6:04 am Thursday, March 16, 2017
By: Atty. Dennis R. Gorecho
In recent time it appears that that seafarers are one of the most exploited and abused group of workers globally. Exploitation, abuse and corruption in shipping industry includes issues related to unpaid, underpaid or delayed payments are the most pressing ones.
In many cases seafarers just wait in anticipation each month for their salary or wages to arrive in their nominated account and that salary or wages never come and also they fear losing their jobs or not getting a ship for future employment they do not raise their voice against their employer.
Seafarers have their legal rights and should not shy away from their legal rights. A crew or seafarers of any nationality can arrest a ship for unpaid or underpaid wages if the ship is found within any territorial waters within twelve nautical miles from the shore.
A seafarer or a crew member can invoke admiralty jurisdiction of the High Court having admiralty jurisdiction and arrest a ship for unpaid wages. An order of arrest of the ship can be obtained from the court having admiralty jurisdiction preferably from the Bombay High Court as this court has pan-India ship arrest jurisdiction, and arrest the ship anywhere in Indian territorial waters, the seafarer may or may not be an Indian citizen to initiate action for arrest of a ship in India and also the ship may be registered anywhere in the world or maybe flying any flag.
Crew claim for unpaid wages should be initiated within the three year period from the due date and if the seaman has died while he was a serving seaman, the period from the date of his death to the date on which his next of kin were first informed of his death shall be excluded.
The documents that needs to be produced in are appointment letter and or the agreement or the employment contract; copy of the passport showing that sign on and the sign off dates; continuous discharge certificate (cdc) showing the capacity of the crew also the sign in and sign off dates; account of wages and or wage slips; correspondences exchanged demanding unpaid wages directly and or through the master of the ship; power of attorney/ letter of authority, this need to be notarised and apostilled at the location where the power of attorney is executed.
Each crew claims are separate cause of action and should there be more than one crew wages that remains unpaid they cannot be clubbed and each crews will have to file separate suit under admiralty jurisdiction.
In most cases the owner of the ship or any person having ship interest settles the dispute out of court. If there is no out of court settlement the crew has a right to make an application to the court for auction sale of the ship pending the suit but cannot withdraw or encash the sale proceeds at interim stage but would be entitled to withdraw or encash the sale proceeds of the ship after obtaining a decree from the court.
The crew has the following rights on unpaid wages:
- obtain order of arrest of the ship or a sister ship anywhere in the world subject to the ship being in territorial waters;
- initiate a civil suit at appropriate jurisdiction;
- claim under section 19 of the Workmen’s Compensation Act 1923 at appropriate jurisdiction; and
- claim before the Magistrates Court at appropriate jurisdiction
A maritime lien for seafarers’ wages, like any other maritime lien or maritime claims, can be enforced by invoking admiralty jurisdiction and obtaining an order of arrest from a High Court having admiralty jurisdiction.
The International Conventions on Maritime Liens and Mortgages 1993 and 1967 have the force of law in India and under these conventions a maritime lien for wages includes wages and other sums due to the master, officers and other members of the vessel’s complement in respect of their employment on the vessel, including costs of repatriation and social insurance contributions payable on their behalf.