Following ICS Guidance on legal, liability and insurance issues in connection with COVID-19 vaccinations of seafarers, Standard Club released the above FAQs.
- Can members oblige seafarers to get a Covid-19 vaccine?
As the MLC does not cover vaccinations, the answer depends on the national law of either the Flag State or the law of the seafarer’s country. Under English law, shipowners cannot oblige their crew, whether employees or agency crew, to be vaccinated and doing so would be a breach of their human rights on medical intervention.
Other countries may take a different approach and either allow shipowners to compel crew to have a vaccine, or themselves make it a legal requirement for crew to be vaccinated.
In certain circumstances it is possible for the seafarer’s contract of employment to include a condition that they are vaccinated.
- Can members make it a condition of the contract of employment that seafarers have a Covid-19 vaccine?
Yes, in certain circumstances members can make having a vaccine, providing proof of having a vaccine and even having a particular type of vaccine conditions of the contract, but always subject to the law applicable to the contract.
It is unlikely that members will be able to amend or vary an existing employment contract to include a new requirement or mandate that the seafarer is to be vaccinated, unless the seafarer provides their free and informed consent to the amendment.
In relation to new contracts of employment, it may be possible to make it a condition of the employment contract that the seafarer obtains any necessary vaccine(s), for example, vaccines that are required for the countries the ship might visit. In such a scenario, whether members may include such a condition will therefore depend on where the ship will, or may realistically, be going and whether such a vaccine is required or necessary to visit those countries.
Given the characteristics and danger of Covid-19 and the existing global pandemic, it is possible that vaccination will be required by an increasing number of states as it will protect both the seafarer and anyone they come into contact with.
- Can members arrange the vaccinations themselves?
The main risk in administering vaccines is an adverse reaction, which can be severe but may take a short while to manifest itself. The reaction may range from anaphylaxis, which is rare, to more common side effects including pain in the arm in which the injection was received, headache, general aches, tiredness or mild flu like symptoms.
If the vaccinations are to take place on board members will need to ensure that the vaccinations will be administered by suitably qualified people, that the vaccine has been approved by a relevant international or relevant national regulatory authority, the home state of the seafarer or the Flag State, can be stored and properly cared for and administered on board, and that there is rapid access to adequate medical assistance to manage the above risks.
Members will also need to consider the risks of vaccinating a large proportion of the crew at once and the time that should be allowed to check for any side effects before a vaccinated seafarer is required to carry out operational tasks on board. Members should be aware that a large proportion of the crew experiencing side effects that impair their ability to work, or even in one seafarer performing a crucial vessel safety role (eg helming the vessel) may, in extreme cases, endanger the safety of the vessel or render it unseaworthy.
Where members arrange vaccinations, they should ensure that their seafarers are provided with appropriate medical information about the benefits and risks of having the vaccine and that the seafarers provide their full, informed and voluntary consent to having the vaccine prior to it being administered. It is recommended that the consent is documented by a form signed by the seafarer which confirms that the seafarer has read and understood the medical information and the benefits and risks of having the vaccine(s) and voluntarily consents to having the vaccination(s).
- Which vaccine(s) should members choose if they are vaccinating seafarers?
At this stage, there is no universally approved vaccine and countries have approved different vaccines. A vaccine approved in one country may not be approved in another.
Where members arrange the vaccinations themselves they should ensure that any vaccine to be used has been approved by a relevant international or relevant national regulatory authority, the home state of the seafarer or the Flag State.
- Should the crew still follow Covid-19 precautions onboard after they are vaccinated?
The crew should be made aware that being vaccinated does not mean that they will be fully protected against Covid-19. Research is still ongoing into how much vaccines protect not only against disease but also against infection and transmission. The crew and any visitors to the ship must continue to follow appropriate Covid-19 precautions, demonstrate appropriate behaviour and maintain protocols such as wearing masks, cleaning hands, maintaining social distancing etc even if they are vaccinated.
- Are members responsible for the costs of vaccinating seafarers?
If members direct the seafarer to be vaccinated against Covid-19 or if it becomes an occupational requirement for work at sea, then members will be liable for ensuring that seafarers have been vaccinated and will be responsible for the costs of the vaccine and the cost of dealing with any side effects.
If instead a seafarer chooses to be vaccinated voluntarily or is vaccinated via his/her country’s vaccination programme, members will not be liable for the costs of the vaccination and any illness arising from it, unless the illness occurred under any period in which members ordinarily cover, such as illnesses arising whilst a seafarer is on board ship or travelling to or from the ship. In such instances members’ responsibility is likely to be governed by the contract of employment.
- Would the cost of a vaccine and liabilities arising from the vaccine fall under P&I cover?
The cost of the vaccine and any time spent to administer or facilitate the administration are operational expenses and do not fall under members’ P&I cover.
The club’s cover includes liabilities in respect of crew injury, illness and death. To the extent that such liabilities arose from a vaccine and also fell within the scope of club cover then cover would respond in the usual way, with the injury, illness or death treated as any other in accordance with club Rule 3.1.1. The liability would have to have arisen under the terms of the seafarer’s employment contract, previously approved by the club, or as a result of applicable law, and by reason of the member’s interest in the ship, out of events occurring during the period of the ship’s entry in the club and in connection with the operation of the ship.
Concluding, these FAQs refer to the International Chamber of Shipping’s publication Coronavirus (COVID19): Legal, Liability and Insurance Issues arising from Vaccination of Seafarers.
