An area steeped in legal history
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 claims by seafarers is designed to improve the prospects of the claims being paid. To enforce a maritime lien, the ship must be arrested.
There are many considerations for a seafarer contemplating arrest of his ship including:
- Is it necessary to instruct a lawyer to arrest the ship? If yes, is any form of government legal assistance/aid available for the (foreign) seafarers?
- Is it necessary to place a financial bond in court before an arrest of ship can take place?
- Has the market value of the ship anything to do with a ship’s arrest and auction?
- On average how long does it take before the arrest order is granted by the court?
- Will the authorities of the arrest port demand appointment of any watchman to safeguard the ship?
- If the seafarer claimant remains on board, who will look after the seafarer during the arrest, including food and provisions?
- If the seafarer claimant remains on board, will he be paid wages whilst waiting for the ship to be sold?
- On average how long does it take before an arrested ship is sold?
- Can a seafarer claimant be repatriated before the legal claim is completed?
- Will the cost of repatriation be included in the legal claim?
- What claims will have priority against the sale proceeds ahead of the seafarers’ unpaid wages?
- Are there any other useful procedures for a seafarer claimant?
It will always be important to take local advice on all matters relating to arrest of a ship.