Repatriation is one of the shipowners’ obligations resulting from the termination of the crew members’ employment contract. With the termination of the employment contract between the crew member and the shipowner, the crew member is entitled to claim repatriation. In principle, repatriation includes the transfer of the crew member to the port of registry or to the place determined by the parties in the contract, upon termination of the employment contract without notice by the crew member or the shipowner or upon automatic termination. In addition, all mandatory costs on this trip must be borne by the shipowner.
Due to the current war between Ukraine and Russia, difficulties may arise regarding the liability of the shipowner in cases such as taking measures that impede the mobility of ships and failure of procedures for the repatriation of the member. of crew. The basic rules concerning repatriation, the responsibilities of the shipowner and the crew member are governed by the Maritime Labor Code No. 854, the Convention on the repatriation of seafarers No. 166 prepared by the International Organization Convention (ILO) and the Maritime Labor Convention (MLC 2006) which also concerns Convention No. 166.
Maritime Labor Code number 854 applies to crew members who work with a labor contract on board Turkish flag vessels weighing 100 gross tons or more and their employers. “Convention No. 166 on the repatriation of seafarers” will however apply to all employees who work on board seagoing vessels registered in the territory of any Member State where the convention is in force. These regulations must be applied regardless of the nationality of the crew member. In the event that these two legal standards govern the same question which contradict each other, Convention No. 166 must be applied since it is an international agreement and contains provisions in favor of the crew member.
Conditions required for a crew member to be eligible for repatriation, the responsibilities of the shipowner and the crew member are governed by articles 21 and 25 of the Maritime Labor Code No. 854 and the aforementioned Convention No. 166 . Although the rules relating to repatriation have been determined in both national and international legislation, it is also important to resolve the difficulties that arise during the repatriation of the crew member and the liability of the shipowner.
The repatriation obligation brings with it the question of where the crew member is to be repatriated and how far the shipowners’ obligations will continue during this repatriation process. Due to the war between Ukraine and Russia, it is crucial to examine these topics in order to protect the rights of both parties.
In Article 3 of the Convention, the prescription of destinations is left to each Member State, however, the place of engagement of the member of the crew, the place stipulated by collective agreement, the country of residence of the member of the crew or such other location as may be mutually designated at the time of engagement have been included in the destinations. Thus, it is guaranteed that a crew member will have the right to choose, among the prescribed destinations, the place to which he is to be repatriated.
However, Articles 21 and 23 of the Maritime Labor Code stipulate that, whether the ship is on national territory or abroad, in the event of termination of the employment contract by the crew member or the shipowner without notice or automatically terminated, the crew members shall be repatriated to the port of registry by the shipowner, unless otherwise agreed in the agreement. However, if another port is specified in the employment contract for the repatriation of the crew member, the repatriation will be carried out at the designated place.
Except that, whether termination occurs with or without notice, for foreign crew members, there is in principle an obligation to repatriate them to the port of their residence, unless otherwise provided in the employment contract.
In the event of termination of the employment contract while the ship was still at sea, the date of termination shall be deemed to have been extended until the time when the ship is stowed on arrival at the designated port and in the event of a change of port appointed, with arrival at the first port.
The responsibilities of the shipowners continue until the end of the repatriation. If crew members cannot be repatriated to the designated port because it is not safe and convenient or due to war sanctions between Ukraine and Russia, they must be repatriated to another place with their consent . This also applies to Russian crew members who cannot be repatriated to Russia due to sanctions imposed on Russia. Also, as is known, traveling to Ukraine is no longer possible, convenient or safe these days. It is therefore unlikely that shipowners will be able to arrange for crew members to be safely repatriated to their home towns in Ukraine. In these circumstances, it will be necessary for shipowners and crew members to agree on an alternative port of repatriation and possibly this may result in a change to the employment contract.
If a crew member is sent to another port, the shipowner’s obligations towards this crew member continue until the end of the repatriation. In light of the current crisis in Ukraine, many Ukrainian crew members are asking to be released from their employment contracts before the original termination date. In this case, the shipowner may accede to any request for early termination of the contract and allow the repatriation of the crew member. However, in order to protect the rights of the parties, it is important that these subjects are mentioned in the contract or the addendum.
The shipowner’s liability also continues until the repatriation process is completed in the event of illness or injury of a crew member during repatriation to the alternate location. There are different reflections in the doctrine on the validity of a written waiver to be taken stating that the crew member renounces his claim for compensation related to the repatriation process, after the termination of the contract. Such waiver must, in any case, meet at least the requirements set out in the Turkish Code of Obligations.
Difficulties also arise as to whether the shipowner can extend the terms of the agreement in the event that repatriation of the crew member after termination of the agreement is not possible, practical or safe due to war. between Ukraine and Russia. Article 2 of Convention No. 166 stipulates that national legislation or collective agreements should prescribe the maximum period of employment on board during which a crew member is entitled to repatriation; these periods must be less than 12 months. There is no regulation on this subject in the Maritime Labor Code No. 854, and it has been determined by the maritime industry that this period should be a maximum of 11 months. In addition, the shipowner has an obligation to ensure that any crew member contract extensions violate applicable flag state guidelines or regulations.
It is regulated in Article 21 of Code No. 854 and Article 4 of Convention No. 166 that repatriation costs may be requested from the crew member in the event of termination of the employment contract by the shipowner. for a valid reason. In addition, in the event of the shipowner’s failure to fulfill his repatriation obligations, the crew member may demand repatriation costs and compensation equal to his salary for 15 days in accordance with article 24 of the code of maritime work. No. 854. Furthermore, if the shipowner is not the employer of the crew member, national legislation is without prejudice to the right of the shipowner to collect repatriation costs from the employer of the crew member.
In accordance with Article 25 of Code No. 854, if a crew member whose employment contract is terminated in a foreign country, whether or not he is connected with the maritime affairs of that country, enters into an employment contract with another employer, the ship owner will no longer be obliged to repatriate it. Likewise, it is regulated in the law mentioned that if the crew member does not request his repatriation within the week following the end of his employment contract, the shipowner’s obligation to repatriate will be abolished.
Considering that the principle of interpretation in favor of the employee in Turkish law and the possibility of this principle being applied to the relationship between shipowners and crew members, it is important to make all notifications in writing and to keep logbook records to avoid burden of proof issues.