Aspects of marine labour law
It is a sad truth that human activity will always involve failures and accidents. Shipping is not an exception, no matter how strict safety measures are implemented from time to time. This article combines a very short introduction to the marine-labour accident under Greek law with an attempt to clarify, as possible within the scope of a short introduction, few issues that cause confusion.
The marine-labour accident
The law defines as accident at work, one in which the employee has suffered injury by a violent event in the course of offering his services. The same definition applies to marine-labour accident with the additional attribute that the services are offered by a seafarer on a ship. The said definition however is too narrow to encompass all the cases that fall under the term pursuant to Greek case law. In a more broad definition, as marine-labour accident is 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 includes non-violent causes as it is the aggravation of a pre-existing or unrelated to the work health disease, if in such case, no prompt or proper medical care were provided either due to the negligence of the crew or even because the ship happened to be away from organized medical facilities. A brain stroke or a heart attack may 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 seafarer 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. Also, as employement accident can be considered the ones occuring during the seafarer travelling to or from his ship (e.g. airplance crash during repatriation from the ship etc.)
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 seafarer has suffered due to a labour accident including loss of future income, moral damages, sick salaries, expenses etc. The seafarer is entitled to full compensation only in case that the accident was due to a breach of spefic safety rules or wilful misconduct by the owner or the other crew members. According to Supreme Court (Areios Pagos), such rules 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 diligence generally required in any workplace. In case of death, the close family members of the deceased may claim compensation for moral prejucice as well as the loss of financial support that they were entitled to receive from the deceased in the future.
Limited compensation
Limited compensation (broadly known as compensation under law 551/1915) is awarded on the sole condition that the seafarer has suffered an injury that has affected his ability to work, temporarily or permanently, or resulted in his death, no matter what the cause was. If the accident was due to the negligence of the employee himself, the such compensation may be reduced to the half. As a basis for the calculation of the limited compensation are taken the earnings that the seafarer was receiving in the immediately preceding period of time or 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 seafarer would be equal to the earnings of six years but if the total amount of those earnings exceeds the amount of euros 2,935, then the compensation would be limited to euros 2,935 plus the one-quarter of the total of six years earnings. In case of death, the compensation under law 551/15 will be collected by the close relatives.
Collective Bargaining Agreements
In recent years, one finds more and more often, marine employment contracts that provide for a standard contractual compensation based on international Collective Bargainings Agreements, mainly that of ITF. Such compensation is normally offset against the benefits that the seafarer would be entitled under to Greek law.
Moral damages
In case that the accident is due to negligence of the owner or the other crew members (even if there is no breech of special safety rules, which in any case give rise to a claim for moral damages), the seafarer may claim moral damages in addition to the limited compensation, on the basis of article 932 of Civil Code which provides that: "Irrespective 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 amounts that may be awarded by courts for moral damages. The court will determine the quantum of reparation at its discretion, taking into consideration several factors as it is: the degree of culpability of the parties involved, the financial and social status of litigants (owner and seafarer), the personal or family needs of the injured or deceased, the severity of the injury, the impact of the same on the capability for work, the age of the seafarer etc.
Jurisdiction
Shipowners have tried to limit their liability basically 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, a large number of claims are filed by foreign seafarers before Greek courts and Greek shipowners appear sometimes puzzled at how this is legally possible.
As a general rule, a court has jurisdiction to hear a case if the defendant is domiciled in its district. If an off-shore shipowning company is involved, the Greek court will apply the criterion of the effective seat of the company, namely where the main business (management etc.) is carried out, since it is common knowledge that the registered address of an off-shore company (in Liberia, Marshall Islands etc) is almost always fictitious. If therefore it is proved that the managing of a ship is conducted from Greece, the Greek Court will most probably assert its jurisdiction on the case.
It should further be noted that according to EU Regulation 1215/2012, the injured seafarer or his relatives in case of death, is 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 it has not been addressed in a clear and uniform way by the Greek jurisprudence. 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 performance of such contract. In a dispute with foreign elements, the applicable law will be sought therefore in the provisions of EU Regulation 593/2008, which has in may ways incorporated the Rome Convention of 1980 on the applicable law on contractual relationships.
In accord with the said EU Regualtion, 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 8 of the Regualation 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 Regulation: (a) the law of the country in which the employee habitually carries out his work in performance of the contract; (b) where the law applicable can not be determined pusuant to the previous paragraph, 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 in order to establish a connection of an employment contract with a country are amongst others the flag of the ship, the residence of the shipowner, the nationality of the seafarer and the shipowner, the place where the seafarer was enlisted etc. However, the said criteria are not applied in a quantitative but in a qualitative way and therefore even one of them can suffice at the discretion of the Court to establish the necessary close connection. In accord with this, a number of judicial precedents have found that in the absence of other strong connections, the fact that the shipowner has his effective seat in Greece suffices to establish application of Greek law, while the flag of the ship may not be significant, if it is a flag of convenience.
Moreover, the said Regulation sets a further safeguard for the employee. According to article 9, 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 seafarer at least the protection provided for by certain provisions of Greek labour law (a major part of labour law is considered mandatory), if the same are more favourable to the employee's interests. In many ways therefore, there will be a direct or indirect application of Greek law, even in cases where connections with foreign law seem to prevail, as it is the usual case of a claim filed by a non-Greek seafarer 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 foreign seafarers from developing countries to bring their claims to Greek courts as they expect higher amounts of compensation than what their national courts would award. This phenomenon has been criticized by shipowning interests as forum shopping.
The present article should not be regarded as a substitute for asking professional advice and the author will not accept any liability for any information provided or views expressed. Copyrights reserved.