Seafarers’ Compensation: Time is of the essence!

By Mateusz Romowicz, Paweł Zboina

Loss of life, bodily injury or health disorder of a ship’s crew member are typical cases that burden the shipowner with civil liability. Claims submitted to the shipowner in this respect are usually expressed in amounts specified in the contract – so-called contractual compensation.

In many cases, seafarers are practically deprived of the possibility of pursuing claims in the above-mentioned areas, e.g. in connection with the occurrence of permanent damage to their health, the sole cause of which was an accident on board a ship, because they do not have the necessary legal knowledge and documentation, thanks to which they could settle their case quickly and amicably. Moreover, practice shows that in some cases seafarers are deliberately misled by entities obliged to pay the above-mentioned compensation.

If an accident occurs on a ship, a seafarer or his/her closest relatives should first ensure that a protocol or post-accident report is prepared, a copy of which, certified by the captain, should also be received by the injured seafarer or his/her closest family.

Then, the key from the perspective of the interests of the injured seafarer is to collect comprehensive employment documentation. Here we mean the contract (Seafarers Employment Agreement), but also other documents that may constitute annexes to the contract, developing contractual provisions. Such documents are primarily: Collective Bargaining Agreement, Terms and Conditions of Employment. It is these documents that constitute a kind of basis for determining the basis and possible amount of a claim for an accident at work. This is important because, in the experience of the Law Firm, it results that very often a claim resulting from an accident at work, resulting in permanent damage to health, is treated differently by the shipowner and its insurer, and a claim resulting in permanent inability to continue working at sea, or finally a claim for compensation based on the loss of life of the seafarer, is treated differently.

What is extremely important, the above documents also very often indicate the applicable law, in the context of pursuing appropriate claims. As we have indicated in many of our previous publications, the rule is that in the case of seafaring contracts, and therefore in relation to any claims in this context, Polish law or the jurisdiction of Polish courts will not apply. This means nothing less than that determining the applicable law on the basis of which it will be justified to direct appropriate compensation claims will be the next basic step in the context of initiating the procedure aimed at obtaining the appropriate amount of compensation for an accident at work.

Time is very important – limitation period
The issue of the possible passage of time between the accident and the seafarer’s commencement of the journey leading to the enforcement of compensation cannot be left without comment.

The greatest risk in this respect is undoubtedly related to the limitation period, after which the pursuit of potential claims may be completely excluded. In order to determine it, it is necessary to refer to the provisions of the applicable law applicable to a given case. Usually, the limitation period is set at three years from the date of the event (as, among others, in Greek law). However, in this respect too, it is not possible to speak of a rule, as evidenced by the shorter limitation periods applicable, for example, under Panamanian law – in many cases it will be only one year.

It is also worth remembering that starting negotiations with the relevant entities regarding compensation in connection with the seafarer’s accident does not interrupt or suspend the limitation period in any way. Consequently, the claim that is the subject of the negotiations may become time-barred when the statutory time limits have expired (usually 3 years).

Time is of the essence – securing claims
Immediate commencement of the compensation payment process is also of great importance not only in the context of the limitation of claims, but also from the perspective of securing the costs of medical treatment of a seafarer abroad (as well as in Poland), or also in relation to a possible tort claim – i.e. related to a prohibited act on the part of the Employer for which he is at fault. The experience of the Law Firm shows that after collecting the appropriate documentation and determining the applicable law, it is reasonable to apply for securing the appropriate claims against the shipowner/insurer.

Importantly, depending on the established applicable law, it may turn out that from the perspective of the interests of the seafarer and his family, treatment on site will be more beneficial and at the same time easier to enforce than repatriation to Poland and subsequent recovery of medical costs. Of course, the above-mentioned issues must be assessed individually in relation to a specific case and a specific event. So this will not be a rule, however, it is such an important circumstance that it is worth keeping it in mind.

The Law Firm’s experience shows that seafarers often delay initiating the compensation process and seek advice months or even years after the damage occurred. Understanding their motivations, e.g. the desire to avoid a dispute with a current employer, it should be clearly indicated that such behavior carries a great risk. This is especially due to the fact that – as we have already mentioned – in most cases only the law of a foreign country will apply, and foreign courts will be competent to resolve disputes. Considering the high costs of legal services provided by foreign law firms, from a Polish perspective, legal action may be practically out of the question for many people. At the same time, legal steps taken too late, including those aimed at an amicable settlement of the dispute, may prove ineffective, considering the number of tools available to shipowners or their insurers to prolong the proceedings.

Conclusions
1. not delaying taking the necessary actions to obtain benefits for an accident at work/occupational disease.

2. quickly gathering the appropriate employee documentation and its thorough analysis.

3. assessing the validity of pursuing claims under the law
In seafarer compensation cases resulting from an accident at work, it is impossible to establish one and the same rule from the point of view of all such cases. Employers/shipowners, as well as their insurers, are international entities conducting business all over the world.

Each seafarer contract is different and it is very often the case that the premises of the shipowner’s/employer’s liability are expressed differently – depending on the policy of the given entity.
In the event of any doubts in the context of seafarer compensation, we recommend contacting a specialized law firm that will be able to assess the case in a full manner and dispel any possible doubts.
Legal advisor Mateusz Romowicz www.facebook.com/Legal.Marine.Mateusz.Romowicz
Lawyer Paweł Zboina

http://www.prawo-korporacyjne.pl/