The international trade union federation ITF, the Dutch seafarers' union and FNV Havens have submitted claims against two crewing agencies and a Dutch ship owner for having breached the agreement reached on lashing work as a result of a biyearly international collective bargaining process for the sector.

It was agreed in February 2018 that the crew of seagoing container vessels with a length of up to 170 meters would no longer perform the dangerous lashing work, and that such work would be assigned to dock workers. This agreement would also apply to ports in the North and West of Europe and in Canada. As per 1 January 2020 the agreement was laid down in an international framework agreement, in several collective bargaining agreements with national unions, and in Special Agreements for each ship concerned. And also in the employment agreements of each crew member

The respondents contested the claim. They were assisted in their defence by five other shipowning companies, who joined the proceedings because the debate also affected their legal positions. They argued that the new Dockers' Clause is null and void because it would violate EU competition law. That argument was rejected by the Court. The Court evaluated the facts of the matter and concluded that EU competition does not apply tho the new Dockers' Clause. The reason for this is that the agreement was the result of collective negotiations between the 'social dialogue partners' relevant to the shipping industry. It makes no difference that on the employees' side, both seafarers' unions and dockers' unions had a seat at the table. This is neither illogical nor unjustified in this industry, because dockers are often instrumental in bringing about better working conditions for seafarers. In addition, the new Dockers' Clause furthers the safety interests of seafarers. That it also benefits the dockers themselves does not change this. The clause is valid.   

A second issue was whether the crewing agencies were bound by the agreement reached. They have no direct say in what happens on board. They argued that they were not the parties bound by the agreements. The Court held differently.

The crewing agencies participated in the international collective bargaining process and entered into a number of contracts geared toward the implementation of the outcome thereof. Under such circumstances they may not go back on their given word, especially in view of the paramount importance of a constructive social dialogue between empoyers' organisations and employees' unions

A third defence was that the clause needed not be complied with as long as the ships' crews were in danger of being exposed to the risk of COVID-19 infection by dock workers coming on board.

The Court did accept this as a valid defence. When performance of an obligation is impossible or may not be reasonably demanded due to government restrictions or orders, there is no duty to perform. 

The Court orders the Dutch crewing agency to fulfil its obligations under the new Dockers' Clause - on the ships that it has manned of which the Court has been able to ascertain that the clause (still) applies - in EU ports in the North and West of Europe, and has ordered that a penalty will be forfeited in case of non-compliance. However, the Court has also ruled that this order is not valid whilst COVID-19 prevention measures in place purport to restrict third parties accessing the ship, dock workers not excluded.

The foreign crewing agency must comply with the clause within The Netherlands. The claim against this company was restricted to The Netherlands.

The Dutch ship owning company sold its ship during the pandemic and no longer operates a vessel. There is no longer any need for an order against this company.