NOTES OF CASES
| Date | 01 May 1982 |
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02483.x |
| Published date | 01 May 1982 |
NOTES
OF
CASES
SECONDARY
ACTION
AND
PRIMARY
VALUES
THE
crews of ships flying
“
ffags of convenience
”
are often savagely
exploited. Since 1958, the International Transport Workers Federa-
tion
(ITF)
has stepped up industrial action against such ships
through its 85 national affiliated unions in order to force the owners
to pay wages at levels compatible with collective agreements made
by
“
bona flde organisations
of
shipowners and seafarers.”
l
Britain
has long been one of the countries in which such industrial action
has been lawful. The Employment Act
1980
has now been inter-
preted by the Court
of
Appeal in
Marina Shipping
Lid.
v.
Laughton2
in a way that effectively destroys the ITF’s ability to
carry on its campaign lawfully
in
this country.
This ship was owned by a Maltese company controlled by Mr.
Akka. Its crew of
20
were all Turkish except for three officers. It
was on charter carrying
a
cargo from Panama to Hamburg via Hull.
When it reached Hull,
14
of the Turkish crew complained that their
pay and conditions were below the minimum standards. Local repre-
sentatives
of
ITF
made contact with them,s and demanded proper
wages for the crew with (as is usual) back pay at proper rates. A
message from Mr. Akka said that
“
he had not got the money with
which to meet such
a
demand, and
if
it was persisted in, he would
have to sell the vessel.” The
ITF
blacked the ship, and the defen-
dants
(ITF
officials) told local British unions that it should not be
serviced. In consequence, the lock-keepers in breach of their em-
ployment contracts with the port authority refused to operate the
lock-gates for the vessel.
At common law, therefore, the defendants were liable to the
plaintiffs by reason
of
their interference with the owners’ contract
with the charterers and, probably, for
‘‘
interference with their
1
See the International Labour Organisation, Recommendation
No.
107, 1958,
and the
ILO
Recommendation
No.
108
(on the safety of such ships).
2
[1982]
I.R.L.R.
20
(C.A.). This case is one of a series marking the legal coun-
ter attacks in Britain
by
the flag of convenience shipowners. See
on
‘‘duress”
Universe Tankships
of
Monrovia
Inc.
v.
ITF
[1980]
1.R.L.R.
363
(C.A.),
a
critical
case for the
ITF
and for labour law, which at the time of writing awaits argument
in
the House
of
Lords.
In addition to the,;esolute opposition by,,“ shipowners
in
the traditional maritime nations
’’
and by the public has
now become “conscious
of
the potential dangers”: “With the
Torrey Canyon
catastrophe of
1967,
the problem
p,f
ships flying flags of convenience,took on
a
third dimension
”
:
Folke
Schmidt,
(1972) 12
Arkiv
for
Sjcarett (Journal
of
Maritime Law)
77, 81.
3
Such contact
is
often made extremely difflcult by the owners and offlcers of flag
of convenience vessels.
4
[1982]
I.R.L.R.
22.
The amount was
S129.000.
6
[1982]
I.R.L.R.
22, 23.
The procurement of that interference appears to be
seen as
‘‘
indirect
”
by the Court of Appeal. See Clerk and Lindsell on
Torts
(15th
ed..
1982).
paras.
15-0615-10.
317
the maritime unions
Ships Flying Flags of Convenience
318
THE
MODERN LAW
REVIEW
[Vol.
45
business by the use of unlawful means.” Such industrial action was
protected even in
1906.
Indeed, contrary to popular belief, legalisa-
tion of solidarity or
“
sympathetic
”
action was a central issue at
that time.’
But
since the Employment Act 1980, the right to engage
in solidarity action has been largely destroyed by reducing the
scope of the appropriate statutory
“
immunity
”
in trade disputes.
Section
17
of the 1980 Act deprives
“
secondary action
”
of the
protection against various species of tort liability based upon
interference with contract.*
In the
Murim
case, although it was agreed that the action was
taken in furtherance of
a
trade dispute (as the law stands now), the
employer party to that dispute (the shipowner) was not the em-
ployer
of
the employees (the lock-men) taking the industrial action
instigated by the defendants. It was therefore
“
secondary
”
action
and open to the full gale of the common law’s fury.g
But the 1980 Act purports to offer
a
few gateways to legality for
secondary industrial action. The main one provides that
“
secondary
action” retains the trade dispute immunity in section
13
(1)
of
TULRA
if:
(a)
its principal purpose was directly to prevent or disrupt
the supply of goods or services during the dispute between
the employer who was
a
party to the dispute and the em-
ployer of those taking industrial action (the
“
secondary
employer
9;
and
(6)
(together with any corresponding secondary action by
employees of the same secondary employer) it was likely
to achieve that purpose.’O
Put like that, the defendants seemed to squeeze through the gate-
way. They had achieved their purpose; and their purpose seemed
‘‘
on the face of it
”
to be manifestly that which was required by the
6
Per
Lawton L.J., p. 22; but Brightman L.J. reserves his view on tort liability
for ‘‘unlawful means.” The common law position is inadequately presented. as is
customary in this kind of interlocutory proceeding. On
“
unlawful means,” see Clerk
and Lindsell on
Torts,
paras. 15-13 to 15-20; and now
Hadmor Productions Ltd.
v.
Hamilton,
[1982] I.R.L.R. 102 (H.L.).
See
infra
notes 9 and 20-27.
See the debates on the Trade Disputes Bill 1906, especially H.C.Deb., Vol. 162,
cob. 1690-1691 (August 3, 1906) (Mr. Markham M.P.; Sir Frederick Banbury M.P.).
8
In
s.
13 (1) of the Trade Union and Labour Relations Acts 1974-76 (TULRA).
On
the immunities,
see
Wedderburn (1980)
9
I.L.J.
65.
9
See the definition in
s.
17 (2)
of
the Employment Act 1980. It seems to vve
been assumed that the owners were the only employers who could be
“
parties to
the trade dispute. within
s.
29
(1)
TULRA:
sed quaere.
The designation
of
those
who are
‘‘
parties
”
to the dispute has become much more important after
1980,
and will be critical after the enactment
of
cl.
15,
Employment Bill 1982. For
the remarkable uncertainties of
s.
17, see R. Lewis and
B.
Simpson,
Striking
A
Balance7
(1981). pp. 202-209; Clerk and Lindsell.
Torrs
(15th ed., 1982). paras.
15-30. Lord Denning M.R. found it
‘‘
the most tortuous section
I
have ever come
across
”
:
Hadmor Productions Lid.
v.
Hamilton
[1981] I.C.R. 690, I10 (C.A.);
reversed on other grounds, [1982] I.R.L.R. 102 (H.L.).
See
the forthcoming analysis
of
the House of Lords decision by
B.
Simpson in (1982) 45 M.L.R.
10
EmploTment Act 1980,
s.
17 (3). The other gateways are a variation
of
that
one concerning “associated employers,” and one for lawful pickets:
s.
17
(4)
(5).
which have their
own
peculiarities, Clerk and Lindsell,
op.
cit.
para. 15-30.
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