Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Shipowners' Liability (Sick and Injured Seamen) Convention, 1936 (No. 55) - United States of America (Ratification: 1938)

Article 1, paragraph 1, of the Convention, read in conjunction with Article 11. Scope of application and equality of treatment for all seafarers irrespective of nationality, domicile or race. In its previous comments, the Committee asked the Government to take the necessary measures to amend section 688(b) of the Jones Act which prohibits non-resident foreign seafarers from claiming injury or death benefits if they are employed in an enterprise engaged in the exploration, development, or production of offshore mineral or energy resources in the territorial waters or waters overlaying the continental shelf of a foreign nation, and when they or their dependants have a remedy available under the laws of the nation asserting jurisdiction over the area in which the incident occurred, or under the laws of either the seafarer’s country of nationality or residence.

The Government states in its report that, since the United States believes that section 688(b) of the Jones Act, as amended in 1982, is in compliance with Convention No. 55, there are currently no plans to amend this provision of the Jones Act. The Government explains that the 1982 amendment to the Jones Act recognized the practical reality that offshore oil worker activities related to exploration, development or production of mineral or energy resources generally take place without the worker leaving his or her own national waters. The Government recognizes that the amendment creates a difference of treatment for foreign nationals who are not residents of the United States, but considers this difference justified since non-resident foreign seafarers may pursue remedies in more appropriate forums.

In accordance with Article 11 of the Convention, however, all seafarers, irrespective of nationality, domicile or race, must enjoy equality of treatment. As the Convention does not allow for the right to protection to be made subject to any prior condition, non-resident foreign seafarers should be able to claim for compensation in the same way as national or resident seafarers.

A distinction might be drawn between different activities encompassed by the terms of section 688(b) of the Jones Act: “exploration, development or production of offshore mineral or energy resources”. According to the Act, such activities may include drilling, mapping, surveying, diving, pipelaying, maintaining, repairing, constructing, or transporting supplies, equipment or personnel. While the application of the Convention could be limited with regard to drilling activities, as drilling platforms are not ordinarily engaged in maritime navigation, the Convention remains fully applicable with regard to the other activities, and equality of treatment is to be ensured.

The Committee hopes that the Government will reconsider its position on this matter, and take the necessary measures to amend section 688(b), possibly taking into account the distinction between drilling activities and other activities, so as to ensure that all foreign seafarers employed on board any vessel, registered in the United States and ordinarily engaged in maritime navigation, benefit without any prior condition from the protection accorded by the Convention. It asks the Government to supply in its next report information on any progress made in this respect.