Seafarers' Rights

, by Fitzpatrick, Deirdre; Anderson, Michael

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ISBN: 9780199277520 | 0199277524
Cover: Hardcover
Copyright: 4/7/2005

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Seafarers' Rights provides the reader with a systematic analysis of the rights of seafarers in the context of the international shipping industry, showing how they are made up of a combination of national and international laws, drawn from a number of sources including maritime law, labour lawand international human rights law. Central chapters on these topics are dealt with on an international basis, and complemented by 12 chapters covering key national regimes of particular importance in terms of shipping.The book demonstrates how the seafarer, working in a truly global industry, often falls between the gaps in national and international law. As a result seafarers often have inadequate legal protections. Seafarers' Rights seeks to document the rights and remedies available to seafarers, highlight theproblem areas, examine the legal systems of certain seafaring nations and port states and suggest areas that are ripe for legal reform. Countries covered in the national chapters include Brazil, China, Norway, Russia, South Africa, UK and the US.

List of Authors and Contributors

xxix

Abbreviations

xxxiii

Tables of Cases

xxxv

Tables of Legislation

xli

Tables of Treaties, Conventions and Other Instruments

lix

PART I

Historical Perspectives on Seafarers and the Law

(36)

Early History

(8)

Shipboard Life and Regulations

(14)

State Intervention

(9)

Internationalization

(10)

Flags and the Rise of FOCs

(7)

Seafarers and the Modern Maritime Industry

(6)

Conclusions and Current Trends

Tonnage of FOC fleets and percentage owned by nationals (2002)

(2)

Major countries of supply of seafarers (2000)

(3)

Average per annum mortality of seafarers

(2)

Major actors in the maritime industry

(5)

PART II

International Standards

(44)

Introduction

(3)

Sources of Seafarers' Rights

(24)

ILO standards

(6)

Human rights standards

(6)

IMO standards

(11)

Other sources of international standards

(1)

Seafarers' Rights

(76)

Right to life

(3)

Freedom from forced labour

(3)

Freedom from torture, cruel, inhuman or degrading treatment

(2)

Freedom from discrimination

(4)

Child labour

(4)

Right to a legal remedy and access to justice

(2)

Freedom of association and the right to collective bargaining

(6)

Right to strike

(3)

Right to employment agreement

(2)

Right to free employment services and continuity of employment

(2)

Right to identification documents and shore leave

(2)

Right to safe and healthy working conditions

(13)

Right to fair wages

(6)

Right to reasonable working hours and holidays

(5)

Right to health and medical care

(7)

Right to social security and welfare

(2)

Right to repatriation

(10)

Conclusion

104

Formation, adoption and amendment of international labour standards by the ILO

(7)

Formation, adoption and amendment of international maritime standards by the IMO

(32)

Main international labour, human rights and maritime standards relevant to seafarers

(2)

International Compliance and Enforcement Mechanisms

(48)

Introduction

(3)

Implementing International Standards

(17)

Is the standard law (enforceable versus aspirational international standards)?

(2)

Is the State bound by the international standard?

(6)

Can the international standard be enforced in national courts?

(5)

Which enforcement mechanisms are available and for which parties?

(2)

International Institutions and Enforcement Mechanisms

(55)

United Nations mechanisms

(9)

International Labour Organization

(15)

International Maritime Organization

(6)

Regional systems for human rights enforcement

(16)

Other courts

(9)

Case Study

(1)

Conclusion

(54)

Binding and non-binding international instruments

(6)

Compliance and enforcement mechanisms

(4)

CCPR complaint procedure

(5)

ILO Representation procedure

102

(1)

ILO Complaint procedure

103

(2)

ILO Special procedure

105

(6)

Council of Europe

111

(2)

Example of collective complaint

113

(1)

ESC collective complaint procedure

114

(3)

Inter-American Commission on Human Rights and Inter-American Court of Human Rights

117

(2)

African Commission

119

(5)

Case study: Examples of possible remedies

124

(7)

PART III

Seafarers' Rights at the National Level

131

(38)

Introduction

(3)

Flag State Jurisdiction

(42)

Definition of the flag State

(4)

General nature of flag State jurisdiction

(2)

Duties of the flag State relating to seafarers' rights

(26)

Enforcement of seafarers' rights against the flag State

(7)

Realities of flag State jurisdiction

(3)

Port State Jurisdiction

(14)

Definition of the port State

(1)

Legislative jurisdiction of the port State

(7)

Port State control

(6)

Coastal State Jurisdiction

(10)

Definition of the coastal State

(2)

Continental shelf

(1)

Exclusive economic zone

(1)

Contiguous zone

(1)

Territorial sea

(3)

Internal waters

(1)

Archipelagic waters

(1)

Other States with a Possible Jurisdictional Connection to Implement and/or Enforce International Standards

(7)

Crew supply State

(3)

State of nationality of the shipowner

(1)

Other States through universal jurisdiction

(2)

Obligations of Non-State Actors in the Shipping Industry

(92)

Private Law Regimes Applicable to Seafarers

169

(64)

Introduction

(10)

Private international law issues generally

(3)

Substantive rights and liabilities: overview

(1)

Practical enforcement issues: overview

(6)

Substantive Rights and Liabilities

(68)

Contracts of employment

(26)

Death and personal injury claims

(19)

Miscellaneous rights and liabilities

(23)

Practical Issues

(80)

Introduction

(4)

Jurisdiction and applicable law

(14)

Time bars

(5)

Pre-trial security

102

(13)

Arrest

115

(6)

Maritime liens

121

(17)

Enforcement

138

(21)

Conclusion

159

(70)

PART IV

Introduction to National Chapters

229

(4)

Brazil

233

(24)

Introduction

(4)

Industrial Relations

(10)

Introduction

(1)

Freedom of association

(3)

Right to collective bargaining

(3)

Right to strike

(3)

Pre-Employment Issues

(6)

Certification and documentation

(1)

Minimum age

(1)

Nationality requirements

(1)

Medical certification

(1)

Discrimination protection

(1)

Immigration

(1)

Terms and Conditions of Employment

(13)

Introduction

(1)

Formal aspects of the contract of employment

(1)

Minimum terms and conditions

(10)

Special provisions for second register vessels

(1)

Wages

(6)

Definition of wages

(1)

Minimum wage

(1)

Payment of wages

(1)

Allowances in kind

(1)

Deductions

(1)

Protections under general employment law

(1)

Occupational Health and Safety, Welfare and Social Security

(4)

Health and safety

(1)

Welfare

(1)

Social security

(1)

Compensation for injury and death

(1)

Jurisdiction and Enforcement Issues

(19)

Brazilian court system

(7)

Enforcement

(5)

Jurisdiction and law issues

(7)

Conclusion

(194)

China

257

(24)

Introduction

(6)

Industrial Relations

(6)

Introduction

(1)

Freedom of association

(3)

Right to collective bargaining

(1)

Right to strike

(1)

Pre-Employment Issues

(8)

Certification and documentation

(2)

Minimum age

(1)

Nationality requirements

(1)

Medical certification

(1)

Discrimination protection

(1)

Immigration

(1)

Recruitment

(1)

Terms and Conditions of Employment

(14)

Introduction

(1)

Formal aspects of the contract of employment

(4)

Minimum terms and conditions

(9)

Wages

(6)

Definition of wages

(1)

Minimum wage

(1)

Payment of wages

(2)

Deductions

(1)

Administrative fines

(1)

Occupational Health and Safety, Welfare and Social Security

(10)

Health and safety

(4)

Welfare

(1)

Social security

(2)

Compensation for injury and death

(3)

Jurisdiction and Enforcement Issues

(16)

Introduction

(2)

Maritime court

(2)

Enforcement

(7)

Port State control

(5)

Conclusion

(214)

Cyprus

281

(24)

Introduction

(3)

Industrial Relations

(9)

Introduction

(2)

Freedom of association

(3)

Right to collective bargaining

(1)

Right to strike

(3)

Pre-Employment Issues

(7)

Certification and documentation

(2)

Minimum age

(1)

Medical certification

(2)

Discrimination protection

(1)

Immigration

(1)

Terms and Conditions of Employment

(13)

Introduction

(1)

Formal aspects of the contract of employment

(2)

Minimum terms and conditions

(10)

Wages

(14)

Definition of wages

(1)

Minimum wage

(1)

Merchant shipping legislation

(12)

Occupational Health and Safety, Welfare and Social Security

(14)

Health and safety

(2)

Welfare

(2)

Social security

(1)

Compensation for injury and death

(9)

Jurisdiction and Enforcement Issues

(9)

Introduction

(1)

Enforcement

(6)

Port State control

(2)

Conclusion

(235)

Greece

305

(26)

Introduction

(3)

Industrial Relations

(15)

Freedom of association

(5)

Right to collective bargaining

(3)

Right to strike

(4)

Freedom from forced labour

(3)

Pre-Employment Issues

(12)

Introduction

(3)

Certification and documentation

(3)

Minimum age

(1)

Nationality requirements

(3)

Medical certification

(1)

Discrimination protection

(1)

Terms and Conditions of Employment

(19)

Introduction

(6)

Minimum terms and conditions

(13)

Wages

(6)

Introduction

(4)

Equal pay for foreign crew members

(2)

Occupational Health and Safety, Welfare and Social Security

(12)

Health and safety

(4)

Welfare

(1)

Social security

(3)

Compensation for illness, injury and death

(4)

Jurisdiction and Enforcement Issues

(10)

Jurisdiction of courts

(1)

Appropriate court

(2)

Applicable law

(2)

Time limits

(1)

Actions in rem and in personam

(1)

Arrest

(3)

Conclusion

(253)

Liberia

331

(26)

Introduction

(11)

Historical political perspective

(1)

Historical maritime perspective

(4)

Introduction to legal regime affecting national and foreign seafarers

(6)

Industrial Relations

(8)

Freedom of association

(2)

Right to collective bargaining

(4)

Right to strike

(2)

Pre-Employment Issues

(9)

Introduction

(1)

Certification and documentation

(2)

Minimum age

(2)

Nationality requirements

(1)

Medical certification

(1)

Discrimination protection

(1)

Recognition of foreign certificates

(1)

Terms and Conditions of Employment

(8)

Formal aspects of the contract of employment

(2)

Minimum terms and conditions

(6)

Wages

(8)

Introduction

(1)

Payment of wages

(2)

Maritime lien

(1)

Enforcement of claims

(2)

Forfeiture of wages and penalties

(2)

Occupational Health and Safety, Welfare and Social Security

(7)

Health and safety

(2)

Sickness, personal injury and death of seafarers

(5)

Jurisdiction and Enforcement Issues

(7)

Governmental and judicial perspective

(2)

Extent of jurisdiction

(5)

Conclusion

(298)

Norway

357

(24)

Introduction

(4)

Industrial Relations

(8)

Introduction

(2)

Freedom of association

(1)

Right to collective bargaining

(2)

Right to strike

(2)

Special circumstances concerning NIS registered ships

(1)

Pre-Employment Issues

(8)

Introduction

(1)

Certification and documentation

(1)

Minimum age

(1)

Nationality requirements

(1)

Medical certification

(1)

Mustering

(1)

Discrimination protection

(1)

Immigration

(1)

Terms and Conditions of Employment

(18)

Introduction

(2)

Formal aspects of the contract of employment

(3)

Minimum terms and conditions

(10)

Special circumstances concerning NIS registered ships

(3)

Wages

(8)

Introduction

(1)

Minimum wage

(1)

Calculation of wages, pay statement and payment

(1)

Deductions and additional payments

(1)

Payment in respect of illness and injury

(2)

Guarantees

(2)

Occupational Health and Safety, Welfare and Social Security

(8)

Introduction

(1)

Safety and health

(2)

Welfare

(1)

Social security

(4)

Jurisdiction and Enforcement Issues

(15)

Introduction

(4)

Seafarers' claims

(3)

Jurisdiction and choice of law issues

(4)

Enforcement

(4)

Conclusion

(311)

Panama

381

(26)

Introduction

(6)

Industrial Relations

(7)

Introduction

(1)

Freedom of association

(1)

Right to collective bargaining

(2)

Right to strike

(3)

Pre-Employment Issues

(9)

Introduction

(1)

Certification and documentation

(3)

Minimum age

(1)

Nationality requirements

(1)

Medical certification

(1)

Discrimination protection

(1)

Manning agents

(1)

Terms and Conditions of Employment

(23)

Formal aspects of the contract of employment

(5)

Minimum terms and conditions

(18)

Wages

(9)

Definition of wages

(1)

Minimum wage

(1)

Payment of wages

(1)

Deductions

(2)

Priority of wages

(3)

Equal pay

(1)

Occupational Health and Safety, Welfare and Social Security

(7)

Health and safety

(2)

Welfare

(3)

Social security

(2)

Jurisdiction and Enforcement Issues

(11)

Courts

(4)

Ship arrest

(2)

Order of priority of claims

(2)

Enforcement of foreign judgments

(1)

Statute of limitations

(1)

Port State control

(1)

Conclusion

(334)

Philippines

407

(26)

Introduction

(7)

Industrial Relations

(9)

Introduction

(2)

Freedom of association

(2)

Right to collective bargaining

(3)

Right to strike

(2)

Pre-Employment Issues

(12)

Introduction

(1)

Certification and documentation

(4)

Age requirements

(1)

Discrimination protection

(1)

Manning agents

(1)

Blacklisting

(2)

POEA watchlist

(2)

Terms and Conditions of Employment

(19)

Introduction

(2)

Minimum terms and conditions: provisions of the POEA-SEC 2000

(15)

Foreign crew on Philippine vessels

(1)

Foreign crew on foreign vessels

(1)

Wages

(7)

Filipino crew on Philippine vessels

(2)

Foreign crew on Philippine vessels

(1)

Filipino crew on foreign vessels

(3)

Foreign crew on foreign vessels

(1)

Occupational Health and Safety, Welfare and Social Security

(3)

Health and safety

(1)

Welfare

(1)

Social security

(1)

Jurisdiction and Enforcement Issues

(16)

Proceedings concerning manning agents

(2)

Filipino crew on Philippine or foreign vessels

(11)

Port State control

(3)

Conclusion

(359)

Russia

433

(28)

Introduction

(4)

Industrial Relations

(10)

Introduction

(1)

Freedom of association

(3)

Right to collective bargaining

(2)

Right to strike

(4)

Pre-Employment Issues

(9)

Certification and documentation

(1)

Minimum age

(1)

Nationality requirements

(2)

Medical certification

(1)

Discrimination protection

(1)

Recruitment

(3)

Terms and Conditions of Employment

(14)

Introduction

(1)

Formal aspects of the contract of employment

(3)

Governing law

(1)

Minimum terms and conditions

(9)

Wages

(8)

Component of wages

(2)

Minimum wage

(1)

Payment of wages

(2)

Deductions

(1)

Protection of wages

(2)

Occupational Health and Safety, Welfare and Social Security

(14)

Health and safety and welfare

(5)

Social security

(3)

Compensation for injury and death

(6)

Jurisdiction and Enforcement Issues

(15)

Dispute resolution mechanism

(2)

Courts

(7)

Enforcement of claims

(3)

Enforcement of judgments

(1)

Port State control

(2)

Conclusion

(386)

South Africa

461

(24)

Introduction

(4)

Industrial Relations

(5)

Introduction

(2)

Freedom of association

(1)

Right to collective bargaining

(1)

Right to strike

(1)

Pre-Employment Issues

(6)

Introduction

(1)

Certification and documentation

(2)

Minimum age

(1)

Medical certification

(1)

Discrimination protection

(1)

Terms and Conditions of Employment

(8)

Introduction

(1)

Formal aspects of the contract of employment

(4)

Minimum terms and conditions

(3)

Wages

(10)

Introduction

(1)

Protection under merchant shipping legislation and domestic employment legislation

(5)

Protection under maritime law

(4)

Occupational Health and Safety, Welfare and Social Security

(9)

Health and safety

(3)

Welfare

(2)

Social security

(1)

Compensation for injury and death

(3)

Jurisdiction and Enforcement Issues

(18)

Introduction

(1)

Legal enforcement procedures

(9)

Jurisdiction and law issues

(8)

Conclusion

(424)

United Kingdom

485

(28)

Introduction

(4)

Industrial Relations

(14)

Introduction

(2)

Freedom of association

(4)

Right to collective bargaining

(3)

Right to strike

(5)

Pre-Employment Issues

(7)

Certification and documentation

(2)

Minimum age

(1)

Nationality requirements

(1)

Medical certification

(1)

Discrimination protection

(1)

Immigration

(1)

Terms and Conditions of Employment

(18)

Introduction

(2)

Formal aspects of the contract of employment

(7)

Minimum terms and conditions

(6)

Law and jurisdiction provisions

(3)

Wages

(14)

Introduction

(1)

UK registered vessels under the merchant shipping legislation

(1)

UK registered vessels under the general employment legislation

(6)

Protection under maritime law

(6)

Occupational Health and Safety, Welfare and Social Security

(21)

Health and safety

(7)

Welfare

(2)

Social security

(1)

Compensation for injury and death

(11)

Jurisdiction and Enforcement Issues

(18)

Introduction

(2)

Legal enforcement procedures

(6)

Jurisdiction and law issues

(6)

Port State control and similar enforcement

(4)

Conclusion

(416)

United States

513

(26)

Introduction

(3)

Industrial Relations

(5)

Introduction

(1)

Freedom of association

(1)

Right to collective bargaining

(1)

Right to strike

(1)

Seafarers on foreign flag vessels

(1)

Pre-Employment Issues

(6)

Certification and documentation and minimum age

(1)

Nationality requirements

(1)

Medical certification

(2)

Discrimination protection

(1)

Immigration

(1)

Terms and Conditions of Employment

(8)

Formal aspects of the contract of employment

(2)

Minimum terms and conditions

(5)

Seafarers on foreign flag vessels

(1)

Wages

(7)

Definition of wages

(1)

Minimum wage

(1)

Entitlement to wages

(2)

Payment of wages

(3)

Occupational Health and Safety, Welfare and Social Security

(6)

Health

(1)

Safety

(3)

Welfare and social security

(1)

Enforcement

(1)

Jurisdiction and Enforcement Issues

(29)

Court system

(9)

Applicable law

(2)

Jurisdiction

(8)

Remedies for personal injuries and death

(6)

Procedural defences to proceeding in the US

(4)

Conclusion

(474)

PART V

Reform

539

(24)

Introduction

(5)

Areas and Scope of Feasible Reforms

(8)

Reform Measures

(37)

Comprehensive and effective international standards

(4)

Improved systems of private international law

(3)

Improvements at the national level

(13)

Measures by private actors in the shipping industry

(7)

Mandatory regime of financial security for seafarers' claims

(4)

Improved dispute settlement mechanisms

(6)

Conclusion

(512)

Annex I: International Instruments Relevant to Seafarers' Rights, Status and Details

563

(22)

Annex II: Chart of Ratification of International Instruments for Certain Countries

585

(24)

Index

609

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Seafarers' Rights

Summary

Author Biography

Table of Contents

Supplemental Materials