Seaman

In the shipping business, it is crucial to a shipowner to hire well-trained and competent crew members or seamen. In order to operate a seaworthy ship, the relationship between shipowners and crew members has to be proper and harmonious. During ocean voyages, the lives of seamen were so arduous and hazardous, governments stepped in to provide protection to seamen for their living conditions and payments. During the end of the 20th century, seamen have been granted significant legal protections and rights. Seamen rights are so generous that injured shore workers try to qualify as seamen so that they might benefit from those protections. Due to technological advances in recent decades, ship crew members are becoming smaller and smaller.

Today, many large commercial ships are being manned by less than 20 crew members. Despite the crew members size have decreased, the workload for crew members has increased. Hence, governments have increased significantly safety, environmental, security, and other regulatory requirements applicable to ships. The burden of complying with these government regulations has fallen on ship crew members.

In recent years, the biggest concern to ship crew members has been the criminalization of what was formerly treated as negligence. At many ports of the world, many merchant mariners have been jailed or detained for long periods of time for environmental pollution incidents like mere negligence or typical criminal conduct was involved or where crew members were merely witnesses to the events. In recent years, due to piracy and terrorism, crew members have faced increased threats to their physical security. Crew members or seamen enjoy a special status under United States law that is substantially different from that accorded other United States employees. For example, the right of crew members to sue the shipowner or bareboat charterer for the unseaworthiness of the ship or for the negligence of other crew members. Crew members or semen are also entitled to compensation for medical expenses and living expenses incurred as a result of injuries suffered onboard regardless of crew members or seamen own fault or the lack of fault of the ship owners.

Historically, ship owners withhold wages of crew members at the conclusion of a voyage in a foreign place and leaving crew members destitute in a foreign country. Crew members could often be subject to mistreatment by unscrupulous ship owners. In 1840, Richard Henry Dana graduated from Harvard Law School and published a book, Two Years Before the Mast. In his book, Richard Henry Dana depicted his experiences while sailing as a merchant seaman. Two Years Before the Mast documented the plight of merchant crew members and drew attention to seamen frequent mistreatment. Afterward, Richard Henry Dana became a leading maritime lawyer advocating for the rights of seamen. United States Congress and courts have stepped in to protect crew members from such practices by ship owners and operators. In 1932, United States Supreme Court declared: “Seamen have always been regarded as wards of the admiralty, and their rights, wrongs, and injuries a special subject of the admiralty jurisdiction”. A number of protections have been enacted by the United States Congress for seamen over the years.

In 1915, in order to protect crew members, landmark maritime legislation was enacted by the United States Congress, Act to Promote the Welfare of American Seamen in the Merchant Marine of the United States, known as the Seamen’s Act. 1915 Seamen’s Act abolished imprisonment for desertion, regulated rations and wages, and set certain minimum safety requirements. Nevertheless, the 1915 Seamen’s Act did not provide seamen a cause of action for injuries. Injury protection was later provided in Section 33 of the Merchant Marine Act 1920, known as the Jones Act. Section 27 of the Merchant Marine Act 1920 is a cabotage law and is also commonly referred to as the Jones Act. In the United States, Federal Law defines a seaman as a person who is employed in any capacity on board of a ship. From this definition scientific personnel on search vessels, sailing school instructors, or sailing school students are excluded. Shipping Articles are a required employment contract between the shipowner and the crew. Shipping Articles have been mandated by United States law for foreign voyages and certain United States voyages since 1790. Federal law sets out the requirements for articles and the process of paying the crew at the end of a voyage when crew members are released. In the United States, federal law generally requires that a shipowner or shipmaster pay to seamen all wages in full at the end of a foreign voyage and certain coastal voyages. In the United States, federal law also provides for penalty wages of two days’ wages for each day payment is delayed. Federal law regarding payment of seamen may also apply to foreign ships. The requirement for prompt payment of wages and the accrual of penalty wages applies to foreign ships if the crew member is disembarked in United States ports. Disembarkation of foreign seamen in United States ports would be an unusual circumstance, it would not be easy to disembark a seaman due both to United States immigration laws and to international and flag-state regulations that generally require seamen to be repatriated to their port of departure.

The shipowner can refuse to pay seamen’s wages:

  • if the shipowner has a reasonable belief that the wages are not due
  • if the shipowner has a bona fide dispute about the amount owed
  • if a good faith error as to the amount exists.

In the United States, federal seamen wage statutes do not apply to the crew members of fishing ships. Crew members of fishing ships work for shares of the profits from each voyage. Fishing ships are generally subject to state employment laws. Furthermore, in the United States, federal seamen wage statutes do not apply to United States flag ships engaged in the United States coastwise trade. But, federal seamen wage statutes do apply to United States flag ships engaged in United States inter-coastal voyages like ex California to Hawaii or ex-New York to Alaska. In the United States, federal seamen wage statutes do apply to United States citizen seamen disembarked in foreign ports even if the ship of employment is not a U.S.-flag ship. In the United States, seamen are not entitled to overtime by law. Crew members are exempted from federal law regarding working hours, set out in the Fair Labor Standards Act. Fair Labor Standards Act guarantees employees overtime for a workweek exceeding 40 hours. In the United States, the statute does not define the term seaman or define what constitutes being employed as a seaman, a number of cases and related Department of Labor regulations provide guidelines for determining whether is a person employed as a seaman for purposes of the Fair Labor Standards Act (FLSA). Department of Labor’s regulation state that a worker will be considered as a seaman if that worker performs, either as a master or subject to the direction and control of a master on board of a ship.

In the United States, seamen are protected by the government if they report ship safety violations. Federal Whistleblower Statute applies expressly to seamen who in good faith report, or are about to report, to the Coast Guard a violation of a safety statute or regulation. Federal Whistleblower Statute requires reinstatement with back pay and an award of reasonable attorney fees to the whistleblower. In the United States, seamen on board of a ship do not have the Right to Strike. Seamen on board of a ship cannot engage in a work stoppage. On the other hand, seamen ashore may be able to strike or engage in a work stoppage. According to the Jones Act regarding seaman rights that refer to Section 33 of the Merchant Marine Act 1920. Merchant Marine Act Section 33 gave seamen a cause of action against the shipowner for damages for injuries caused by the negligence of the shipowner and his servants, as well as for violations of safety statutes.

Jones Act is not a free-standing statute. However, the Jones Act extended to seamen the protections that had earlier been made available to railroad employees in the Federal Employees Liability Act (FELA). Because the Jones Act is based on the Federal Employees Liability Act (FELA), two statutes have to be read together and cases concerning one are generally applicable to the other. Under the general maritime law, seamen had a right to maintenance and cure for injuries incurred in the service of the ship and had the right to seek damages for injuries caused by the unseaworthiness of the ship. Nevertheless, seamen did not have a right to sue the shipowner or ship operator for harm caused by seamen’ negligence. In addition, seamen were barred by the common law fellow servant rule from suing the shipowner for injuries caused by the negligence of fellow crew members. Thus, while an injured seaman could receive medical care and living expenses for a period of time, the seaman did not have any remedy for the long-term harm suffered as a result of negligent acts by the shipowner or fellow crew members. Congress had earlier dealt with a similar issue affecting railroad workers, then the primary means of interstate transportation, in the Federal Employees Liability Act (FELA). Congress extended those same protections of railroad workers to seamen. In addition to giving seamen the right to a cause of action for negligence, the law also gives seamen the right to bring such cases in state courts. Maintenance is a seaman’s reasonable room and board expenses while ashore convalescing from his ship-related illness or injury until he is fit for duty again or until a maximum benefit is reached. The cure is the reasonable medical expenses incurred by the seaman as a result of a ship-related illness or injury. Jones Act accords rights to seamen who are crew members aboard a ship and whose duties contribute to the function of the ship or to the accomplishment of its mission. Seaman work must have a connection to ship in navigation. Jones Act is not a seaman’s exclusive remedy for injury or death. In addition to the Jones Act, a ship and its operator owe a duty of seaworthiness to seamen assigned to the ship. If a seaman’s death or injury is caused by the unseaworthiness of a ship, the seaman can recover loss of income, medical expenses, pain and suffering, and compensation for disability.

Furthermore, the Death on the High Seas Act (DOHSA) provides a cause of action for the death of any person caused by the wrongful act, neglect, or default occurring on the high seas beyond three nautical miles from the shore of the United States. Third-Party to bring a Death on the High Seas Act (DOHSA) suit is the personal representative of the decedent which may include the spouse, administrator, or executor of the estate. Damages under the Death on the High Seas Act (DOHSA) are limited to pecuniary losses. Plaintiff may not recover for loss of society and consortium or punitive damages. Under the Jones Act, a seaman is entitled to recover damages for pain and suffering, medical expenses, and loss of unearned wages and future wages. Supreme Court recently held that an injured seaman is also entitled to punitive damages for the ship owner’s failure to pay maintenance and cure.

All seamen are required to have basic safety training in:

  1. personal survival techniques
  2. fire prevention and firefighting
  3. elementary first aid
  4. personal safety and social responsibility

There are two types of mariners:

  1. Licensed mariners, commonly referred to as officers
  2. Unlicensed mariners, commonly known as ratings

In the United States, all mariners must meet certain American citizenship requirements, pass a physical examination, pass a drug screening, and have a satisfactory background check. In order to qualify for a mariner license, an applicant must pass a written examination and must have a certain level of seagoing experience, which is evaluated based on the size of the ship and previous voyages. Ship officers satisfy the requirements for their initial license through attendance at the maritime academy. In order to obtain Merchant Mariner Credential (MMC) as a rating, a man or woman must meet certain experience requirements and receive approved training. Besides, officer candidates must undergo a physical examination to ensure that the person is in suitable health. Afterward, officer candidates must pass a drug test. All mariners must hold a valid Transportation Worker Identification Card (TWIC). Training and educational requirements for most ocean and river transportation occupations are established and regulated by the United States Coast Guard which is an agency of the United States Department of Homeland Security. Maritime Labor Convention (2006) is an international convention providing for minimum international work standards for merchant mariners. Maritime Labor Convention is also referred to as seafarers’ bill of rights. Maritime Labor Convention was adopted by the International Labor Organization at the 94th Maritime Session of the International Labor Convention on February 7, 2006. The Maritime Labor Convention went into force on 20 August 2013, with registered ratifications of the first thirty countries. Maritime Labor Convention contains five titles:

  • Title 1: sets minimum requirements for mariners to work on a ship including minimum age, training requirements, and medical certificates
  • Title 2: establishes certain basic conditions of employment including employment agreements, wages, hours of work, and minimum rest periods
  • Title 3: sets standards relating to ship conditions including accommodations, recreational facilities, and food
  • Title 4: provides for health protection and social security for merchant mariners
  • Title 5: provides for the means of compliance and flag and port state responsibilities.

Maritime Labor Convention requires that commercially operated ships over 500 gross tons that are registered in a country that has ratified Maritime Labor Convention are required to carry a Maritime Labor Certificate (MLC) and a Declaration of Maritime Labor Compliance (DMLC). Furthermore, ships registered in countries that have not ratified the Maritime Labor Convention have to comply with the convention. When visiting countries that have ratified the Maritime Labor Convention, ships registered in countries that have not ratified the convention must still evidence general compliance with the requirements of the convention. Ships from non-ratification countries are to receive no more favorable treatment than ships of ratification countries in terms of mariner treatment, to ensure fair competition among ship owners.

In April 2015, 66 countries had ratified the Maritime Labor Convention including Cyprus, Liberia, Malta, Marshall Islands, and Panama. The United States has not ratified the Maritime Labor Convention and therefore does not enforce the Maritime Labor Convention on ships in United States waters under its port state control processes. However, to facilitate the ability of U.S. flagships to visit the Maritime Labor Convention ratification countries which are applying the standard, the U.S. Coast Guard issues U.S. flagships trading internationally statements of voluntary compliance with the Maritime Labor Convention.

 

Interim Certification for MLC (Maritime Labour Certificate) conditions:

Full-term MLC (Maritime Labour Certificate) is valid for 5 years from the date of completion of the initial inspection. The intermediate inspection will take place between the 2nd and 3rd-anniversary dates. The renewal inspection must take place before the expiry of the certificate at the end of the five-year period.

Interim Certification for MLC (Maritime Labour Certificate) conditions:

  1. New ships being delivered from the shipyard and brought into service can have an interim certificate for 6 months.
  2. If the owner of the ship changes then an interim certificate can be issued for 6 months.
  3. If the ship changes flag then an interim certificate can be issued for 6 months.