Which welfare rights for the crews? Maritime welfare law was initially developed under the aegis of the domestic legal systems of shipping Nations, each setting their own rules on board their ships. Ships’ freedom of registration and shipping internationalization were the main factors undermining domestic frameworks.
As the law of the Flag was deteriorating due to convenience flag practices of many States failing to execute their international obligations, port state control has gained scope to protect shipping safety, for environmental protection, unfair competition issues and out of concern for fundamental welfare rights.
As a result, even in an international business, the seamen are entitled to acceptable working conditions and to enjoy protection of their fundamental welfare rights. Their welfare status protection, compensation, contract of employment must adhere to such legal minimum scopes defined in international conventions ratified by the Flag State, and by the EU law, but they are also governed by the applicable law of the contract of employment.
In that respect, the Paris Memorandum 1982 enforces on ships calling in signatories’ countries, compliance with the IMO’s conventions, inter alia the IWO’s convention 147, 1976. Crews’ skills development is now subject to monitoring the enforcement of the STCW convention. Finally, under the 1996 protocol of the convention no. 147 welfare audits are extended to the working time and ships’ complements while the IWO Convention 2006 on shipping work specified the respective obligations of the Flag State, Port State and of the labor provided state. The last mentioned convention is the fourth pillar of international shipping law along with IMO, SOLAS, MARPOL and STCW.
While the execution of a contract of employment and seamen’s compensation are the subject of negotiations, EU’s statutes create protection regulations to the benefit of seamen, whatever their nationality.
For example, the EU regulation n°CE44/2001 dated 22nd. December 2000 has implemented special jurisdiction rules under which a ship-owner / employer whose registered office is located in the territory of a member State, can be sued to its domicile court’ jurisdiction, as well as in another member State, to wit the court of jurisdiction on the usual place of work of the employee, or the court of jurisdiction on the last place of work or on the facility that hired the employee if the latter does not, or did not usually discharged his professional duties in the same country.
As in the most frequent cases, to the extent that the ship calls on several different ports, the French courts either make reference to the last place where the employee usually works, or to the ship’s port of registry. So the French courts entertain official jurisdiction. Such French court’s jurisdiction is further strengthened by proving the existence of a close link between the relevant court and the dispute. The country of residence of a dismissed seaman is taken into account as well as the ship’s port of registry, whether the ship-owner, the ship and the place where the contract of employment was signed, are aliens.
At all events, it should be remembered that, pursuant to EC regulation of 22 December 2000, a jurisdiction clause naming a foreign court inserted in a contract of employment is not binding on a seaman on a vessel. Such non-binding effect is further strengthened by provisions deriving from the Labor Code, which recall that any jurisdiction clause in a contract of employment shall be null and void. In that respect, the French Cour de Cassation held that the arbitration clause inserted in an international contract of employment with respect to any dispute arising there from, shall not be binding on the employee who took regularly the case to a court of jurisdiction.
Whether the seaman, the owner or the ship’s flag are part of the EU or not is irrelevant: under EU statutes, any person residing in France is entitled to claim the enforcement of the French jurisdiction rules.
As to the determination of the applicable law, based on the Roma Convention 1980 (which subsequently became the community regulation n°593/2008), the courts rule out the law selected by the parties to the contract of employment on the ground that it might deprive the seaman/employee of the protection afforded by the mandatory provisions of the law applicable if no choice of law should appear in the contract. Therefore, failing a choice of law in the contract, the Court will elect the law of the land with which the contract is the most closely linked, the seaman’s domicile/residence and the ship anchorage being the most commonly selected.
As can be seen, a French or foreign sailor having executed a contract of employment with a foreign owner to board a ship also flying a foreign flag is entitled, subject to certain conditions, to evoke the protection of French welfare law, especially in case of dismissal without actual, reasonable cause.
