This article is written by Aarushi Pandey, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho.
Table of Contents
Introduction
This article aims to aid in a general understanding of a standard and basic seafarers’ employment agreement that is not tailored to country-specific guidelines or law. Usually, different countries have their own set of rules and regulations consisting of particulars and specifics that deal with seafarers’ employment contracts. However, there are some standard practices common to all jurisdictions that have been addressed in this article along with relevant examples.
What is a contract?
Cornell Law Dictionary defines a contract as an agreement between private parties that creates legally enforceable mutual responsibilities. Mutual consent, a legitimate offer and acceptance; appropriate remuneration; capability and legality are fundamental components for this agreement to establish a legally enforceable contract.
What is an employment contract?
Black’s Law Dictionary defines an employment contract as a contract between an employer and an employee, It is usually voluntary, purposeful, and legally enforceable, making it legally binding. As a condition of employment, the employee must agree to this contract. Employment contracts contain a wide range of processes and/or rules that must be followed by the employer in order to safeguard their own interests. The contract sometimes includes a time limit that prevents the employee from working for a rival or in a comparable field after they leave the firm. This provision is frequently challenged in court.
General definition of seafarers
The term “seafarer” refers to “shipboard crew personnel including Ships’ Officers and seamen/ratings.” According to Black’s Law Dictionary, a “seaman” is a person who is connected to a navigation vessel as an employee below the rank of officer and contributes to the vessel’s operation or the achievement of its purpose under the Jones Act and the Longshore and Harbor workers’ Compensation Act of the United States of America, also known as a crew member, a mariner, or a member of a crew. A typical sailor is a member of a commercial vessel’s crew. Vessels, on the other hand, are not restricted to the movement of commodities through the water. The execution of another task by a vessel, functioning as a cruise ship, demands the presence on board of workers who do not ‘man, reef, and steer’ the vessel. Exploration for oil and gas in navigable seas has broadened the definition of a seaman.
According to the other legal dictionaries, a “seaman” is a person who has been certified qualified by national law or regulation to perform any job required of a deck department member of the crew. The phrases “seaman,” “mariner,” and “member of the crew” are used interchangeably with the term “seafarer.” A vessel’s crew consists of the Master, officers, and ratings. However, according to some accounts, the crew are members of the ship’s company with a rank lower than that of a ship’s officer. A crew member is a person who has been assigned by a carrier to serve aboard a ship, aircraft, barge, or vehicle and has their name listed as such.
Definition of seafarer in International Maritime Labor Law
The word “seafarer” is defined in several existing international labour treaties that were examined throughout the MLC (Maritime Labor Convention) drafting process, and many of them were amended by the MLC. The phrase “seaman,” which is regarded as an equivalent term to the term “seafarer,” is used in the earliest customs. As a result, under Article 1 (1) of the Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8), the word “seaman” refers to any individual employed on any vessel engaged in maritime navigation. The word sailor is defined in Article 2(b) of the Seamen’s Articles of Agreement Convention, 1926 (No. 22) as “any individual employed or occupied in any capacity on board any vessel and recorded on the ship’s articles.” It does not include masters, pilots, cadets, and pupils aboard training ships, as well as properly indentured apprentices, navy ratings, and other people in the permanent service of a government.
Later conventions use the word “seafarer,” which defines a “seafarer” as any individual engaged in any capacity onboard a seagoing ship to which the conventions apply. Article I (1) (d) of the 1996 Seafarers Convention Recruitment and Placement (No. 179) provides a somewhat different definition: a seafarer is anybody who meets the requirements to be hired or engaged in any capacity onboard a seagoing ship. Some conventions include additional criteria for determining who is a seafarer. Article 1 (7) (d) of the Labor Inspection Convention 1996 (Seafarers) (No. 178) specifies that if there is any uncertainty about whether any groups of people are to be considered seafarers, the central coordinating authority will decide the question after consulting the organizations of ship owners and seafarers concerned. Some ILO (International Labor Organization) treaties leave the determination of the seafarers’ group to the member states’ decision through national laws, regulations, or collective agreements. Some agreements specifically exclude certain groups of individuals from the definition of the seafarer. In its report on duplicative or contradictory text in the existing maritime instruments of the ILO (39 maritime Conventions, a Protocol, and 28 Recommendations), the Tripartite Subgroup of the High-level Tripartite Working Group on Maritime Labor Standards (STWGMLS) (second meeting) on 24-28 June 2002, provides a summary of “seafarer” legal definitions in existing maritime conventions: Sixteen Conventions define the term “seafarer” (seaman), with three pairs of them; Conventions Nos. 22 and 23, 70 and 71, and 164 and 166 – having the same definition.
As a result, there are 13 distinct meanings of “seafarer” in the ILO’s marine Conventions. The varied meanings of “seafarer” serve the diverse purposes and scope of the separate Conventions, and they vary greatly. The variation in the concept relates mostly to the exclusion of vessels on which sailors are employed. Although the definitions of “seafarer” vary significantly across extant labour agreements, the fundamental criteria for a person to be declared a seafarer is their job onboard a ship to which the convention applies. Other requirements are also specified, for example, employment in the deck department, an entry in the ship’s articles. Many ILO agreements are principally concerned with the employment status of people involved in some manner in the operation of the ship, the “crew.”
What is a seafarers employment contract?
Most of the Flag States needed “crew agreements” prior to the introduction of the MLC, which defined the basic conditions of work. Before the vessel could execute the crew agreements the Flag State had to ratify, although a paper was sufficient for all the crew who had been signed while joining and departing the ship. With the arrival of the MLC, all this changed. For almost all aspects of the working circumstances of seamen, MLC stipulates minimum requirements – in fact, a ‘Law of Rights.’ In addition, the signing articles of ships flying the Red Ensign were obsolete when the MLC came into force. Consequently, every seaman operating on a commercial boat must now obtain a Flag State Seafarer Employment Agreement (SEA).
In particular, the MLC mandates that each flag State has, in terms of crew employment, for each crew member a properly recorded and legally enforceable contract rather than a general crew agreement. This is called an employment agreement for seafarers (SEA).
The MLC Regulations state that:
- Every seafarer has the right to work in a safe and secure environment that satisfies safety standards;
- Every seafarer has the right to reasonable working conditions;
- According to the MLC Regulations, every seafarer has the right to a suitable working and living environment onboard ship;
- Every seafarer is entitled to health care, medical treatment, Payments for welfare and other forms of social support;
- The terms and conditions of a seafarer’s employment shall be specified or referred to in a clear written legally enforceable agreement that meets the criteria of the Code.
The SEA is an agreement between a single crewman and the owner, agent, or company owned by the vessel. In most cases, the owner has little participation in the vessel’s administration; because many vessels are owned by a business and managed by a management firm.
It must be written in the crewmember’s native tongue. If the language is not English, a translation into English must be retained on board the ship. The crewmember and the vessel’s employer must sign the SEA, and a copy must be kept by the crewmember as well as a copy onboard the vessel. (The need of having a copy onboard was demonstrated barely two weeks after the MLC went into force when a vessel was detained in Denmark because none of the crew had a SEA.)
What is the relevance of the seafarer’s employment contract?
Since the Maritime Labor Convention (MLC) went into force, mandatory minimum criteria for seafarer employment agreements and wage payment have been adopted internationally. The seamen must sign a contract of employment with both the seamen and the owner of the employer/ship.
Every seafarer working on a British sea-going ship is obligated by the Maritime Labor Convention (Minimum Seafarer Requirements, etc.) Regulations 2014 (S.I. 2014/1613) must have a written SEA with the seafarer/employer detailing the shipyard’s work. A training agreement should be entered into with a training provider for trainees with the sole purpose of working in a navy and receiving training as seamen for the purposes of the Trainers Maritime Shipping Convention (Minimum Requirements for Seafarers, etc.). This training agreement can be considered significantly equal to a SEA.
What are the essential clauses in a seafarers employment contract?
All seagoing ships must have a former employer/shipowner employment agreement. The employment agreements for seafarers should, in all instances, include the following specifics in accordance with standard A2.1 of the MLC:
- The complete name of the mariner, date of birth, age and place of birth;
- Name and address of the shipowner;
- The position in which the seafarer will be employed;
- The number of the seafarer’s earnings or, if appropriate, the method used to compute them,
- The number of days of paid annual leave;
- In the event of temporary agreements, the termination of the agreement and its terms: the date of the agreement’s expiry;
- The provision of health and social security benefits given to seafarers;
- The right of a seafarer to be repatriated;
- If relevant, a reference to the collective bargaining agreement;
- Any further information that national law may need, in German law: the date on which the seafarer’s employment agreement is signed, the location and date on which service is begun, as well as the agreed-upon hours of labour and rest;
- Before signing, the seafarer must be given the chance to review and seek advice on the employment agreement. The shipowner must make certain that copies of the employment agreement are kept on board for inspection reasons.
The model format for a seafarer employment agreement
This agreement is between:
……………………………………..…….…………………………….
(Insert Seafarer’s full name)
…………………………………..……………………….…….
(Insert date of birth)
…………………………………………….…….…..…….
(Insert place of birth – town and country)
AND
………………………………………………………………………………………
(Insert Ship owner’s name)
………………………………………………………………………………….
(Insert Ship owner’s full address)
CAPACITY IN WHICH SEAFARER IS TO BE EMPLOYED
The first capacity in which you are engaged is ………………………..…………………….. (Insert capacity)
PLACE OF WORK
You will be employed on …………………………………………………..……………..
(Insert the name of the vessel or specify any vessel owned, managed, or chartered by the shipowner)
WAGES
Your pay will be ………………………………………..… (Insert amount and currency) per week/month/year (delete as appropriate) or formula for determining wages
MEANS OF PAYMENT OF WAGES
Your wages will be payable by……………………………. (Insert method of payment) at weekly/monthly (delete as appropriate) intervals on the ………………. (Insert the number) day of each… …………Week/Month (delete as appropriate)
(Overtime hours i.e. Hours performed outside of normal working hours will be compensated at the rate of………………………… (Insert the overtime rate here) (Remove this sentence if it is not applicable)
PAID ANNUAL LEAVE
You are entitled to take ……………………………. In each year of employment, you are entitled to (insert number of) working days as paid leave.
If your employment began or ended during the holiday season, your right to paid annual leave will be calculated on a pro-rata basis. Any paid yearly leave taken in excess of your entitlement will be deducted from your last salary upon the termination of service.
There is no provision for carrying over paid annual leave from year to year. All paid annual leave must be used in the calendar year in which it is accrued. There is also no provision for reimbursement in lieu of untaken leave, save when paid annual leave has accrued but has not been used at the time of job termination.
NOTICE OF TERMINATION OF EMPLOYMENT (Delete whichever is not applicable)
Definite Period Agreement
Your employment is for the period beginning on………………… (Insert date) and ending on…………….. (Insert date), unless it is terminated for justified reasons prior to this point or the ship is at sea at that time, in which case it will continue until the ship arrives in port, at which point it will terminate.
OR
Indefinite Agreement
The amount of notice you must provide to terminate your job is (insert notice period which is to be not less than seven days).
The period of notice you are entitled to from the shipowner to terminate your employment is………………………. (Insert a notice period of no less than seven days.)
OR
Voyage Agreement
Your employment is for the duration of the voyage of [ship] beginning on………… (Insert date) from the port of………………………. (Insert the name of the port) until………………… (Insert date) or the vessel’s arrival in the port of………………………. (Insert port name), at which point it will cease unless terminated earlier for justifiable reasons.
HEALTH AND SOCIAL SECURITY BENEFITS
If you get ill or wounded while on a journey, you will be paid your regular basic pay until you are repatriated in line with the rules for repatriation set down below. After being repatriated, you will be paid……………….percentage (insert number) of your normal basic wages up to a maximum of…………………………weeks (insert the number which must be 16 or higher) less the amount of any Statutory Sick Pay or Social Security Sickness Benefit to which you may be entitled………………….. (Insert number) working days in total in any one sick pay year)
If you require medical attention while onboard, it will be supplied at no cost, including access to required drugs, medical equipment and facilities for diagnosis and treatment, as well as medical information and knowledge. Where possible and appropriate, you will be granted permission to consult a qualified medical doctor or dentist in a port of call for treatment.
In the event of sickness or incapacity, you will be provided with medical care, including medical treatment and the supply of necessary medicines and therapeutic devices, as well as board and accommodation away from home, until your recuperation or your sickness or disability is deemed of permanent nature, for a maximum duration of…………..weeks (insert the number which shall be 16 or above). Furthermore, the shipowner will cover the expense of returning your belongings left on board to you or your next of kin.
If you die on board or ashore during a trip, the shipowner will cover the cost of burial or cremation where appropriate or required by local regulations, as well as the return of any property left on board to your nearest kin.
REPATRIATION
If you are not in your country of residence when this agreement expires, you will be entitled to repatriation at the expense of the shipowner:
- By the shipowner.
- By you in the case of illness, accident, or other medical condition necessitating your repatriation, if the ship is on route to a Warlike Operations Area, or if your work is terminated or interrupted in accordance with an industrial award or collective agreement.
- Under situations when you are no longer able or cannot be expected to carry out your responsibilities under this agreement, such as a shipwreck, the sale of your ship, or a change in your ship’s registry.
The right to repatriation involves transportation via………………… (Insert mode of transportation here) to……………………………………. (Insert place name or country).
Note: In the event that you have been fired on disciplinary grounds or have broken your responsibilities under this Agreement, you may not be entitled to repatriation at the expense of the shipowner. In such cases, the shipowner is still obligated to repatriate you but may deduct the expense of doing so from any earnings owed to you.
Maximum service time length after which you are eligible for repatriation
The maximum term of service after which you will be eligible for free repatriation is……………….months (insert number of months – no more than 12 months).
APPLICABLE COLLECTIVE BARGAINING AGREEMENT(S) (delete if not applicable)
Your employment shall also be governed by the Collective Bargaining Agreement(s) agreed upon………………………………………………………….. (Insert date(s)) between the shipowner and…………………………………………….. (Insert information of the other parties to the collective bargaining agreement(s)) contains additional terms and conditions and is incorporated into this Seafarers’ Employment Agreement, as appended.
HOURS OF WORK
Your regular working hours are…………….. (Insert time) to…………….. (Insert time) from………………………… (Insert day of week) to…………………… (Insert day of week) inclusive.
Your work hours will be structured in such a way that you obtain a minimum of 10 hours of rest each 24-hour period and a minimum of 77 hours of rest per seven-day period. Except in an emergency, this minimal time of rest may not be decreased below 10 hours.
You may be asked to work extra hours during an emergency affecting the safety of the ship, its passengers, crew, or cargo, or the maritime environment, or to help other ships or individuals at risk, at the sole discretion of the Master. You may also be forced to work extra hours for safety drills including musters, firefighting, and lifeboat drills. In such cases, you will be given (a) compensated rest period as a result (s).
COMPLAINTS AND DISCIPLINARY PROCEDURES
(a) Complaints
If you have a complaint about your job, you should follow the ship owner’s complaints procedure, a copy of which will be supplied to you when you board the ship.
(b) Disciplinary Rules and Procedure
Merchant Shipping Law N.106 (I)/2000 on Criminal and Disciplinary Liability of Seafarers lays forth the disciplinary regulations that apply to you.
ADDITIONAL PROVISIONS INCLUDED BY SHIPOWNER
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
………………………………………………………………………………………………
Signature of Seafarer
…………………………………………….………………….………………………………..
Signature of Shipowner or Ship owner’s representative ……………………………..
…………………………………………………………………… (State position held)
Place where this Agreement is entered into
………………………..……………………………
Date when this Agreement is entered into
……………………………..…………………………
References
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