2. The Outline of the Thesis
1.3 Seafarers and workers’ compensation system
Historically, shipping and seamen were subject to maritime customs that were independent from land based legal frameworks. The earliest codification of written maritime customs is the Rhodian Sea Code, which was a Byzantine creation, probably written in the 8th century. Legal regulation of seafarers’ injuries on board can be traced back to medieval maritime customs (Couper, 2005). However, the medieval independent sea code tradition did not give seafarers substantial rights following workplace accidents. Later, when labour law and workers’ compensation developed in the 19th and 20th centuries, seafarers’ rights were not properly included in legislative labour protection frameworks (Couper, 2005).
The use of Flags of Convenience has become pervasive, and maritime workers has been globally sourced since the 1970s. International seafarers’ compensation claims are subject to multiple jurisdictions, including Flag States and Seafarer Supply States (DeSombre, 2006; Couper et al., 1999; Bloor et al., 2006; Sampson and Bloor, 2007). According to the territorial jurisdiction principle, Flag States can regulate ships as their ‘floating islands’ and govern seafarers’ compensation claims. According to the passive personality principle of jurisdiction8, Seafarer Supply States can also regulate
compensation claims raised by the seafarers of their own nationalities (Black, 2000; Mandaraka-Sheppard, 2009). In addition, seafarers’ compensation claims can also be subject to a third state’s jurisdiction, if the accident occurs
8 The passive personality principle allows states to claim jurisdiction to try a
foreign national for offenses committed abroad that affect its own citizens. (See Encyclopedia Britannia)
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in a third state’s territorial seas. For example, if the accident occurs in the territorial seas of the US, seafarers’ compensation claims can be subject to US admiralty jurisdiction and US law can be applicable.
The tradition that seafarers are subject to maritime code and excluded from labour law still has a strong influence on current seafarers’ compensation claims. In some states, seafarers are excluded from social security laws for the general workforce. The United States is one example. Seafarers have a peculiar status in American law, and their workplace injuries are subject to a set of rules, Jones Act, 46 USC. SS 688, that are distinct from the general body of labour and tort law (Force et al., 2006; Norris, 1954). In this legislative context, seafarers’ access to social security remedies is not recognised by law and they have to pursue their compensation claims through special admiralty jurisdiction.
In the late 20th century, some states made efforts to ensure seafarers’ equal access to social security in the labour law frameworks. In the UK, following the Social Security Act 1973 through special provisions, the non-fault based industrial injuries disablement benefits were extended to cover seafarers (Kitchen, 1980). In addition to the seafarers working on British Flag vessels, some British residents working on non-British vessels can also access the UK social security system9. British seafarers, who work in the UK or in any other EU country or Norway, once injured, are entitled to the industrial injuries
disablement benefits from the UK National Insurance Fund10. In addition to
the social security benefits, seafarers are still entitled to sue their shipowners, if they can establish fault-based compensation claims (Newdick, 2005).
9 UK residents work: on a ship registered outside the UK, but your employer
is based in the UK and your contract was signed in the UK; on a ship registered in Bermuda and owned in Bermuda, but that calls regularly at UK ports in UK inshore waters or between UK ports (with no visits to a foreign port in-between) in the designated UK sector of the Continental Shelf on a
ship engaged in exploration or exploitation of oil or gas.
(https://www.gov.uk/guidance/national-insurance-if-you-work-on-a-ship)
10 Legislation (13) - SS C&B Act 1992 sec 117 and Legislation (14) - SSB
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Seafarers working on British vessels and British seafarers working on certain non-British vessels have equal access to the social security system.
Nowadays, in some regions and states, migrant seafarers have equal rights to local workers of the Flag states. For seafarers working on Hong Kong vessels, compensation claims are subject to the Employees' Compensation Ordinance 1980 (Chapter 282), which is a no-fault, non-contributory employee compensation system for work injuries. As for other land-based Hong Kong workers, local and foreign seafarers working on Hong Kong vessels have equal rights to claim compensation from their employers (shipowners) following workplace accidents. In Singapore, seafarers’ compensation claims are subject to the Merchant Shipping (Maritime Labour Convention) Act (2014) and Work Injury Compensation Act 2009. Through special provisions, local and migrant seafarers are able to claim non-fault based compensation from their employers in Singapore. Hong Kong and Singapore are two large flag states in the global shipping industry11, and seafarers working on their fleets are entitled to non-fault based compensation according to the labour law. However, the workers’ compensation systems in Hong Kong and Singapore largely rely on private liability insurance of employers and seafarers cannot claim compensation from a public fund. As discussed above, in the private insurance oriented. workers’ compensation system, the relationship between employers and employees can be more adversarial compared to under the unitary state fund mode.
Although in the jurisdiction of some flag states, migrant seafarers are entitled to equal rights in labour law, for injured seafarers, to enforce their rights in a foreign country is highly challenging. Considering this, Seafarers Supply States has also developed legal instruments to protect their citizens’ rights. In the Philippines, a major maritime labour supply country, overseas seafarers must be hired under the terms of the approved Philippine Overseas Employment Administration (POEA) Standard Employment Contract (SEC).
11 Hong Kong ranks four and Singapore ranks six in terms of registered Dead Weight Tonnage (DWT).
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This contract is negotiated through tripartite consultation involving the seafarers and the private sector (Gancayco, 2005). In the case of workplace injuries, Filipino seafarers can obtain non-fault based compensation from shipowners according to the standards stipulated by the POEA-SEC.
Compared to land-based workers, seafarers’ compensation claims have special characteristics: (1) seafarers’ compensation claims are subject to special admiralty law and jurisdiction in some countries; (2) the migrant status of seafarers renders compensation claims subject to various jurisdictions and different choices of applicable law. Therefore, seafarers may need to seek special admiralty and maritime legal service to enforce their rights in a certain jurisdiction, and they may also face complicated international private law issues before they proceed with their compensation claims. Special maritime jurisdiction and complicated choices in terms of applicable law increase the difficulties for seafarers in obtaining their remedies following workplace accidents.