order to rectify this unintended but very problematic legal error which has left hundreds of New Zealand seafarers stranded at sea.”

Not surprisingly many New Zealand seafarers have been left with little choice but to throw in the towel, Kevin Judkins being one of them.

“I have been unemployed since being released from my last MIQ in January this year,” he says. “At 61years old, in spite of being one of the most experienced seafarers currently licensed by Maritime New Zealand, I have reluctantly accepted the probability that covid-19 has likely forced me into an early and unexpected retirement.

“Like most in my situation, I am eating into my savings, being ineligible to apply for any covid-related benefits as I was not employed by a New Zealand company.”

Others like Alan Pearman are still determined to keep going back to sea.

“You may well ask why I bother to go back to work,” he says. “Well, I believe all seafarers are part of the global supply chain and being an island nation Kiwis must realise that the vast majority of all the goods and products we import must come by sea. So I don’t get bitter and play the name-and-blame game. It is my belief that there are people in New Zealand making decisions way beyond their capabilities."

“Perhaps in hindsight the best way for Alan Pearman to secure an MIQ booking would have been to assume the character of the Grey Wiggle.”

With sincere thanks to Author Rod Vaughan, and Law News, the journal of the Auckland District Law Society, for permission to reprint this article to share with the worldwide yachting community. 

To read the Full Law News Issue where this article is found, follow this link: Law News Issue 44 December 2021