The marine-labour accident

The law defines as a labour accident any such that an employee has suffered by a violent event in the course of offering his services. The same definition applies to marine-labour accident with the further qualification that the services are offered by a seaman on a ship. The said definition however is too narrow to encompass all the cases that fall under the term. In a more appropriate definition, as marine-labour accident should be considered any death, injury or disease that is caused by or is otherwise connected with the work of a seaman on a ship. The last definition has the advantage to include non-violent causes as well as the aggravation of a pre-existing or unrelated to the work health disease, if no proper medical care was promptly offered either due to negligence of the crew or because the ship was far away from any medical facilities. A brain stroke or a heart attack can be considered for example as marine-labour accident if it can be shown that it occurred under extraordinary or pressing work conditions or it was not promptly treated. On the contrary, the diagnosis of a cancer while the seaman was on board can not be regarded as a marine-labour accident since it is reasonably due to inherent or long-term causes that most probably are not related to the work.

Greek law provides for two kinds of compensation (a) full compensation and (b) limited compensation:

Full Compensation

Full compensation includes recovery of any loss or damage that the seaman has suffered due to a labour accident including loss of future income, moral prejudice, disease salaries, expenses etc. The employee is entitled to full compensation only in case that the incident was due to a breach of specific safety regulations or willful misconduct by the employer or his other co-employees. According to Supreme Court (Areios Pagos), such regulations must be specific in the sense that they define specific measures and procedures for the protection of employees and they do not qualify as such any measures that are dictated by common sense or the general diligence required in workplaces. In case of death, the family members of the deaceased may also be awarded a compensation for the loss of support that they would expect to receive from the deceased in the years to come.

Limited compensation
Limited compensation (broadly known as compensation under law 551/15) is awarded on the sole condition that the seaman has suffered a labour accident, no matter what was the cause. If the accident was due to the negligence of the employee, the relevant compensation may be reduced down to the half. As a basis for the calculation of the limited compensation is taken the salary that the seaman was receiving at the time or the the minimum salary provided for by the current Collective Labour Agreement, whichever is higher.

To give an example in case of a total and permanent disability, the compensation of seaman would be equal to the salaries of six years but if the total amount of those salaries exceeds the amount of euros 2,935, then the compensation would be restricted to euros 2,935 plus the one-quarter of the aggregate of six years salaries. In case of death, the compensation under law 551/15 will be collected by the close relatives of the deceased seaman.

Reparation for moral prejudice
In case that the incident is due to negligence of the employer or his other co-employees (but not to breech of specific safety regulations which would entitle the seaman to full compensation), the seaman may be entitled to moral damages in addition to the limited compensation on the basis of article 932 of Civil Code which provides that: "Independently of the compensation for pecuniary prejudice, the Court may upon the occurrence of an unlawful act, allot a reasonable amount of money to be determined in the Court's appreciation as reparation of moral prejudice ..... In the case of death of a person such monetary reparation may be allotted to the victim's family on account of moral suffering".

There are no standard rules or limits to the amount that it is awarded by a court for moral damages. The court determines the quantum of reparation at its discretion taking into consideration several factors as it is: the degree of liability of each party, the financial and social status of the parties, the personal or family needs of the injured or deceased, the severity of the injury and the impact of the same on the capability of seaman to work in the future, the age of the seaman etc.

Shipowners have tried to limit their liability amongst others by owning their ships through off-shore companies and inserting in the employment contracts clauses for the application of favourable laws and jurisdictions. That is true for Greek owners as well. Nevertheless, quite a number of claims are filed by foreign seamen before Greek courts and Greek shipowners appear sometimes puzzled at how this is possible.

As a general rule, a court is competent to hear an action when the defendant is domiciled at its venue. If an off-shore shipowning company is involved, the Greek court will apply the criterion of the actual seat of the company, namely where the principal business activity (management etc.) is actually carried out, since it is common knowledge that the registered address of off-shore companies (in Liberia, Marshall Islands etc) is almost always fictitious. It will suffice therefore for a Greek court to establish that the managerial off-shore company is operating an office in Greece in order to accept that the ship is actually owned by Greek interests that are actually situated in Greece and therefore that it will assert jurisdiction on the case.

It should further be noted that according to EU Regulation 44/2001, the injured seaman or his relatives in case of death, are entitled to choose between more jurisdictions (as it is the courts of the place where the employee offered his services that being in case of a ship the courts of the State whose flag the ship was flying) and such right can not be restricted by any contractual agreements unless such agreements were entered into after the accident or provide for a more favourable for the employee jurisdiction.

Applicable law
The issue of applicable law is also one of the most controversial and complicated and it has not been addressed in a clear and uniform way by case law. It is generally accepted that the law that applies to a labour accident should be the same which governs the employment contract since the accident has occurred in the the performance of such contract. In a dispute with foreign elements, the applicable law will be sought therefore in the provisions of Rome Convention of 1980 on the applicable law on contractual relationships.

In accord with the said Convention, the Greek judge will first investigate whether the parties to the employment contract have chosen a law as they are in principle free to do. However, the article 6 of the said Convention stipulates that even in a case that a choice of law has been made, the employee shall not be deprived of the protection afforded to him by the mandatory rules of the law that would be applicable in the absence of a choice.

The applicable law in the absence of a choice would be according to the Convention:
(a) the law of the country in which the employee habitually carries out his work in performance of the contract; or
(b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated; unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the law of that country will apply.

Elements that are considered to establish a connection of an employment contract with a country are amongst others the flag of the ship, the nationality of the seaman and the shipowner, the place where the seaman was recruited, the actual residence of the shipowner etc. However, the said criteria are not applied in a quantitative but in a qualitative way and therefore even one of them can be found against others to establish, at the discretion of the judge, the necessary close connection. In accord with this, a number of judicial precedents have found that the fact that the shipowner has his actual residence in Greece is sufficient for the application of Greek law, while the flag of the ship may not matter, if it is considered a flag of convenience.

Apart from the above restriction, the said Convention sets a further safeguard for the employee. According to article 7, the judge is not prevented to apply the mandatory rules of his country (lex fori) irrespective of which law is otherwise applicable. That practically means that the Greek judge will afford to the seaman at least the protection provided for by certain rules of Greek labour law (a major part of labour law is considered to be mandatory), especially if the same are more favourable to the employee.

In many ways therefore, there will be a direct or indirect application of Greek law provisions even to cases where foreign elements seem to prevail, as it is the usual case of a a claim filed by a non-Greek seaman who was engaged on a ship with foreign flag belonging to an off-shore company but operated from Greece.

The interpretation and application of international and domestic labour law by the Greek courts as outlined above, has encouraged seamen coming from developing countries to file their claims in Greece as they expect higher amounts of compensation than what their domestic courts would award. That phenomenon has been criticized by shipowning interests as forum shopping.

By Kostas Spaidiotis

The present article should not be regarded as a substitute for professional advice and the author will not accept any liability for any information provided or views expressed. Copyrights reserved.