It is your right to be paid fully and regularly, according to your employment agreement, for your work as a seafarer. If you have not been paid your wages, there are various steps that you could take. For example, you could use the on-board complaints procedure of the Maritime Labour Convention 2006 (‘MLC’); or refer your complaint to port state control; or involve trade unions and welfare organisations; or invoke the procedures established by your employer or within your employment contract; or request assistance from the flag state.
If you decide to instruct a lawyer to enforce your maritime lien for unpaid wages in court, then this Fact File aims to provide you with information about the maritime lien that is likely to be available to you in most countries, bearing in mind that the law governing your claim will vary from country to country. For information on enforcing your maritime lien for wages in specific countries, see the Guides on Maritime Liens and Wages on the website of SRI at www.seafarersrights.org. This Fact File should be used if there is no Guide on Maritime Liens for Seafarer’s Wages in the specific country where you intend to enforce your claim.
This Fact File is not intended to be legal advice, nor does it constitute legal advice. To ensure the effective enforcement of your maritime lien and claim for wages in court you are strongly advised to consult a lawyer qualified to practise in the country where you intend to enforce your claim. 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 the website of SRI at www.seafarersrights.org.
Your maritime lien for wages
In most countries you have a special right designed to improve your prospects of enforcing in court your claim for wages. This right is defined in law as a maritime lien. Three conventions govern maritime liens: the International Convention for the Unification of Certain Rules of Law Relating to Maritime Liens and Mortgages 1926 (‘the 1926 Convention’); the International Convention for the Unification of Certain Rules relating to Maritime Liens and Mortgages 1967 (‘the 1967 Convention’); and the International Convention on Maritime Liens and Mortgages 1993 (‘the 1993 Convention’). These conventions have not successfully created international uniformity in respect of all maritime liens; but they do indicate that in most countries there will be a maritime lien to secure and prefer your maritime lien for wages.
The 1926 Convention provides a maritime lien for ‘claims arising out of the contract of engagement of the master, crew and other persons hired on board;’ the 1967 Convention stipulates that ‘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’ shall be secured by maritime liens on the vessel; while the 1993 Convention states that ‘claims for 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’ against the ‘owner, demise charterer, manager or operator of the vessel shall be secured by a maritime lien on the vessel.’ This Fact File is largely based on the three conventions, to which many states are parties.
In some civil law countries, where no convention on maritime liens applies, the law does not refer to a maritime lien but to a privileged claim or a priority claim, which is however very similar in effect to a maritime lien.
How your maritime secures your claim for wages
Under the 1926 Convention your maritime lien for wages follows ‘the vessel into whatever hands it may pass.’ In the 1967 Convention the maritime lien is stated to ‘follow the vessel notwithstanding any change of ownership or of registration.’ And, in the 1993 Convention, your maritime lien is said to ‘follow the vessel, notwithstanding any change of ownership or of registration or of flag.’
Under all three conventions, it would make no difference to the existence of your maritime lien whether the vessel to which you rendered your service passes into the ownership, control or possession by a new owner, demise charterer, manager or operator of the vessel or, indeed, any other person.
The maritime lien continues to attach to the ship, providing prejudgment security for your claim. The fact that the new person who owns, controls or possesses the ship may argue that he did not employ you and that therefore you have no right against his ship is not an argument that will prevent the prejudgment security provided by your maritime lien.
How your maritime lien for wages comes into existence and is enforced
Your maritime lien for wages arises automatically as soon as your wages are due and unpaid. You do not have to take any action to create the maritime lien. The maritime lien attaches automatically by law to your ship, without the need for any formality or any special condition of proof. National law will determine which part of the ship is covered by the lien. Bunkers, which can be extremely valuable, are often excluded where they belong to time charterers against whom there is no claim. The same considerations apply to cargo and freight.
You will generally not be required to stay on board your arrested ship, or in the country, while your claim for your wages 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 be necessary should you be required to testify as a witness in support of your maritime claim for wages.
Once your ship has been arrested and you have a judgment in your favour, the court will order the ship to be sold. The proceeds from this forced sale of the ship will be used to pay your wages before most other maritime claims against the ship are paid.
Courts which have jurisdiction over your claim for wages
When your ship is in a port, the court which has jurisdiction over that port area will generally also have jurisdiction over your claim for wages. In some countries such a court has specialized admiralty jurisdiction to give effect to your maritime lien for unpaid wages. The jurisdiction of the court will generally be available to you regardless of your nationality and that of your employer, the flag of the ship, and the country where you entered into your employment agreement.
Occasionally the court may decline to exercise its jurisdiction if your employer can show that there is another court which is more appropriate to decide your wage claim. But the court will not decline to exercise its jurisdiction if this would do you an injustice by leaving you with no other court to decide your wage claim.
Persons who can claim wages
If you are employed on board the ship as the master or as any member of the crew in any capacity you have a maritime lien to enforce your claim for wages. Any person to whom you have allotted any sum of your wages would generally also be entitled to enforce a maritime lien to claim your wages.
Meaning of your wages
Your wages are not only a sum of money regularly paid to you, but also include many other benefits to which you are entitled because of your employment. The three conventions on maritime liens would most probably be interpreted by many national courts to include, for example, emoluments, which are irregular payments such as bonuses or gratuities; deductions made from your wages for your insurance; your paid leave and sick leave; contributions made on your behalf to a pension or a provident fund; your income tax deductions; your trade union dues; damages for your wrongful dismissal; and the costs of your repatriation.
You should have a maritime lien for your wages even if you have no written employment contract
In most countries the law provides you with the right to a written employment agreement. You also have such a right under the MLC. The conventions on maritime liens will probably not be interpreted to deny you a maritime lien for wages if you did not enter into a written employment agreement or cannot obtain your written employment agreement.
Provided you rendered lawful services to your ship, you still have the right to wages and a maritime lien to enforce your right. Your right to wages arises independently of the identity and personal liability of your employer and it makes no difference whether your employer is the shipowner, charterer, manager or operator of the ship or any other person.
Although a written employment agreement is not essential for your maritime lien, it does provide good evidence of your contractual rights. If you are without a written contract, you will have to find other evidence to prove in court that you rendered services to your ship, entitling you to a maritime lien to enforce your claim for wages.
Your claim for wages should be paid before most other claims against your ship
When you have a judgment in your favour, the ship will be sold by order of the court. All the maritime claims against the ship, including your maritime claim, are ranked in order of priority for the purpose of being paid from the proceeds of the forced sale. The claims are ranked if the proceeds are not sufficient to pay all the claims.
Under the 1926 Convention, the maritime claims are ranked as follows: (1) law costs due to the state and expenses incurred in the interest of the maritime claimants to preserve the ship and to procure its sale; tonnage dues, light or harbour dues, and other public taxes, pilotage dues, the cost of watching and preservation of the ship vessel into the last port; (2) your maritime claim arising out of your seafarer’s agreement; (3) your maritime claim for salvage and the contribution of the ship in general average; (4) claims for collision or other accident of navigation and also for damage caused to works forming part of harbours, docks, and navigable ways; and your claim for personal injury. The 1967 Convention and the 1993 Convention provide for somewhat similar rankings and, as a general rule, if your maritime claim for wages is secured by a maritime lien you maritime claim should enjoy a high ranking and most probably be paid before many other claims.
If you have a maritime lien for wages and have arrested the ship you will most probably be regarded as a secured creditor. Your claim for wages should enjoy a high ranking and will probably be paid in full. Your claim, since it is secured and preferred by a maritime lien and the arrest of the ship, should not be adversely affected by the insolvency and liquidation of the shipowner’s company.
When you may lose your right to wages and your maritime lien
If you have not rendered services to your ship because, for example, you deserted the ship or were absent without leave or were guilty of gross misconduct or incompetency you may have lost your right to wages and your maritime lien.
Your right to wages and a maritime lien is also lost, for example, by the payment of your wages, or destruction of the ship, or forced sale of the ship, or an unreasonable delay in enforcing your maritime lien and wage claim.
In many countries you should ensure that you enforce your maritime lien and wage claim before the court within one year from the time when your wages are due and unpaid. The 1926 Convention, the 1967 Convention and the 1993 Convention provide that your maritime lien for wages shall be extinguished after a period of one year from the time when your wage claim arose.
Maritime lien for seafarers’ wages checklist
- Decide if you will enforce your claim for wages by enforcing your maritime lien and arresting a ship; or if your claim for wages can be enforced another way such as a complaint under the MLC; or to port state control; or involve trade unions and welfare organisations; or invoke the procedures established by your employer or within your employment contract; or request assistance from the flag state.
- If you decide to enforce your maritime lien by legal action, you should do so as soon as possible and within one year from the time when your wages become due and unpaid.
- If you do not bring your claim within one year you will probably have lost your maritime lien under the conventions governing maritime liens and many national laws, but this will not affect your rights under the MLC.
- Decide in which port you will have the ship arrested and instruct a local lawyer to enforce your maritime lien.
- Provide your lawyer with your employment agreement and explain to him the services that you rendered to your ship.
- Your right to a maritime lien follows your ship into new ownership, control or possession by a third party, unless the ship has been subjected to a forced sale and transferred into new ownership.
- You most probably have a right to a maritime lien even if your employer takes unlawful possession of the ship or uses the ship to commit a crime, provided that you did not render your services to the ship willfully taking part in the unlawful possession of the ship or the commission of the crime.
- Any agreement which you may have made with the shipowner to give up your rights to a maritime lien will most probably not be enforceable against you in court.
- If you have you deserted your ship or were absent without leave or were guilty of gross misconduct or incompetency you may have lost your right to wages and your maritime lien.
- You claim for wages should be highly ranked and paid before most other maritime claims against your ship, even if the shipowner’s company becomes insolvent.
