Rules of the Road: by Capt. Jake DesVergers
We’re going through some tough times. At the writing of this article, the estimated peak surge for the coronavirus pandemic in the United States is approximately two weeks away. It has already been a daunting task for many yachts and the businesses that supply them. It has been especially difficult for those yachts that have been downsized or laid-up.
The last time that we saw such a large decrease in yacht usage was during the Great Recession financial crisis of 2007-2009.
In the unfortunate situation that an owner decides a yacht’s crew must be downsized, it is important for the owner, captain and crew to remember certain requirements. In particular, when working on yachts that require crew agreements, the contents of those contracts are critical.
For most non-U.S.-flagged yachts, especially those that charter, the crew will be employed under a Seafarer Employment Agreement (SEA) or similar document. It is within this document that the exact terms for termination will be outlined. Specific details may differ based upon the flag-state of the yacht, such as national holidays or points of contact, but in general, the requirements are nearly the same.
In most yacht crew agreements, unlike on merchant ships, there is not an expiration date. On a typical merchant ship, a crew member is hired for a time-definitive contract. That can range from just a few days to a maximum of 11 months.
In contrast, yacht crew are typically hired indefinitely until either party decides to terminate employment. In those situations, the minimum notice period outlined in the contract must be adhered to. The standard notice period in yachting is a minimum of two weeks. Senior crew members, such as the captain or chief engineer, may have as much as four weeks’ notice. However, other than in certain instances of gross negligence, a crew member cannot be terminated with less than seven days’ notice.
Each crew member is entitled to wages up to the end of the notice period. If an owner determines that crew shall leave the yacht before the end of the notice period, wages shall include that period of time. For example, if crew are told that the yacht is downsizing and all crew must leave within 24 hours, the order shall be complied. If upon reviewing your contract it provides for a notice period of two weeks, then the two weeks of wages are also owed, even though the crew will technically not be on board.
Any unused and earned vacation shall also be paid. However, gratuities from charter guests, unless specifically stated in the contract, are discretionary funds and not guaranteed.
This is a tricky one, in particular for those crew members that are not citizens or legal residents of the country where the yacht is to be on an extended dock. As per the SEA, the owner must repatriate a crew member to his country of residence or other mutually accepted location. With the difficulty being experienced with air travel and border closures, it does not leave many options available. Plans must be clearly outlined to ensure compliance with this important part of the crew agreement.
It is not permissible for crew to be kicked ashore and left to fend for themselves. The SEA does not end until the crew member has safely reached the location stated in the agreement.
In the unfortunate instance when assistance is needed because a situation remains unresolved, the flag administration can be contacted. When doing so, it is extremely important for the crew member to do so with a level of formality, professionalism and accuracy. The flag administration will have a procedure that must be followed and a specific point of contact. If there is not a specific form to complete, crew need to submit the following information, usually in writing:
- Name of the yacht
- Owner’s address and contact info
- Name and contact info for the captain
- Details of the complaint
- Action taken to date to resolve the complaint
When submitting a complaint to the flag administration, it is important to remember that there is a process to be followed. Do not expect immediate action or results. As with any report, the accusation must be investigated. This will involve a review of the receiving complaint and subsequent interview/research with the accused party.
In these difficult times, please, everyone, do their best to stay safe and healthy. We will patiently wait for things to return to normal and everyone gets back on the water.
Capt. Jake DesVergers serves as chief surveyor for the International Yacht Bureau (IYB), a recognized organization that provides flag-state inspection services to private and commercial yachts on behalf of several flag-state administrations. A deck officer graduate of the US Merchant Marine Academy at Kings Point, he previously sailed as master on merchant ships, acted as designated person for a shipping company, and served as regional manager for an international classification society. Contact him at 954-596-2728 or www.yachtbureau.org.
Update from the Author: We are slowly restarting surveys on yachts. Unfortunately, during the past few months, we have been dealing with a lot of crew contract issues. Yachts were being laid-up and crew terminated with little or no notice. Repatriation was a major headache, as international travel was near impossible. We are hoping to see that phase out as the summer season approaches and yachts are reactivated.