The Challenge of Complying with Hours of Work and Rest

14 May 2021 By Kate Lardy
Alarm clock

Kate got her start in the yachting industry working as crew. She spent five years cruising the Bahamas, Caribbean, New England, and Central America, then segued that experience into a career in marine journalism, including stints as editor of Dockwalk and ShowBoats International.

Capt. Mike French and Attorney Michael Moore weigh in on why managing hours of work and rest on yachts can be so tough to handle.

The junior deckhand on 50-meter M/Y Incessant could not remember ever being this tired. He had known what he was getting into when he took the job on the notoriously busy charter yacht, but he hadn’t been in any position to be choosy. This was the break he had been waiting for after months of intermittent daywork. And he wasn’t some naïve greenie thinking he was going on holiday; he came into this prepared to work his butt off. That’s exactly what he had been doing. It was week after week of running after demanding guests by day, with barely time to put down a quick meal, and late nights cleaning up after the hard-partiers or fetching them from clubs in the wee hours.

But the paperwork told a whole different story, he thought, as he went to sign a timesheet that the first mate had filled in for him. It was a work of fiction, but what could he do? As usual, he signed it, attesting to an afternoon break and uninterrupted eight-hour expanse of sleep that was the stuff of his fantasies. He suspected if he dared say anything he’d be back on the dock pretty quickly, and there was definitely someone ready to take his place, so he did what any other junior crewmember would do — just suck it up….

“If I dared tell [owner/management] that [the schedule] wasn’t acceptable, I was told in no uncertain terms that if I wanted to keep my job I should put up with it…or was I too old?”

This is an all too common scenario, says Capt. Michael French. In his last command when he would ask new crewmembers to complete their hours of rest, he said about half of them would ask him what he wanted them to write. When he would respond that they should write the exact hours they did and rested, they were quite surprised. “That kind of indicates the prevalence of how many people don’t get to just simply record the hours they work,” he says.

French authored an article about fatigue that ran in Dockwalk’s June 2020 issue, for which he interviewed crew and learned they were terrified to say that they needed a break — they would be called weak or not tough enough. “My own experience would seem to endorse that,” he says. “If I dared tell [owner/management] that [the schedule] wasn’t acceptable, I was told in no uncertain terms that if I wanted to keep my job I should put up with it…or was I too old?”

Interestingly, the MLC, 2006 regulations that specify maximum hours of work and minimum hours of rest have done little to improve the situation. Falsifying these records is common practice in all areas of the maritime world. A 2020 study by the World Maritime University titled “A Culture of Adjustment” found that about two-thirds of the time, “Work hours are either under-reported or work/rest hour records are manipulated for compliance purposes.”

The study concluded that the root cause of violations and adjustments was insufficient safe manning levels. This definitely applies to yachts, which often fall short on the manpower needed to provide that exceptional guest experience 24/7. And the trend in manning is moving in the wrong direction, French says. He recalls that when he started out some years ago, they would have 12 to 14 crewmembers on a 50-meter vessel. “Now I would say it’s extremely rare to have enough crew — 50-meters is nine crew now.”

Flag states have caught on to the falsification of records on ships due to the discrepancy between rest hours recorded and overtime paid, but of course on yachts no one gets overtime, making it easier to get away with creative record-keeping. Capt. French kept accurate records but was amazed that in 10 audits over five years on his last yacht, he was never once called out for hours of rest violations.

In addition to flag state audits, port states also have the right to examine work/rest records. “STCW provides control authority to Port State Control (PSC) Officers, who may take actions, including vessel detention, to ensure the vessel does not pose a danger to persons, property, or the environment. This includes verification that the vessel has seafarers who are sufficiently rested and otherwise fit for duty,” says the USCG. “PSC examinations are intended to be of sufficient breadth and depth to validate that a vessel’s major systems comply with applicable international standards and domestic requirements and that the crew safely operates the vessel with sufficient proficiency. This includes minimum safe manning, certificates of competency/endorsements, as well as crew familiarization and rest hours.”

Having the yacht detained by the port state is one such worst-case scenario — a worse one is an accident caused by fatigue. As maritime lawyer Michael Moore says, “The owner has a non-delegable duty to provide a seaworthy vessel. An exhausted crew would make the vessel unseaworthy. Negligence attributed to exhaustion would be a separate and distinct cause of action. Violating the MLC provisions on working hours would make it easier to prove both causes of action.”

In the case of our junior deckhand’s situation, there is little he can do but move on to another vessel, says French. “It certainly won’t change by going to the captain and saying ‘You’re working us too hard,’ because I’m pretty sure that won’t yield the captain saying, ‘Oh yeah, you’re right, let’s take a break.’”

Very often the captain’s hands are tied. The ISS Captain’s Committee pointed this out in an article they wrote called “Fatigue in Captaincy:” “It is beyond the capacity of the captain, with their single source of income, to speak out. Captains will buckle in deference to their job security. It takes an industry-wide commitment.”

This column is taken from the January 2021 issue of Dockwalk.


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