It is the duty of the shipowner to ensure that you are not abandoned. But if you are abandoned, you have various legal rights that should ensure that you are repatriated to your country at no cost to yourself. This Fact File aims to provide you with information about the rights that are likely to be available to you in most countries, bearing in mind that the law governing your rights will vary from country to country. For further information, see the Guides on the Abandonment of Seafarers in specific countries on the website of Seafarer’s Rights International (‘SRI’) at www.seafarersrights.org.
This Fact File is not intended to be legal advice, nor does it constitute legal advice. To ensure the enforcement of your rights in court you are strongly advised to consult a lawyer qualified to practise in the country where you are abandoned. For further information on lawyers, see the Guides on the Use of Lawyers in specific countries, the Fact File on the Use of Lawyers, and the list of lawyers who have subscribed to SRI’s Code of Conduct on this website.
DEFINITION OF ABANDONMENT
Under the Maritime Labour Convention 2006 (‘MLC’), you are deemed to have been abandoned if the shipowner fails to cover the cost of your repatriation; or has left you without the necessary maintenance and support; or has otherwise unilaterally severed his ties with you, including his failure to pay your contractual wages for a period of at least two months.
In countries where the MLC does not apply, there is often no legal definition of abandonment. But you will, as a general rule, be regarded as abandoned if you are left behind by your ship in a foreign port, or you are left in your ship which is abandoned in a foreign port, or you are put ashore and your ship is abandoned in a foreign port. Furthermore, various consequences may flow from your abandonment. Your wages may be unpaid or underpaid and you may be without accommodation, food, water, or medical care, and the master of your ship may be without instructions from the shipowner and without the financial means to supply and operate the ship and to pay for your repatriation. In these circumstances, you will be deemed to be abandoned under the national laws of most countries.
EARLY SIGNS OF ABANDONMENT
If your wages have not been paid, if your food and water is running low, or if services and supplies provided to your ship have not been paid, it is possible that you and your ship may be abandoned. In such circumstances, you should take action as soon as appropriate.
ORGANISATIONS AND PERSONS YOU MAY CONTACT IF YOU ARE ABANDONED
If you are abandoned, you should consider contacting the shipowner, flag state, port state, your national state, the International Transport Federation (‘ITF’) other trade unions, welfare organizations and, if necessary, a local lawyer. In some circumstances, if so advised by your lawyer, it might be better to take legal action without notice to your shipowner. The persons you should contact and the type of actions you should take depend on the circumstances and consequences of your abandonment.
You may, however, be unsure as to who you should contact. This is understandable since your legal situation may be complicated, unique and subject to different laws within the country in which you are abandoned. You may therefore need a local lawyer to advise you as to the advantages and disadvantages of the various rights that are available to you. For further information, see the Guides on Using Lawyers in specific countries or the Fact File on Using Lawyers on SRI’s website at www.seafarersrights.org
DEALING WITH UNPAID WAGES, FOOD, WATER, MEDICAL EXPENSES AND REPATRIATION COSTS
Your rights under the MLC
The MLC should provide you with a financial security system that must be sufficient to pay for your outstanding wages and the necessary maintenance and support (including adequate food, accommodation, drinking water supplies, essential fuel for survival on board the ship and necessary medical care) limited to four months of any outstanding wages and four months of any outstanding entitlement. The financial security system also covers the costs of your repatriation by appropriate and expeditious means, normally by air, and includes food, accommodation and medical care from the time you leave your ship until the time you arrive at your home.
The financial security system must provide you (or your nominated representative) with direct access, sufficient coverage and expedited financial assistance to pay for your outstanding wages and entitlements.
If you need to invoke the financial security system, be aware that your ship must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider. Furthermore, a copy of the certificate must be posted in a conspicuous place on board where it is available to you.
Under the MLC, if your shipowner fails to meet the costs of your repatriation, your flag state must arrange for your repatriation. If it fails to do so, the country from which you are to be repatriated or the country of which you are a national may arrange for your repatriation and recover the costs from the flag state of your ship. In no case is your repatriation to be paid by yourself, except if you have been found to be in serious default of your employment obligations.
Your rights under the MLC are not intended to be exclusive or to prejudice any other rights, claims or remedies that may also be available to compensate you if you have been abandoned. In the event that full and complete effect has not been given to your rights under the MLC or are inadequate, you should consider the additional rights that you might have under the national laws of the country in which you have been abandoned. These rights are set out below.
Your rights to a maritime lien and to arrest the ship on which you worked
In addition to your rights under the MLC, you have a maritime lien under various international conventions and many national law to secure your claim for wages and other entitlements (which would usually include food, drinking water, and medical care) and the costs of your repatriation. Your maritime lien is enforced by the arrest of the ship on which you worked, which is then sold by order of court to pay your claim for wages. Depending on your employment agreement and the circumstances of your case, you may still continue to earn wages and other entitlements while you enforce your claim in court.
In many countries, when you enforce your maritime lien by exercising your right to arrest your ship, you will probably be regarded as a secured creditor so that the high ranking of your claim for wages and repatriation is not adversely affected by the insolvency of your employer.
You will generally not be required to stay on board your arrested ship, or in the country, while your claim for your wages and repatriation is enforced in court; but in some jurisdictions you may be required to stay in the country as part of the legal process. Your stay in the country, or return to the country, may also be necessary should you be required to testify as a witness in support of your maritime claim against the shipowner, or criminal prosecution of the shipowner, for your abandonment.
If other seafarers on your ship are also unpaid, it may be advantageous for you and them to join together to instruct a lawyer to enforce your maritime liens. For further information, see the Guides on Maritime Liens for Seafarers’ Wages in specific countries and the Fact File on Maritime Liens for Seafarers’ Wages on this website.
Your right to arrest a sister ship on which you did not work
If your ship has left you behind and cannot be detained to enforce your rights under the MLC or arrested to enforce your rights under your maritime lien, a sister ship may, depending on the circumstances of your case and the national law, be arrested in the place of the ship on which you worked. The arrest of a sister ship would secure your claim that arises out of your contract with the shipowner for wages, food, drinking water, medical care and repatriation costs.
The right to arrest a sister ship extends to ships in the same ownership; and, in some countries, is extended even further to associated ships, that is, to ships under common control as opposed to common ownership. For further information, see the Guides on Ship Arrest in specific countries and the Fact File on Ship Arrest on this website.
Your right to a court order preventing the shipowner from evading your claim
If you have been abandoned by your shipowner, you might have reason to believe that he intends to evade the enforcement of any judgment you may obtain on the basis of your employment agreement by removing his ships and any other assets from the country in which you have been abandoned.
In these circumstances, you may in some countries bring an urgent application before the local court – without informing the shipowner – so as to obtain an order preventing him from removing his ship, any sister ship, or any other asset from the country in which you have been abandoned. The court order might even apply worldwide to the assets of the shipowner and be enforceable by foreign courts. The assets subject to the court order may be of any type, but are most frequently bank accounts, insurance proceeds and ships.
If you make a full and frank disclosure of your claim, have an arguable case, have identified assets of the shipowner and can show that there is a real risk that the assets will be removed, the court may order the shipowner not to remove his assets, if it is just and convenient to do so. Any judgment you get against the shipowner based on your employment agreement can then be executed against these assets.
TRADE UNIONS AND WELFARE ORGANIZATIONS
It is unlikely, but possible, that neither the MLC nor your rights to a maritime lien, to arrest a sister ship or to obtain a court order preventing the shipowner from removing his assets may provide you with the funds to deal with the consequences of your abandonment.
This could happen if, for example, you are employed on a ship that is not subject to the MLC (or where the financial security system under the MLC is cancelled or terminated or proves to be inadequate or is repudiated); and the ship is owned by a one ship company, uninsured and of insufficient value to pay your claim; and the shipowner has no other asset against which you could execute your judgment against him.
In such circumstances, there is a Seafarers Emergency Fund (‘SEF’), established by the TK Foundation and the ITF Seafarers’ Trust, and administered by the International Seafarers’ Welfare and Assistance Network (‘ISWAN’), which may provide you with accommodation, food, water and medical assistance and the costs of your repatriation. An Applying Organization must apply to the SEF on your behalf and confirm that you are a seafarer in need. The Applying Organization must also confirm that it is ‘reasonably certain that alternative funding is not readily available locally or from other legally responsible parties such as ship owners, employment agencies, flag states or similar resources.’ The Applying Organization will provide or purchase the goods or services for you and no funds will be given directly to you. For further information, see the website of ISWAN at www. seafarerswelfare.org
DEALING WITH DETENTION AND DEPORTATION
If you are abandoned in a foreign country and are no longer in employment you may be deemed to be unlawfully in the country unless you have a valid passport, a visa to enter the foreign country, and a valid seafarer’s identity document. If you are deemed to be unlawfully in the country you, as a general rule, have an obligation to leave the country, and while you are in the country you may have no right to apply for a visa.
You might be held in detention and then deported from the country. Sometimes, as a consequence of being deported, you may be prevented from returning to the country for a period of time, or even indefinitely; and your deportation might even prevent you from gaining lawful entry into another country.
To avoid the possibility of these consequences, you are strongly advised to consult a local lawyer. The lawyer may need to consult with the government of the port state and your embassy or consulate so as to avoid your detention and deportation.
REDUCING THE RISK OF YOUR ABANDONMENT
Most shipowners are good employers. The risk of your abandonment can be greatly reduced by entering into an employment agreement with an employer who has a good reputation and a collective bargaining agreement.
You should make sure that your employment agreement is written and signed by you and your employer and that it deals with your repatriation in the event of your abandonment, covering your right to repatriation, the destination of repatriation, and the mode and expense of the transport. For further information, see the Guides on Seafarers’ Employment Agreements on the website of SRI at www.seafarersrights.org.
ABANDONMENT CHECKLIST
- Make sure that your employment agreement is written and signed by you and your employer and that it deals with your repatriation in the event of your abandonment.
- Be alert to the early signs of abandonment and take action as soon as appropriate.
- If you are abandoned, you may wish to contact the port state control authority; the flag state of your ship; your embassy or consulate; various government departments in the port state; the ITF, your own or local trade union; various welfare organisations and/or a local lawyer.
- If you have not been paid your wages and need food, accommodation, drinking water supplies, fuel for survival on board your ship and medical care and require repatriation at no cost to yourself, you can directly access the financial security system under the MLC (for up to four months).
- If your shipowner fails to meet the costs of your repatriation under the MLC, you should approach the flag state to effect your repatriation. If it fails to do so, the country from which you are to be repatriated or the country of which you are a national may arrange for your repatriation.
- If you have not been paid your wages (for any period of time) and need repatriation instruct a lawyer to enforce your rights under your maritime lien by arresting the ship to which the maritime lien attaches, or by arresting a sister ship in the event that the ship to which your maritime lien attaches is of insufficient value to pay for your wages and repatriation.
- If your rights to financial security under the MLC; a maritime lien; and to arrest a sister ship are to no avail and the shipowner is seeking to evade your claim, you may be able to obtain a court order compelling him not to remove his assets from the country so that if you get a judgment against him based on your employment agreement you can execute the judgment against those assets.
- You may be able to obtain assistance from the SEF, the ITF, your own or local trade unions and welfare organizations.
- If you are at risk of detention and deportation, you should instruct a lawyer to manage those risks and ensure your repatriation.
- If you are abandoned, the shipowner may be committing a criminal offence.
