Fatigue is commonly described as a state of feeling weary, tired, or lethargic that results from prolonged physical or mental work, extended periods of anxiety, exposure to harsh environments, or loss of sleep. It is different to simple tiredness through missed sleep. With up to 400,000 crew stranded either at sea or at home by travel restrictions because of the Covid-19 pandemic, many crew have worked several months beyond their contracts, exceeding regulatory limits, and the industry has sounded the alarm amid concerns over the physical and mental well-being of seafarers. It has become a priority for the IMO and ILO to put in place protocols to allow for crew (armed with key worker status) to be rotated as usual.

Crew fatigue

© Igor Kardasov/Adobe Stock

These developments are of particular concern to an industry where risk of fatigue was already high before the outbreak of the pandemic – contributed to by long irregular hours, excessive workload, stress, sleep deprivation, lack of nutrition, noise, motion and short turnaround times.

Findings of several studies including that of “Project MARTHA”, a three year study into the causes and effects of crew fatigue, show that crew fatigue can lead to extremely serious consequences, including; accidents and injuries, ill health, ship casualties, disability, sick leave and reduced performance. The report notes further that fatigue can lead to an increased risk of conflict between crew members and a consequent reduction in a vessel’s overall performance.

Seaworthiness

Whilst reducing crew fatigue during the pandemic should be sufficient motivation for the industry to take action, failure to do so also exposes owners to potential legal challenges as to a vessel’s seaworthiness.

At common law, owners give an absolute warranty that their vessel is seaworthy to undertake the contractual voyage in question. However, in the vast majority of cases, this obligation is reduced by cargo carrying regimes (such as the Hague Visby Rules) to one of “due diligence”. Accordingly, seaworthiness is often considered on that basis, where the test has been fittingly rephrased in the recent case of Alize 1954 v Allianz Elementar Versicherungs AG (The CMA CGM Libra) [2019] EWCH.

Whenever an owner/operator puts a vessel to sea, they must remember the duty is on them to ensure they exercise due diligence with regards to the safety of the crew, vessel, cargo and environment. Due to the non-delegable nature of this duty, an owner should also ensure that seaworthiness is at the forefront of their servants’, agents’ and crews’ minds at the commencement of any voyage.”.

To determine if a vessel is seaworthy, her condition is subjected to what is habitually referred to as the “prudent owner’s test”. In the context of manning during the pandemic, the question is whether a reasonably prudent owner would have allowed his vessel to put to sea with a particular master and crew in light of all the relevant factors relating to the crew’s fatigue levels and the crew’s knowledge and training in respect of the vessel. If the answer is ‘no’, then the vessel will be considered unseaworthy, and the owner could be held responsible to cargo interests for any failures on the part of a crew rendered “incompetent” (in the legal sense) by fatigue.

Whilst crew negligence in itself will ordinarily be insufficient to render a vessel unseaworthy, crew incompetence – a crew member’s skill level failing to reach that which should reasonably be expected from an ordinary person in that rank – may be sufficient to do so. In The Eurasian Dream [2002] 1 Lloyd’s Rep. 719, Cresswell J found that in order to be considered competent, a crew must not only receive adequate training and instruction so as to have sufficient knowledge of a vessel and its systems, but also the necessary physical and mental ability and willingness to perform their job proficiently.

There have been a spate of incidents brought on by tiredness and the key evidence in those  cases (particularly since the implementation of the Maritime Labour Convention) are the records relating to hours of rest. More difficult perhaps, is proving a long-term debilitating fatigue coupled with mental stress which may be exacerbated by crew members not fully able to work because of medical conditions which remain untreated because no one can get ashore. If a loss is proved to have been caused by unseaworthiness, then owners must be able to show they have acted with due diligence at the beginning of each voyage. In the case of a crew that is simply run down and exhausted that represents a real challenge. Owners cannot simply divert the ship for some welcome down time. The work on board never stops.

Studies such as Project MARTHA and IMO’s 12-step protocol for safe crew changes provide  owners with an ever-greater understanding of the causes and effects of crew fatigue and give guidance on how to manage the risks it poses. Perhaps it is not inevitable that such cases will be brought against owners, but if they do, they have the potential to cost owners and their insurers.