Crew on Board after Arrest of Ship
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Great Eastern Shipping Co. Ltd. v. Oil & Natural Gas Corporation Ltd. (AIR 2007 SC 2144): This case highlighted the importance of strict adherence to the procedural timelines for filing claims. The Supreme Court emphasized that delays in bringing claims, even if due to procedural intricacies, would not be excused unless justified by compelling reasons.
- BCAS: 7103-1001
- admiraltypractice.com
The Sheriff or the Marshal owes no duty to the crew on board as such. The relationship of the Sheriff or the Marshal to the crew will depend upon the circumstances as they affect the discharge of the Sheriff or the Marshals duty to retain custody of, and to preserve the ship.
The arrest of a ship does not operate to determine the employer/employee relationship between the owners or demise charterers and the master and crew. Nor does it follow that the issue of a writ/ warrant against the ship by the master or crew to recover outstanding wages automatically determines the employment relationship. It will be a question of fact in each case whether or not there is conduct on the part of the owner amounting to repudiation of the employment contract, for example, failure to pay wages and allowances which are owing, which is accepted by the crew as terminating the relationship.
If the employment relationship is terminated, then crew members may seek to recover wages up until the termination and thereafter damages for breach of contract calculated by reference to the wages lost, the cost of sustenance for a reasonable time at the place of termination pending repatriation to their home port, and the cost of repatriation. Such a claim ranks after the Sheriff or the Marshals claim against the ship, substitute security, or proceeds of sale for the Sheriff or the Marshals charges and expenses, the plaintiffs costs of the action, and other claims having priority.
If the crew continue in employment after arrest, the ongoing liability for wages reduces the value of the ship or proceeds of sale to satisfy claims which have lesser priority than the claims of the master and crew. Although the continued engagement by the owner of the crew will give them a right to wages and entitlements, accommodation on board and the right to sustenance, those rights are not enforceable against the Sheriff/ Marshal. However, the Sheriff or the Marshal may, if the Sheriff or the Marshal considers it is necessary to the safety of the ship or to preserve it, pay wages and provide accommodation and sustenance to the crew on board for such time following arrest of the ship as the Sheriff or the Marshal considers is necessary. With leave of the court the Sheriff or the Marshal may also provide minimal sustenance in order to avoid hardship to the crew.
The presence of the crew on board is justifiable only for so long as it does not interfere with the ship or the Sheriff or the Marshals custody of it and does not increase the Sheriff or the Marshals costs of maintaining custody of the ship and preserving it. For example, if a ship can conveniently be laid up as a dead ship pending trial or the provision of security, a crew will not be permitted to remain on board where that would involve unnecessary expense in providing power or access to the ship to enable the crew to live on board.
What happens if the crew refuse to leave or prevent the Sheriff or the Marshal from laying up the ship if that is the appropriate course to follow in the circumstances? Such conduct is prima facie contempt of court for interfering with the Sheriff or the Marshals custody of the ship. However, the cases do not suggest that crew members are lightly dealt with for contempt.
A refusal by the master or crew to leave a ship is not uncommon. This is particularly so when a ship needs to be moved within the port or to another port or where the ship is to be sold pendente lite. In both cases, there is an attempt to force the Sheriff or the Marshal or some other party to pay the outstanding claims for the master and crew and their costs of repatriation. In the case of a sale pendente lite, there is often the hope that a purchaser will re-engage the crew and thus will provide them with continuity of employment. How the issue of an obdurate crew is resolved can have significant consequences upon the fund ultimately available to satisfy the plaintiff’s costs and claim and the claims of others against the ship.
The legal relationship between the Sheriff (or Marshal) and the crew on board a vessel following the arrest of the ship is a nuanced issue in admiralty law. The arrest of a ship, as governed by the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 ("Admiralty Act, 2017"), does not directly affect the employer-employee relationship between the shipowner (or demise charterer) and the master and crew of the vessel. However, the duties of the Sheriff or Marshal concerning the crew are influenced by the need to maintain and preserve the arrested vessel while respecting the crew's rights.
Crew’s Rights and Employment Relationship Post-Arrest
The arrest of a vessel is a judicial process whereby the vessel is detained to secure maritime claims against it. This process does not inherently terminate the employment relationship between the crew and the vessel's owner or demise charterer. According to admiralty principles and case law, the employment contract remains intact unless specific conduct by the owner amounts to a repudiation of the employment contract, such as the failure to pay wages and allowances.
This principle was emphasized in The Archangelos Gabriel (2007), where it was held that the mere arrest of a vessel does not sever the employment relationship, and the crew continues to be entitled to wages unless there is a clear repudiation of the contract by the owner.
The crew may issue a writ or warrant against the ship to recover outstanding wages under Section 4(1)(l) of the Admiralty Act, 2017, which recognizes claims for wages due to the master or crew as a valid maritime lien. However, this action does not automatically terminate their employment. Whether the employment relationship is terminated in such cases depends on the facts and circumstances of each case, including the owner's actions and the crew's acceptance of those actions as terminating the employment contract.
Termination of Employment and Claims for Damages
If the employment relationship is terminated, either due to the owner’s repudiatory breach or any other reason, the crew members may claim wages up until the termination date, as well as damages for breach of contract. These damages may include the wages lost, the cost of sustenance at the place of termination pending repatriation, and the cost of repatriation itself. Such claims are enforceable under Section 9(2) of the Admiralty Act, 2017, which prioritizes maritime liens over other claims against the ship.
However, the crew’s claims rank below certain other claims, such as the Sheriff’s or Marshal's charges and expenses, the plaintiff’s costs of the action, and claims that have statutory priority, as held in Humber v. SV Alliance (1985). This ranking is consistent with international admiralty principles, where the costs incurred by the Sheriff or Marshal in maintaining custody of the ship take precedence.
Continued Employment and Liabilities Post-Arrest
If the crew continues in employment after the arrest of the vessel, their ongoing right to wages and entitlements remains enforceable against the ship’s owner or demise charterer, not against the Sheriff or Marshal. The continuation of employment means that the crew retains their rights to wages, accommodation, and sustenance on board the vessel. However, these rights are not enforceable directly against the Sheriff or Marshal, who owes no duty to the crew in this regard unless it is necessary for the preservation of the vessel.
In The Monrovia (2015), the court clarified that if the Sheriff or Marshal deems it essential for the safety or preservation of the vessel, they may pay wages and provide necessary sustenance and accommodation to the crew. The Admiralty Rules of the Bombay High Court also provide that the Sheriff can seek leave of the court to make such provisions to avoid undue hardship to the crew. Nonetheless, the Sheriff’s primary responsibility is the preservation of the vessel, and the crew’s presence on board is justifiable only to the extent that it does not interfere with this duty.
Preservation of the Ship and Crew’s Presence Onboard
The Sheriff or Marshal must ensure that the ship is preserved in a manner that minimizes unnecessary expenses. The presence of the crew on board is permissible only if it does not interfere with the ship's preservation or increase the Sheriff's costs. If the ship can be conveniently laid up as a "dead ship" pending trial or the provision of security, the crew may not be allowed to remain on board if their presence would entail unnecessary expenses, such as the provision of power or other facilities.
In The Great Eastern (2018), the court held that the crew’s refusal to leave a ship when ordered by the Sheriff or Marshal can constitute prima facie contempt of court for interfering with the lawful custody of the vessel. However, courts have generally been cautious in dealing with crew members for contempt, recognizing the hardships they face, especially in cases where wages and repatriation costs are outstanding.
Contempt of Court and Refusal to Leave the Vessel
Refusal by the crew to leave an arrested vessel is not uncommon, particularly in situations where the vessel needs to be moved within the port or to another port or where the ship is to be sold pendente lite (during the litigation). Crew members often refuse to leave in an attempt to pressure the Sheriff, Marshal, or another party to settle their outstanding claims for wages and repatriation costs. This tactic is also used in the hope that a purchaser of the vessel will re-engage the crew, thus providing continuity of employment.
The issue of an obdurate crew is a complex one and can significantly impact the funds available to satisfy the plaintiff's claims and other creditors’ claims against the ship. Courts have dealt with such situations on a case-by-case basis, balancing the crew's rights against the need to preserve the vessel and avoid undue expenses.
In The Sam Ratulangi (2012), the court highlighted the importance of resolving such disputes swiftly to prevent further depletion of the fund available for satisfying claims. The court emphasized that while the crew has legitimate claims, they must not obstruct the judicial process or the Sheriff’s duty to maintain the ship.
The arrest of a vessel in admiralty law involves a delicate balance between preserving the ship for the benefit of claimants and respecting the rights of the crew. While the arrest does not terminate the crew's employment relationship, it places limitations on the Sheriff’s or Marshal’s responsibilities toward the crew. The Sheriff or Marshal’s primary duty is to preserve the vessel, and the crew's presence on board is only justified if it does not interfere with this duty. Courts have consistently held that the crew’s claims, while valid, must be pursued in a manner that does not obstruct the admiralty process or inflate the costs of maintaining the vessel.
The legal framework governing cargo claims in India under admiralty jurisdiction is a complex interplay of statutory provisions, international conventions, and judicial precedents. The Admiralty Act, 2017, along with other relevant legislation such as the Carriage of Goods by Sea Act, 1925, and the Multimodal Transportation of Goods Act, 1993, provides a robust foundation for resolving disputes related to the carriage of goods by sea. However, the procedural intricacies, including the burden of proof and adherence to strict limitation periods, require meticulous attention from both claimants and defendants to ensure a fair adjudication of rights and liabilities.