THE SAFETY AND HEALTH OF KENYAN FISHERS ON BOARD INDUSTRIAL FISHING VESSELS

(With Specific reference to Illegal, Unregulated and Unreported - IUU - Fishing)

RECOMMENDATIONS AND BACKGROUND MATERIALS FOR THE OBSERVATORY OF SEAFARERS’ RIGHTS, UNIVERSITY OF NANTES, FRANCE 2-DAY MEETING ON SAFETY AND HEALTH IN THE FISHING INDUSTRY

MARCH 17TH – 18TH 2005

 

Prepared by:

Andrew M. Mwangura

Programs Coordinator

Seafarers Assistance Program

P. O. Box 92273

Mombasa, 80102, Kenya

 

March, 2005

 

TABLE OF CONTENTS

Table of Contents                     ………………………………………..          2

Acknowledgement                    ………………………………………..          3

Background Information           ………………………………………..            4

Suffering in Silence                    ………………………………………..          6

IUU Fishing                              ………………………………………..          7

Piracy Attack                           ………………………………………..          8

Casualties and International Instruments         …………………………        9

Recommendations                    ………………………………………..          10

Appendix                                 ………………………….……………..         12

FISHING INDUSTRY

ACKNOWLEDGEMENT:

The preparation of this document was constituted by Prof. Patrick Chaumette, the Director, Faculty of Law and Political Science Nantes University, France and Mr. James Smith of the Seafarers’ Rights Observatory, Nantes University, France.

Truly, I am greatly indebted to them for having offered me an opportunity to serve the Seafarers’ Rights Observatory, France.

In more than one way the completion of this dossier was due to support and contribution, material or otherwise, from many groups, individuals and organizations.

I am indeed grateful to them all, but I just want to mention a few in this space.

I beg to extend my deep appreciation to the office of the Kenya Merchant Shipping Superintendent, the Kenya National Library Service, the Kenya Marine and Fisheries Research Institute, and Ecoterra International.

I lack words to express my sincere gratitude to Madam Nancy Karigithu, a Mombasa based maritime lawyer, for her immense contribution to the completion of this document.

The completion of this dossier was to a large extent made possible by the fishers who at different times availed themselves to give information.

It’s my hope that this dossier will be a step towards developing innovative approaches and enhance co-operation between EC, ILO, IMO, and OECD nations and African countries in the collective effort to protect fishers and to develop the fishing industry in African countries.

Andrew M Mwangura.

 

BACKGROUND:

Kenyan recorded association with maritime trade dates back to the 9th century when the Arabs from Oman established Manda Island 250km north of Mombasa as their base and port.

In the latter part of 15th century, the Portuguese dislodged the Arab rulers and in 1505 the Portuguese made Mombasa their headquarters, being the hub of administration.

The British occupied Kenya in 1886 and soon thereafter construction of Mombasa Harbour started in earnest.

It should be noted that the activities of the colonisers were mainly happening at the Coast, because the mode of transport in those days was only by ships.

The situation has not changed much with the introduction of air transport as 90% of world trade is still being transported by sea.

Kenya has a coastline measuring some 640-km and a long tradition in seafaring.

Despite its geographical position, the country has not achieved its potential in international shipping, mainly due to the lack of a coherent maritime policy and failure to set up appropriate legal institutional and administrative frameworks for the exploitation of the maritime zones.

Because of this neglect, Kenya has not kept pace with technological developments at the international maritime arena.

Thus major international conventions which have a bearing on trade, safety at sea, marine pollution, training and certification of seafarers, fishers and salvage at sea, preservation of the marine environment and maritime security have not been implemented in the country, leading to stagnation in the development of the maritime industry.

In Kenya, maritime administration is the responsibility of the Kenya Ports Authority, which appoints the Merchant Shipping Superintendent to administer the Merchant Shipping Act.

The Kenya Merchant Shipping Act of 1967 is a derivative of the UK Merchant Shipping Act of 1894, which has since been amended severally while our act has remained the same.

The Act is over 30 years old, outdated, and does not cover the important international shipping and maritime legislation conventions to which Kenya is a party.

The Merchant Shipping Act has also not incorporated several important guidelines, codes and procedures on port state control, safe management of ships, the handling of dangerous and hazardous cargoes and the global maritime distress safety system (GMDSS).

Kenya is a signatory to the Indian Ocean memorandum of understanding (MOU) on port state control.

Under the MOU, the merchant shipping superintendent is obliged to inspect 15% of all the ships that call on Kenyan ports in order to enhance safety of shipping.

The Merchant Shipping Act fails to give the legal basis upon which such inspections can be undertaken and therefore Kenya cannot meet her obligations under the MOU.

The inadequacy of the Kenyan Merchant Shipping Act is further demonstrated by the inability of Kenya to meet the minimum requirements for the acceptance into the IMO “white list” of nations that have complied with the STCW 95 convention.

This has forced Kenyan seafarers out of employment on foreign ocean-going vessels.

This might also have serious repercussions as Kenyan registered ships may be refused entry to other ports.

In order to overcome these obstacles there is a need for the government of Kenya to:

a.       Formulate and develop a national maritime policy, which should provide guidelines on administration and regulation of the maritime industry, maritime trade, maritime services, seafarers and fishers’ welfare, port infrastructure, maritime security, admiralty jurisdiction, maritime education, training and research, marine pollution and the appropriate legislative framework.

b.      Address the legislative and institutional framework for maritime administration in Kenya, given that the office of the merchant shipping superintendent operates under the Kenya Ports Authority. This raises a conflict of duty and interest, as the Kenya Ports Authority is both a provider of services and a regulator.

c.       Completely overhaul the Employment Act, Fisheries Act and the Merchant Shipping Act so as to incorporate various maritime conventions and agreements to which Kenya is a signatory. It hurts to state here that the Fisheries Act does not provide labour protection for fishers. It is also disheartening to note that the Labour Laws of Kenya are silent about Fishers’ and Seafarers’ Welfare. There is an urgent need of action into these matters sooner rather than later because they offer practical and direct aid to encourage the recruitment and retention of Kenyan Seafarers aboard coastal and foreign ocean-going vessels as well as fishing vessels.

I strongly believe that they will improve social conditions of Fishers and Seafarers by preventing unacceptable exploitation through proper agreement on shipboard conditions.

 

SUFFERING IN SILENCE: KENYAN FISHERS:

It is disheartening to note here that for a very long time the tears of the oppressed Kenyan seafarers and fishers have been a torrent.

They are shed by victims of countless acts of oppression and piracy attacks at sea. Those who have been victimized often feel that they have no comforter, and that no one really cares about them.

Despite this torrent of tears, some are unmoved by the suffering of the seafarers/fishers. They turn a blind eye to the pain of seafarers.

It hurts very much to say that for a very long time, Kenyan seafarers have been mis-represented and inadequately represented. They’ve also been short-changed by local maritime lawyers. They have simply been ignored, underrated or rejected by their oppressors and by their own union leaders and local ITF inspector, who are supposed to help them. They have so far not been able to find the wherewithal to efficiently oblige the government of Kenya and the employers to make amends for their unjust treatment of Kenyan seafarers and fishers.

It is a sad reality that 80% of Kenyan seafarers are unemployed and those employed are, in effect, dispossessed people deprived of basic rights and lacking any recourse to normal grievance procedures.

A study in Labour market opportunities and constraints conducted in 2002 by the Seafarers Assistance Program (SAP)[1] showed that 165 Kenyan fishers work aboard local Italian and Korean owned fishing trawlers, while 295 work on EC vessels, mostly Spanish trawlers and long liners. And about 65 work on Korean long-liners. Kenya’s fishing fleet is comprised of 17 Italian and 3 Korean owned fishing trawlers.

All local Italian, Korean and EC owned vessels employing Kenyans do not comply with ILO Conventions and International Labour Standards, nor does the EU fisheries agreement.

Apart from being underpaid, Kenyan Fishers working aboard local Italian, Korean and EC vessels usually have no regular hours of work and once the vessels start to fish, rest periods are infrequent, until the skippers are satisfied that enough fish has been caught and stored.

It hurts to say that there are no proper agreements, safety and health measures, medical care at sea, nor social security aboard the local and foreign fishing vessels.

Besides being under-manned, the local Italian and Korean fishing vessels are sub-standard.

Kenya is currently experiencing serious fish and fish products shortages of over 200,000 metric tonnes according to the Ministry of Livestock and Fisheries – Kenya[2].

The protein requirement of fish is 9.5 kg per year for an individual and we have a population of 30 million people.

This translates to a requirement of 300,000 metric tonnes per year which shows that there is a serious shortage crisis with the current production. This is due to IUU fishing in this region by the EU, Korean and local fishing vessels,  and to the lack of fishing policy in the country.

Kenya earns Kshs. 4 billion (U.S $50 million) from fish exports annually. While fishmongers earn Kshs. 6 billion (U.S $75 million) yearly in an industry that contributes 4% to the country gross domestic product (GDP).

Currently the country is only able to produce 70,000 metric tonnes of fish with 90% coming from Lake Victoria, which has over 40,000 fishermen.

 

IUU- FISHING:

Kenyan fishers have been involved in many documented sea piracies along the Somali territorial waters involving 5 Kenyan, 2 Korean, 3 Italian and 2 Russian-registered fishing vessels.[3]

Unfortunately, not all the confrontations between Somali militias and crews have been resolved peacefully.

Quite a number of them have ended in violence, claiming lives, serious physical and psychological injuries to several people on both sides. Property worth millions of dollars has also been lost.

The rich fishing grounds off the 3,300km- long Somali coastline are estimated to yield an annual sustainable marine production of between 300,000 and 500,000 metric tonnes.

Prior to the breakout of civil war in Somalia following the ouster of dictator Mohammed Said Barre in 1991, available fisheries statistics showed that the official annual marine output stood at 20,000 metric tonnes, a mere 4% of the potential production.[4]

The country’s artisanal fishermen and licensed foreign fishing vessels landed half of this catch.

If fully exploited, the fisheries’ output could contribute substantially to the country’s gross national product.

Illegal fishing activities in the Indian Ocean region have been aided by Kenyan, Korean, Italian and rich deep-water fishing nations.

The lack of central government has offered a kind of free for all for big time fishing concerns, with vessels from all corners of the world using a range of internationally banned methods and equipment.

The trawlers are no ordinary ships; they are intimidatingly big, menacingly powerful and capable of not only towing smaller trawlers but also spacious enough to accommodate a medium sized aeroplane. They also process tonnes and tonnes of marine products on board in a single six-hour shift.

Some Somalis have therefore taken upon themselves to protect their territorial waters and have taken to hostage taking as a business.

Figures compiled by Somali researcher Mr. Abdirahman Jama Kulmiye indicate that foreign owned fishing vessels fish off the Somali Coast.

There are 300 ships that conduct IUU fishing off the break away Republic of Puntland Coast and 700 in other fishing grounds along the Somali Coastline.

They target high-grade marine products such as shrimps, lobsters and demersal fish that fetch high prices in the EU and other international seafood markets.

Another trick is to conceal the true identity of the real owners by registering vessels using FOC and shell companies in Kenya, turning Kenyan seaports into bases from which shipping expeditions to the rich fishing grounds of Somali are organized.

And in addition to that, the trawler owners hire militiamen to guard ships while they are within Somali territorial waters.

 

PIRACY ATTACKS:

In spite of the militia aboard vessels, the Somali gunmen have managed to arrest a number of Kenyan fishing vessels with Kenyan fishers. SAP has documented several such incidents.[5]

In 1997, pirates pounced on a Kenyan registered Italian owned ship, the Bahari Hindi, and held it for 45 days at Kismayo, Somalia. They demanded a US $ 500,000 ransom in order to release a crew of 36 comprised of Italians, Poles, Kenyans, Romanians, Tanzanians and Senegalese.

In December 2001, the Bahari Kenya, also a Kenyan registered Italian owned vessel, was held at Elly Port, Somalia for 99 days, with a crew of 33 on board that included Italians, Kenyans, Romanians, Somalis and Spaniards. This time the ransom demand was US$ 1 million.

In the year 2003, 15 Kenyan, 9 Indonesian, 3 Koreans fishers were held as hostages aboard the Korean flagged Beira 3 and were released after six months.

Those who have come face to face with sea robbery tell chilling tales; but, driven by the need to earn a living, they have developed a sense of daredevil.

Some were caught twice or thrice but are not about to be scared into joblessness.

Their captors are always armed with AK 47 assault rifles, bazookas and rocket- propelled grenade launchers.

The first thing the hijackers do is draw the entire fuel from the vessel.

They also take with them all the fresh food and feed the hijacked crew with stale food from Somalia.

As the ransom negotiations drag on, the captives are normally beaten and told that if the ransom is not paid they will be killed.

Truly, the experience of the hostages is more heart-rending.

They say that their captors took control of the vessels before dismantling their radio communications. And they are put under constant surveillance as any foreigner is treated as a treasured item. For hostage taking is a lucrative business in Somalia.

These are but a few of Kenyan sailors’ harrowing experiences at the hands of modern-day buccaneers.

As fishing activities in Somalia are contrary to UNCLOS, I ask the EU to boycott all fish products from Kenya in order to force the Kenya government to crack down on local fishing companies operating illegally in Somali waters.

 

WORKING AND LIVING CONDITIONS ABOARD FISHING VESSELS

In both developing and industrialized countries, fishing continues to be one of the most perilous of occupations.

Fishing has always been dangerous. Fatality ranges from 150 to 180 per 100,000 workers according to the ILO estimates[6]. It is believed that safety conditions on fishing vessels are even worse than statistics reveal because the accidents are being under-reported. ILO also estimates that more than 24,000 fishers and people engaged in fish farming and processing are killed every year. Owing to the culture of fear, inhuman conditions on fishing vessels, such as physical and mental abuse and even murder, are also under-reported because fishers on fishing vessels are afraid. SAP’s welfare monitoring survey done over the last 10 years shows that there are no regular hours of work, working clothes nor rest periods, and most Kenyan fishers are underpaid. They earn an average of USD$ 100 per month, which is far below the USD$ 800 earned by their crew-mates from other countries.

The fishers maintain a culture of fear because they know that if they complain, they will lose not only their present but possibly their future jobs.

Between 1983 and 2003 a Senegalese, 16 Tanzanians and 47 Kenyan fishers lost their lives at sea, while 121 were seriously injured and 37 suffered frost-bitten fingers (see appendix).[7]

There are few international instruments regulating safety and welfare standards on fishing vessels, and there are many shortcomings in those that exist.

For example, international instruments regulating conditions on fishing vessels have had little ratification to date.

Flag state implementation is subject to broad interpretation of standards and enforcement.

With a few exceptions, the instruments apply to flag-state, not port state responsibilities.

There is no effective system of port state control in place for fishing vessels.

Many of the conventions cover only those vessels over 24 meters in length, yet most accidents and deaths occur on vessels smaller than that.

There are wide gaps in domestic and international law to adequately address cases of physical and mental abuse on fishing vessels, particularly Korean fishing vessels.

In addition to deficiencies in existing international instruments, the international community is failing to address other issues.

For example, many flag states are lax in their responsibilities to exercise effective jurisdiction and control over administrative, technical and social matters on ships that fly their flags as required by UNCLOS.

Port states violate UNCLOS by failing to release crews on ships detained for fishing violations.

Some states fail to enforce standards while others like Kenya have no standard to enforce.

 

RECOMMENDATIONS:

There is an urgent and serious need for effective mechanisms to deter violence, abuses and discrimination on fishing vessels.

There is also a need for Flag states to be encouraged to ratify and implement international instruments relating to fishing vessel safety.

International instruments that set existing standards on fishing vessels should include port state control provisions.

Coastal states should require compliance with International instruments for receiving fishing permits.

Insurers should also require compliance with these instruments as a precondition for P and I and hull insurance cover.

And above all, the fishing industry itself should be encouraged to change its attitude towards fishing vessel safety regulation.

The fishing industry must find ways to work with governments and International Organizations to produce and enforce reasonable and practical measures to protect the industry’s most valuable asset: the seafarers on fishing vessels. There is a need of ratification and implementation of UNCLOS, not only to protect the seas from pollution but also to manage the ocean’s fishing stocks effectively and responsibly.

There is also a need of implementation of the Food and Agriculture Organization’s plans of action, the 1995 Code of Conduct for responsible fisheries and other UN and International undertakings relating to fish stocks conservation and management. As I stated earlier there is a need for the EU to boycott fish and fish products from Kenya so that:

1.      The Kenyan Government may crack down on local fishing companies fishing illegally in the Western Indian Ocean Region.

2.      The Kenyan Government may come up with a fishing policy.

3.      Kenya may comply with the ILO and IMO instruments on Seafarers/Fishers’ Welfare as well as the SOLAS and STCW conventions.

There is an urgent need for the EU to boycott all fish products from Kenya because there is a link between IUU fishing, arms smuggling and drug trafficking and production in the Western Indian Ocean Region.

There is a need to build up the monitoring capacity in the Western Indian Ocean Region. I urge the Observatory of Seafarers Rights to strengthen data gathering, documentation and dissemination to avoid the current problems of under-reporting.

Suffice to say that there is also a need for the ITF to appoint a competent ITF Inspector at the port of Mombasa so that we can fight against the FOC and Sub-Standard Shipping in the Western Indian Ocean Region.

Friends, because the type of calling I pursue is muck-raking and down-to-earth, I have had uneasy relationships with some government officials, local ship owners, politicians, drug barons, trade unionists, port chaplains and even ITF Inspectors.

I have also received threatening calls from security agents and local maritime lawyers for exposing their under-table deals in short-changing the seafarer at the law courts. My works have brought me a lot of problems from these people, some of whom I believe are party to criminal activities in the maritime industry.


APPENDIX

SUMMARY OF FISHING VESSELS CASES:

The following table summarizers some of the cases involving fishing vessels reported to me since the year 1989.

N.B.: Please request the table with nearly 40 case listings and details by sending an e-mail to ecop-marine@ecoterra.net.

It will then also contain the latest cases.

I believe that these cases represent only a fraction of the incidents that actually occur on fishing vessels as only a few cases actually get reported.

The reasons why so few cases are reported include:

1.      The isolation of the fishing industry from the main maritime industry.

2.      The International Laws that cover the activities of merchant vessels do not regulate activities on fishing vessels.

3.      Most fishing vessels crews do not hold merchant mariner’s documents of identity and records.

4.      Fishers are often recruited outside the main gates of fishing companies.

5.      The fishers are uninformed of their rights as mariners and the resources available to assist them; and

6.      Most fishers are afraid to complain about their working conditions because of being blacklisted as trouble-makers.

I have gathered information about a few cases involving a wide range of issues including illegal fishing activities, piracy attacks, abandonment of crew, unpaid wages, mistreatment, death, and foundering of vessels.

These cases highlight the dangers that exist for fishers and the deficiencies that exist in international law as well as the Kenya Fisheries Act to provide effective remedies to recurring problems.


Ressources

[1] SAP study on labor market- 2002

[2] Annual Report 2004 Ministry of Livestock and Fisheries, Kenya

[3] Piracy reporting centre of the International Maritime Bureau 1991, 1994, 1995, 1997, 1998, 1999, 2001and 2003.

[4]Abdirahman Jama Kulmiye, Militia vs Trawlers: Who is the Villain? 2001.

[5] Indian Ocean Piracy Report by SAP 2001

[6] ILO Report on Condition of Work in the Fishing Sector which was presented to the ILO Conference in Geneva, June 2004.

[7] SAP Report on Shipping Casualties Indian Ocean- 1986-2004