Rules of the Road: by Capt. Jake DesVergers
As the world slowly reopens from the pandemic shutdown, a large number of crew sailing on both merchant ships and yachts find themselves far away from home. Many have worked beyond the validity of their employment agreement or visa. However, the options for transportation are few or nonexistent.
Thankfully on the yachting side of the industry, the numbers of crew affected have been low. In contrast to the merchant ship side, especially within the cruise line segment, we have seen tens of thousands of seafarers unable to repatriate. The main cause being an inability for crew to land in a particular country. Nearly the entire world was shut down with most locations still imposing strict limitations on entry.
Repatriation is the process of returning a person to his/her place of origin or citizenship. In the maritime industry, this involves the transportation of a seafarer from the vessel’s location to his/her home country. In yachting, that return can be to any number of locations. The predominant areas being the United States, Europe, South Africa, Australia, and New Zealand.
Under the requirements of the Maritime Labour Convention (MLC), those yachts that are normally engaged in trade (i.e., commercial charter yachts) must have a Seafarer Employment Agreement (SEA) with each member of the crew. Within the SEA, the level of repatriation entitled to the seafarer must be documented.
In Regulation 2.5 of the MLC, repatriation is discussed at length. However, as with any international regulation, there is a certain amount of interpretation left to the parties involved. Here are some of the most common questions being asked by yacht owners, captains, and crew.
What is the entitlement to repatriation?
MLC provides for the basic right of seafarers to repatriation. The basic parameters for repatriation, including the period before an entitlement arises, must be “less than 12 months.” However, the specific entitlements are a matter for Flag State implementation through provisions in its national laws and regulations.
Can a crew member be charged for repatriation?
MLC prohibits owners from requiring that seafarers make an advance payment toward the cost of repatriation at the beginning of their employment. It also prohibits recovering the cost of repatriation from the seafarers’ wages or other entitlements except where the seafarer has been found, in accordance with national laws or regulations, to be in serious default of the seafarer’s employment obligations.
While it was attempted in one specific situation, the COVID-19 pandemic is not a valid reason for crew to be removed from a vessel and left to their own for housing, sustenance, and repatriation.
Can a crew member decide not to exercise a right to be repatriated?
MLC requires each Flag State to prescribe, through its national laws and regulations, a number of matters. This includes “the maximum duration of service periods on board following which a seafarer is entitled to repatriation – such periods to be less than 12 months.” Unless a Flag State law prohibits it, a seafarer could choose not to exercise this entitlement when it arises. Provided that the owner and seafarer are in mutual agreement, any alternatives may be used. For example, a crew member plans to holiday in Brazil versus returning home to Australia. In agreement with the owner, transportation to an alternative location may be provided.
Can a crew member agree to be paid instead of actually taking paid annual leave?
MLC states that any agreement to forgo the minimum annual leave with pay must be prohibited. In yachting, there are instances where this can be considered with agreement by the Flag State. It is mostly seen where yachts that have extended schedules at the dock or a “weekends off” routine. This process was and continues to be granted in many situations due to the COVID-19 pandemic.
With the total closing of many borders and the reduced availability of airline flights, many crew have opted to extend their SEAs until such time as conditions improve.
Does the requirement for paid annual leave mean that crew cannot be on board for more than 11 months at a time?
Yes. The concept of paid annual leave is assumed to be an uninterrupted period that is taken annually. Therefore, the maximum period for service on board a yacht without leave would be 11 months. As mentioned above, this requirement has been waived in many cases due to ongoing pandemic. However, Flag States are monitoring this closely. The pandemic cannot be used as an excuse to deny repatriation or as an attempt to wrongfully extend a seafarer’s employment agreement.
As one can imagine, these unprecedented times are requiring significant patience and creative problem-solving. We all must be prepared for quick and very short notice changes to existing employment and travel regulations. As time progresses, we should hopefully see some normalcy as we remember it. Crew will rotate home for vacation and return safely to onboard employment. Going to sea for a living will not be ending in the near future.
Capt. Jake DesVergers currently 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.