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COVID-19,  extension and early termination of seafarer’s contract

By: ATTY. DENNIS R. GORECHO - Columnist/CDN Digital | April 07,2020 - 07:00 AM

 

Seafarers have a right to return home at the end of their contract at no cost to themselves.

Unfortunately, thousands of  seafarers, mostly from cruise liners, with expired employment contracts have been forced into continued labor aboard ships due to the COVID-19 (coronavirus disease 2019) pandemic. 

Airline and port restrictions have made it difficult for seafarers to get home. In some instances, repatriation is almost impossible because most international air traffic is grounded.

As a general rule, the period of employment shall be for a period mutually agreed upon by the parties but not to exceed 12 months. The  contract shall cease when the seafarer completes his period of contractual service aboard the ship, signs-off and arrives at either airport or seaport of the point of hire.

If a seafarer keeps working longer than the agreed period, any subsequent period is to be considered an extension of the contract. An extension is not usually encouraged due to factors such as fatigue, complacency, and other health reasons and the same may not be accepted if relief is already lined up. 

Any extension of the contract can be voluntary or compulsory. Extension is voluntary if it is with the mutual consent of both parties. It is compulsory if he stays  until the ship’s arrival at a convenient port and/or after the arrival of the replacement crew provided that, in any case, the continuance of such service shall not exceed three months. At present, there are many compulsory extensions because of port and airport restrictions.

Extending the contract due to COVID-19 should only be used with appropriate safeguards to protect seafarers.

In the absence of a new document or POEA contract, as long as the seafarer has not yet arrived at the point of hire, it is legally presumed that the original contract is still subsisting.

The seafarer is entitled to be paid his wages and other benefits after the expiration of his contract and during the extended period. The obligations and liabilities of  the employers do not end upon the expiration of the contracted period as they were duty bound to repatriate the seafarer to the point of hire to effectively terminate the contract of employment. (Inter-orient Maritime v. NLRC,330 Phil. 493).

The seafarer must not be forced to accept monetary benefits that are lower that those stated in the original contract. There are reports that some employers  are paying only basic wages during the extension period.

On the other hand, the seafarer’s employment is terminated even before the contract expires as soon as he arrives at the point of hire and signs off for medical reasons, due to shipwreck, voluntary resignation or for other just causes.

Where the ship’s voyage is discontinued necessitating early termination of the contract, the seafarer shall be entitled to earned wages, repatriation at employer’s cost and one (1) month basic wage as termination pay, unless arrangements have been made for him to join another ship belonging to the same principal to complete his contract in which case he shall be entitled to basic wages until the date of joining the other ship. (SECTION 23, POEA contract)

If the ship arrives at a convenient port before the expiration of the contract, the employer may repatriate the seafarer from such port, provided the unserved portion of his contract is not more than one (1) month. He shall be entitled only to his earned wages and earned leave pay and to his basic wages corresponding to the unserved portion of the contract.

The seafarer, when discharged and repatriated shall be entitled to basic wages from date of signing off until arrival at the point of hire. He shall also be provided with accommodation and food, allowances and medical treatment, if necessary,  during the same period.

Seafarers must be cautious in signing documents of repatriation if it is part of the employer’s plan to cut operational losses due to COVID-19 pandemic.

If the employer instructs seafarers to sign letters of resignation or request for early repatriation, it might  be an attempt to evade its obligation under the contract. The seafarer shall be liable for his repatriation cost as well as the transportation cost of his replacement.

Referring to the issue of crew changes, the International Maritime Organizations (IMO) noted that  professional seafarers should be granted any necessary and appropriate exemptions from national travel or movement restrictions to allow them to join or leave ships, and that governments should permit them to disembark ships in port and transit through their territory (i.e. to an airport) to allow crews to be changed and seafarers to be repatriated.

IMO Secretary-General Kitack Lim  said it was “crucially important that the flow of commerce by sea should not be unnecessarily disrupted.”

Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email [email protected], or call 09175025808 or 09088665786).

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