Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Article 1(1) of the Convention, read in conjunction with Articles 2, 9 and 11. Scope of application and equality of treatment for all seafarers. The Committee has been commenting for many years on the need to amend section 688(b) of the Jones Act in line with the requirements of Article 11 of the Convention, which provides that national laws or regulations relating to sickness or injury benefits have to be so interpreted and enforced so as to ensure equality of treatment to all seafarers irrespective of nationality, domicile or race. The Committee notes the Government’s renewed statement that the mere creation of different classes (i.e. foreign nationals as opposed to United States citizens or resident aliens) does not violate the Convention and that foreign seafarers not domiciled in the United States may have remedies available in their home countries or host nations. The Committee further notes the Government’s interpretation of section 688(b) of the Jones Act, according to which foreign citizens cannot maintain an action under that Act if they are employed by an enterprise engaged in exploration, development or production of offshore mineral or energy resources, in the territorial waters of a foreign nation and have a remedy available to them under the laws of the country where the injury occurred or their place of citizenship.

Noting that there has been no progress since the Committee first raised this point more than 20 years ago, the Committee is obliged to recall that, while the application of the Convention could possibly 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 such other activities as transporting supplies, equipment or personnel. Due to the specificity of maritime employment and the uncertainties of the seafarers’ access to legal remedies due to their constant movement, Article 2 imposes the primary liability for the payment of sickness and injury benefits on the shipowner. In case of the shipowner’s failure to pay, section 688(a) of the Jones Act allows any seafarer who is a United States citizen or resident alien to sue for damages arising from personal injury suffered in the course of employment. Section 688(b) imposes on seafarers who are neither United States citizens nor resident aliens, an additional precondition, bearing also the burden of proof, that their home countries or the host countries in the territorial waters of which their ships navigate have no available remedy. In the Committee’s view, having to prove that the social insurance institutions of the seafarer’s home or host country could not provide remedy, constitutes an additional threshold for foreign non-resident seafarers and is therefore inconsistent with Article 11 of the Convention.

The Committee wishes to refer, in this regard, to the preparatory work that eventually led to the adoption of Article 11, which shows that the drafters’ intention was to include an explicit affirmation of the principle of equality of treatment in view of the fact that, in practice, non-resident seafarers were not able to receive the same benefits as national or foreign resident seafarers employed on the same ships (see ILC, 1936, 22nd Session, Record of Proceedings, page 257). Despite objections to the effect that, where an exception was not made in respect of foreign workers, equality of treatment was presumed and it was therefore unnecessary to insert a special provision, Article 11 was put to a vote and adopted. In addition, the Committee draws the Government’s attention to the fact that an equally comprehensive definition of the term “seafarer” is contained in Article II(1)(f) of the Maritime Labour Convention, 2006 (MLC, 2006), to mean “any person who is employed or engaged or works in any capacity on board a ship”. Moreover, it is also clear from Article 9 that the member State concerned has to secure rapid and inexpensive settlement of disputes concerning the shipowner’s liability. It is the member State’s responsibility to establish such a system. By requiring non-nationals to pursue their claims in the host or home State, it is not securing the settlement of their disputes, let alone securing that the process is rapid and inexpensive. The Committee therefore hopes that the Government will take the necessary measures in order to amend section 688(b) of the Jones Act, possibly taking into account the distinction between drilling and other activities, so as to ensure that all foreign non-resident 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.

Finally, the Committee takes this opportunity to recall that the Convention, as well as 36 other international maritime labour Conventions, are revised by the MLC, 2006. The main provisions of the Convention are now reflected in Regulation 4.2 and the corresponding Code of the MLC, 2006. The Committee considers, therefore, that compliance with the Convention will facilitate the implementation of the respective provisions of the MLC, 2006. Noting that the Government has initiated the review and consultation process with a view to the future ratification of the MLC, 2006, the Committee requests the Government to keep the Office informed of any further developments with respect to the possible ratification of the MLC, 2006.

[The Government is asked to reply in detail to the present comments in 2013.]