Crew Repatriation, Ship Owner's Responsibility Under Russian-Ukranian War

Crew Repatriation, Ship Owner's Responsibility Under Russian-Ukranian War
NSN Law Firm March 29 2022 https://www.lexology.com/library/detail.aspx?g=e8499f9e-ae2d-4a7e-8384-a...

Repatriation is one of the obligations of the ship owners which arises with the termination of the employment agreement of crewmembers. With the termination of the employment contract between the crewmember and ship owner, the crewmember is entitled to claim repatriation. In principle, repatriation includes transfer of the crewmember to the port of registry or to the location which is determined by the parties in the contract, upon the termination of the employment contract without notice by the crewmember or ship owner or upon termination on its own motion. Moreover, all mandatory costs during this journey must be covered by the ship owner.

Due to the current Ukraine-Russia war, difficulties may arise regarding the responsibility of the ship owner in cases such as taking measures that hinder the mobility of the ships and the failure to carry out the repatriation processes of the crewmember. Basic rules regarding repatriation, the responsibilities of the ship owner and the crewmember are regulated under Maritime Labor Code No. 854, the Repatriation of Seafarers Convention No.166 prepared by the International Labor Organization (ILO) and Maritime Labor Convention (MLC 2006) which involves the Convention No. 166 as well.

Maritime Labor Code numbered 854 shall be implemented to the crewmembers which work with an employment contract on board the Turkish flagged vessels weighing 100 gross tons or over and their employers. “Repatriation of Seafarers Convention No.166”, however, shall be implemented to all the employees which work on board the seagoing vessels registered in the territory of any Member State the Convention is in force. These regulations shall be implemented regardless of the nationality of the crewmember. In the case of these two legal norms are regulating the same issue which contradict to each other, the Convention No. 166 must be applied since it is an international agreement and it contains provisions that in favor of the crewmember.

Requirements for a crewmember to entitle to claim repatriation, responsibilities of the ship owner and the crewmember is regulated between the Articles 21 and 25 of the Maritime Labor Code No.854 and the above mentioned Convention No. 166. Although the rules regarding repatriation have been determined in both national and international legislation, it is also important to solve the difficulties that arise during the repatriation of the crewmember and the responsibility of the ship owner.

Obligation of repatriation brings with it the question of which location the crewmember to be repatriated and up to what stage the obligations of the ship owners will continue during this process of repatriation. Due to the Ukraine-Russia war, it’s crucial to examine these subjects so as to protect both parties’ rights.

In the Article 3 of the Convention, the prescribing of destinations is left to each Member States, still, the crew member’s place of engagement, the place stipulated by collective agreement, the crew member’s country of residence or other place as may be mutually designated at the time of engagement were included in the destinations. Thus, it has been ensured that a crew member shall have the right to choose from among the prescribed destinations the place to which he or she is to be repatriated.

However, articles 21 and 23 of the Maritime Labor Code stipulates that regardless of whether the vessel is in the domestic or abroad, in the case that employment agreement is terminated by the crewmember or the ship owner without notice or terminated on its own motion, the crewmembers should be repatriated to the port of registry by the ship owner, unless otherwise is agreed in the agreement. Yet, if another port is specified in the employment agreement for the repatriation of the crewmember, the repatriation will be made to the designated place.

Except that, regardless of whether the termination is occurring with or without notice, for foreign crewmembers, in principle, there is an obligation to repatriate them to the port of their residence, unless otherwise is designated in the employment agreement.

In the case of the employment agreement being terminated whilst the vessel was still on sailing, the date of the termination shall be deemed to have prolonged up to the time the ship will be secured with the arrival at the designated port and in case of the change of the designated port, with the arrival at the first port.

The responsibilities of ship owners shall continue until the repatriation is completed. If crewmembers cannot be repatriated to the designated port since it is not safe and practical or due to the Ukraine-Russia war sanctions, they must be repatriated to an alternative place upon their consent. This also applies to Russian crewmember who cannot be repatriated to Russia due to sanctions on Russia. Besides, as is known, travel within Ukraine is now not possible, practical or safe in these days. It is therefore unlikely that ship owners will be able to make arrangements for crewmembers to repatriate safely to their hometowns in the Ukraine. Under these circumstances it will be necessary for ship owners and crewmembers to agree an alternative port for repatriation and eventually it may cause the employment contract to change.

In the event of a crewmember is sent to an alternative port, ship owner’s obligations to that crewmember shall continue until the repatriation is completed. In light of the current crisis in Ukraine many Ukrainian crewmembers are requesting to be released from their employment contract before the original termination date. In that case, ship owner may agree to any request to end the contract early and permit the crewmember to be repatriated. However, in order to protect the rights of parties, it is important that these subjects are stated in the contract or addendum.

The ship owner’s responsibility also continues until the repatriation process is completed in case of crewmember’s illness or injury during repatriation to the alternative place. There are different thoughts in the doctrine on the validity of a written waiver to be taken stating that the crewmember waives her/his claim for compensation related to the repatriation process, after the termination of the contract. Such a waiver must, in any case, meet the requirements set forth under the Turkish Code of Obligations as minimum.

Difficulties also arise as to whether the ship owner can extend the terms of agreement in case the crewmember’s repatriation after the termination of agreement is not possible, practical or safe due to the Ukraine-Russia war. Article 2 of the Convention No.166 stipulates that national laws or regulations or collective agreements shall prescribe the maximum duration of employment on board which a crewmember is entitled to repatriation; such periods shall be less than 12 months. There is no regulation regarding this subject in the Maritime Labor Code No.854, and it has been determined by maritime industry that this period should be 11 months at the most. In addition, the ship owner has an obligation to ensure that whether crewmember’s contract extensions breach any applicable guidelines or regulation of the flag state.

It is regulated in Article 21 of Code No.854 and Article 4 of Convention No.166 that the repatriation costs may be requested from the crewmember in case the employment contract is terminated by the ship owner for just cause. In addition, in the event of the ship owner does not fulfil his/her responsibilities regarding repatriation, the crewmember may demand repatriation expenses and compensation in the amount of his/her 15-day wage in accordance with the Article 24 of the Maritime Labor Code No.854. Furthermore, if the ship owner is not the employer of the crewmember, national legislation shall be without prejudice to the ship owner’s right to collect repatriation expenses from the crewmember’s employer.

Pursuant to the Article 25 of Code No.854, if a crewmember whose employment agreement is terminated in a foreign country, whether or not he/she is related to the maritime affairs in that country, makes an employment contract with another employer, the ship owner will no longer be obliged him/her to repatriate. Likewise, it is regulated in the mentioned law that in case the crewmember does not request her/his repatriation within one week following the termination of her/his employment agreement, the ship owner’s obligation to repatriate will be abolished.

Considering that the principle of interpretation in favor of the employee in Turkish Law and the possibility of this principle to be implemented to the relationship between ship owners and crewmembers, it is important to make all the notifications in writing and keep the records in the logbook to avoid any problems regarding the burden of proof.