Seafarers' Rights International - Image © P. Terraz

One of the most common complaints handled by seafarer organisations is unpaid wages. This is an area steeped in legal history which is still evident in how the situations can be handled today. The regulation dates from the 19th century when the customary rules of the sea, and the edicts of particular ports, were increasingly overlaid by State intervention. Whilst the laissez-faire culture of the 19th century dominated the common law courts, the admiralty court exercised a general jurisdiction based on liberal and equitable principles in its dealings with contracts between shipowners and seafarers. In 1823, in Harden v Gordon, Justice Story, in a memorable opinion, quoted in part, 199 years later by the U.S. Supreme Court in Garrett v Moore-McCormark Co. Inc, laid down those basic principles which in a large measure explain the ‘ward of admiralty theory’ and its application to releases given by seafarers when he said:

“Every court should watch with jealousy an encroachment upon the rights of seamen, because they are unprotected and need counsel; because they are thoughtless and require indulgence; because they are credulous and complying; and are easily overreached. But courts of maritime law have been in the constant habit of extending toward them a peculiar protecting favor and guardianship. They are emphatically the wards of admiralty; and though not technically incapable of entering into a valid contract, they are treated in the same manner as courts of equity are accustomed to treat young heirs, dealing with their expectancies, wards with their guardians and cestuis que trust with their trustees. They are considered as placed under the dominion and influence of men, who have naturally acquired a mastery over them; and as they have little of the foresight and caution belonging to persons trained in other pursuits of life, the most rigid scrutiny is instituted into the terms of every contract in which they engage. If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transactions is that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as inequitable.”

The Maritime Lien for seafarers’ wages

In 1825 in the Minerva, Lord Stowell (the leading British admiralty judge) said, speaking about merchants and seamen:

“On the [one] side are gentlemen possessed of wealth and intent, I mean not unfairly upon augmenting it, conversant in business and possessing the means of calling in the aides of practical and professional knowledge.”

“On the other side is a set of men, generally ignorant and illiterate, notoriously and verbally reckless and improvident, ill provided with the means of obtaining useful information and almost ready to sign any instruments that may be proposed to them; and on all accounts requiring protection, even against themselves.”

These attitudes were built on a conviction that seafarers were irresponsible by nature and disadvantaged as a class and that the individual seafarer was incapable of effectively bargaining with his employer. When the law did provide benefits for seafarers, it treated them as objects of protection rather than rights bearing legal persons with legitimate claims and expectations. Today the historical development of the maritime lien for seafarers’ wages can be seen in most jurisdictions. Because of the international nature of the subject, it is one that is particularly apt to be regulated by treaty or Convention.

There are three international conventions governing maritime liens. Claims by seafarers are, however, secured and preferred by maritime liens in all three conventions and in the laws of most states.

On 2 June 1931, the International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages 1926 (the ‘1926 Convention’) entered into force, and 25 states are bound by the 1926 Convention. These are Algeria, Argentina, Belgium, Brazil, Cuba, Estonia, France, Haiti, Hungary, Iran, Italy, Lebanon, Luxembourg, Madagascar, Monaco, Poland, Portugal, Rumania, Spain, Switzerland, Syria, Tunisia, Turkey, Uruguay and Zaire (now the Democratic Republic of the Congo).

The International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages 1967 (the ‘1967 Convention’) is not yet in force. Only six states are party to the 1967 Convention. These are Denmark, Morocco, Norway, Sweden, Syria and Vanuatu. The Convention is not binding on these countries since it is not yet in force.

The International Convention on Maritime Liens and Mortgages 1993 (the ‘1993 Convention’) entered into force on 5 September 2004, and 13 states are bound by the 1993 Convention. The states are Ecuador, Estonia, Lithuania, Monaco, Nigeria, Peru, Russia, Spain, St. Vincent and the Grenadines, Syria, Ukraine and Vanuatu.

It will always be important to take local advice on all matters relating to maritime liens.

SRI IN THE NEWS: WAGES