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Provisions for Seafarers to get Compensation in cases of Death and Injury

Every now and then we get to hear in the news that one or two Seafarers got injured or died whilst doing some work and that the Employer is denying for paying any Compensation to the Seafarer or to his Family. Most of the Family members of the Seafarers are not aware as to where to approach for getting appropriate remedies and under what provisions of Law. So, the important question which arises are:
  • What remedies are available to a Seafarer who got injured while doing some work in his Employment?
  • What remedies are available to the families of the Seafarer who died during the course of Employment?
  • What laws are applicable against the Employer?
  • What is the amount of Compensation payable to the Seafarer or to the Family of the Seafarer in the event of his injury or death, during the course of his Employment?
  • And which Court has the jurisdiction to try these matters?
  • What are the remedies available to the Seafarer and to his family in the event of an Injury or Death of the Seafarer, during the course of his Employment?

The law relating in the event of a personal injury suffered by a Seafarer, in the event of his Employment is very clear in this aspect. Section 346 of the Merchant Shipping Act, 1958 reads as follows:

Section 346. Damages for personal injury:

  1. Whenever loss of life or personal injuries are suffered by any person on board a ship owing to the fault of that ship and of any other ship or ships, the liability of the owners of the ships concerned shall be joint and several.
     
  2. Nothing in this section shall be construed as depriving any person of any right of defence on which, independently of this section, he might have relied in an action brought against him by the person injured, or any person entitled to sue in respect of such loss of life, or shall affect the right of any person to limit his liability in cases to which this section relates in the manner provided by law.”
A perusal of the said section clearly states that it is the liability of the owner of the ship i.e. the Employer's, to pay compensation to the injured person or to his families, in the event that a person on a board of a ship suffers any injury or dies in the course of his Employment. It is a well-established law that the Employer of a Company will be held liable in the event that an Employee gets injured or dies in an accident, during the course of Employment. The Employer cannot escape the liability to pay compensation amount to the injured person even if he is able to prove that due diligence was given to the safety of the Employees'.

Also, as per the Maritime Convention Law, 2006 it is the liability of the Shipowners to ensure that Seafarers are protected from the financial consequences of sickness, injury or death occurring in connection with their Employment. Shipowners shall be liable to bear the costs for Seafarers working on their ships in respect of sickness and injury of the Seafarers occurring between the date of commencing duty and the date upon which they are deemed duly repatriated, or arising from their employment between those dates.

The Shipowners shall provide financial security to assure Compensation in the event of the death or long-term disability of Seafarers due to an occupational injury, illness or hazard, as set out in national law, the Seafarers' Employment Agreement or Collective Agreement respectively.

The Shipowners shall be liable to defray the expense of medical care, including medical treatment and the supply of the necessary medicines and therapeutic appliances, and board and lodging away from home until the sick or injured seafarer has recovered, or until the sickness or incapacity has been declared of a permanent character and shall also bear all the costs for the burial and repartition of the body of the Seafarer.

Which court would have jurisdiction over a claim for compensation by a seafarer who was injured or killed?

A Seafarer in the event of an injury or his Family in the event of his death could approach the following Courts and Authorities for a claim of Compensation:
  1. High Court by filing a Writ Petition;
  2. Admiralty Jurisdiction of the High Court;
  3. Commissioner under the Employees' Compensation Act, 1923 and;
  4. Civil Court
The injured seafarer or the family of the deceased seafarer can file a claim before the Commissioner constituted under the ECA, 1923 within whose jurisdiction the seafarer resides, or the Commissioner constituted under the ECA, 1923 within whose jurisdiction the registered office of the shipowner/manager is located, or the Commissioner constituted under the ECA, 1923 where the accident took place which resulted in the injury or death of the seafarer.

On an Indian flagged vessel, any claim under the ECA will have to be made before a Commissioner constituted under the ECA and a civil court will have no jurisdiction to entertain the claim if the said claim has been already filed before the Commissioner under the ECA, 1923.

The injured seafarer or family of the deceased seafarer would have a maritime lien over the vessel and can arrest the vessel at any point of time by invoking the Admiralty Jurisdiction of a High Court of a coastal state. The seafarer or family of the deceased seafarer can also arrest any other vessel which is owned by the party liable for the claim and in certain limited circumstances arrest a vessel beneficially owned by the party liable for the maritime claim.

The Bombay High Court and Calcutta High Court can exercise Admiralty Jurisdiction throughout the territorial waters of India. The injured seafarer or family members of the deceased seafarer can file a criminal complaint with the police within whose jurisdiction the maritime casualty took place.

What is the time limit for bringing a claim after the occurrence of an incident?

  1. Claims for compensation can be brought before the Commissioner constituted under the ECA within Two years of occurrence of the accident or within Two years from the date of the death of the employee.
  2. If a suit is instituted under the Fatal Accidents Act, 1855 the limitation period is Two years from the date of the death of the person.
  3. The limitation period stipulated for filing a general civil suit is Three years.

What is the basis for recovery of compensation for personal injury or death claims under the Employees' Compensation Act, 1923?

Indian law recognizes the rights of an injured seafarer to claim compensation for injury and family members of a deceased seafarer to claim compensation for the death of the seafarer. The Employees' Compensation Act, 1923 (‘ECA') is legislation of a general nature, which allows workmen/employees to claim compensation for death and personal injury of seafarers.

The ECA expressly stipulates that ‘master, seaman or other members of the crew of a ship would be considered to be an employee for the purposes of the ECA. For the purpose of ease and convenience, Section 3 of The Employees' Compensation Act, 1923 is reproduced hereunder:

Section 3. Employer' s liability for compensation:

  1. If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
    Provided that the employer shall not be so liable:
    1. in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
    2. in respect of any injury, not resulting in death, caused by an accident which is directly attributable to:
      1. the workman having been at the time thereof under the influence of drink or drugs, or
      2. the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or
      3. the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.
A perusal of the aforementioned section means that, Section 3 of the Employees' Compensation Act, 1923 imposes strict liability upon the employer/shipowner/manager to pay compensation for the death or personal injury of the employee if the death or injury is caused ‘by accident arising out of and in the course of his employment.'

The only exception to the strict liability would arise in cases in which:

  1. The seafarer had been under the influence of alcohol or drugs at the time of his employment; or
  2. If the seafarer willfully disobeyed an order given or a rule that had been framed for the security of the seafarer; or
  3. If the seafarer willfully removed or disregarded any safety guard or other device which he knew had been provided for his safety.
In all other circumstances, the employer/shipowner/manager will be strictly liable for injury or death even if the employer/shipowner/manager can demonstrate that he exercised due diligence to ensure the safety of the seafarer.

Section 4 of the Employees' Compensation Act, 1923 provides that:

  1. Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:
    1. where death results from the injury - an amount equal to Fifty per cent of the monthly wages of the Deceased Employee multiplied by the relevant factor; or an amount of One Lakh and Twenty Thousand Rupees, whichever is more;
    2. where Permanent Total Disablement results from the injury - an amount equal to Sixty per cent. of the monthly wages of the injured employee multiplied by the relevant factor; One Lakh and Twenty Thousand Rupees, whichever is more;
Shall be computed to the Seafarer or to his Family in the event of an injury or death, arising during the course of the Employment.

Functions and Responsibilities of the Recruitment and Placement Services:
There are many cases where agents acting under the directions of the Recruiting Agency, Company or on their own, asks for indirect money for providing placements and giving various other job opportunities. The said acts are not only against the provisions of the Merchant Shipping (Recruitment and Placement of Seafarers) Rules, 2016 but are also illegal in nature and attracts strict punishments.

Section 5. Responsibilities of a recruitment and placement service:

  1. The recruitment and placement service provider including the deemed Recruitment and Placement Services shall:
    1. ensure, as far as practicable, that the ship owner has the means to protect such seafarers from being stranded in a port; and in such an event shall make adequate provisions for the repatriation of a stranded seafarer along with his maintenance and required emergency medical assistance prior to repatriation and the transportation of the mortal remains of a seafarer in the event of his death, and it shall also furnish a bank guarantee to cover the cost of repatriation of the seafarer in an event of his abandonment and being stranded;
    2. ensure that any incident or casualty on-board causing injury (excluding minor injuries) or death, disappearance, loss overboard or homicide by or of an Indian National, is reported to the Director-General, at the earliest and not later than twenty-four hours of the receipt of such information;
    3. endeavour that the death compensation or disability compensation are paid by the ship owner without undue delay;
       
  2. If the seafarer suffers death or injury, it shall be reported in Form-II in online mode or paper form by the recruitment and placement service to the Director, or any other person authorised by Director General, within forty-eight hours of the incident.

Section 65 of the Merchant Shipping Bill, 2016 states that:

Section 65. It shall be the business of the seafarer's employment office:
  1. to issue licence, to regulate and control the recruitment and placement service and to:
    1. ensure that no fees or other charges for recruitment and placement of seafarers are borne directly or indirectly or in whole or in part, by the seafarers;
    2. ensure that adequate machinery and procedures exists for the investigation, if necessary, of complaints concerning the activities of recruitment and placement services;
  2. to perform such other functions and duties as may be prescribed.

Conclusion

The Merchant Shipping Act, 1958, Employees' Compensation Act, 1923 and the Merchant Shipping (Recruitment and Placement of Seafarers) Rules, 2016 are crystal clear on the fact that in the event of death or an injury sustained by a Seafarer, during the course of Employment, the Employer will be directly held liable for paying Compensation amount to the Family of the Seafarer in case of death and to the Seafarer himself in the event of an injury, arising out of Employment.

Also, that it is the duty of the Recruitment and Placement Services to ensure that no fees are paid by the Seafarer to the Agency by any illegal means and to prohibit such actions and to take strict actions against the culprits.

Written By: Aditya Rai - Adv.Balasaheb Apte College of Law
Email: [email protected]

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