At the heart of any working relationship between a crew member and a yacht is a contract. The terms of that contract will almost always be set out in writing but a contract can also be verbal or ‘by conduct’.
We often forget that the superyacht industry is relatively new. Contracts were often written on the fly and notoriously vague. Many still are.
Superyacht crew can get fired for nothing. For being too good looking or not good looking enough. For not being enthusiastic enough. For explaining that something is wrong or even illegal. Stories abound of horror dismissals, of crew members left on the dock in a far off island, with no clear cut repatriation procedures in their contract.
Because we are an optimistic and enthusiastic industry, always looking on the bright side of life, such events are usually under-reported. Recently a whole compliment of a yacht’s crew was not paid for months, embroiled in legal disputes beyond their control and with which they had absolutely no involvement. The big cases make the press, the less significant ones stay below the radar.
Ideally, the contract between the crew and the yacht should be a clear definition of the respective responsibilities of both the crew members and the employer. The employment contract should take into account the provisions of the Maritime Labour Convention which has been ratified into the Legal systems of most flag states – with the exception of the USA which has an aversion to international conventions where it is not the standard-bearer, although US maritime labor law has been updated to reflect the impact of the MLC.
The MLC stipulates that all employment is subject to a seafarers agreement (SEA) which should refer to the provisions of the MLC. Most yachts will follow these provisions which cover almost all eventualities- repatriation, leave, working hours, sickness, bullying and disciplinary procedures.
An important provision of the MLC is that a crewmember should see a contract before starting work and has the right to consult an independent party if unsure of the terms and conditions of employment. MGN 447 says it all.
The Seafarers Employment Agreement (SEA) must define who the employer is. If the employer is a shell company (a special purpose vehicle) with registration under a flag of convenience, the actual beneficial owner must be named, though this will generally not name the actual owner.
Experience crew are loath to a step onboard the yacht until they have closely scrutinised the contract of employment. Many have learned that long-standing informal arrangements and even hitherto good relationships with owners can deteriorate quite quickly
Younger crew members or newbies may have a much more laissez-faire approach to their terms of employment, especially in these internet times when we sign terms of a contract on our phones between Google and Instagram and so on without as much reading them. Many are so delighted to be joining the industry that they would sign anything without giving it too much consideration, not willing to be considered as a troublemaker from the start. A new crewmember is unlikely to say I will join your boat but only if you add these conditions.
However, if a crewmember has signed away many of his or her rights, this will make getting legal redress all the more difficult and expensive.
Captains will be much more attentive to their contract because they historically have a broader set of legal responsibilities under maritime law, not just to the owner. Their responsibilities as a captain may conflict with what the owner wants. Conflict can lead to a deterioration of the working relationship and eventually dismissal.
Nautilus is the union of the yacht crew. Membership gives individual crew members protection from exploitation. They will look at your proposed contract if you are not sure what exactly you are signing. Nautilus also act collectively for all members on a yacht when the employees are caught up in a financial mess that is not of their making. The legal dog’s dinner that was the divorce between the husband and wife owners of the Luna was an extreme case of yacht life going totally pear-shaped: crew stranded in Dubai, passports seized, wages stopped, writs flying like confetti between the high courts in London and Dubai, not mention a touch of Sharia law.
In the worst-case scenario, breach of contract can lead to lawsuits. One factor that an aggrieved crewmember should consider in taking legal action against yacht owners is that, even if the decision goes for the plaintiff, it might be just as expensive to enforce. Superyachts have been sued and seized (or arrested which is the proper term). At which point the plaintiff is responsible for the upkeep, wages and berth fees and can face financial ruin
Often it is best to walk away, knowing the MLC does not allow crew agencies to keep a shit list of individuals considered awkward just for standing up for their rights. Move on and start again,
Nautilus recently affirmed the right of seizure in a case that focused on maternity rights. The Union is supporting a member and master seeking damages for her employer’s non-payment of maternity entitlements and breach of contract.
Nautilus is funding the case on behalf of the member, which has resulted in the UK-flagged superyacht vessel the Sunseeker M/Y Lazy P, on which she served, being arrested.
After review by French legal counsel engaged by Nautilus, the member is likely to receive a large compensation pay-out due to the employer’s refusal to grant her maternity rights in accordance with French law, as well as her employer’s failure to declare her employment to the appropriate authorities, and damages for breach of her Seafarers Employment Agreement.
PIERS MORGAN: The most blissful way to sample the delights of the French Riviera? On board a luxury motor yacht called ‘Lazy P’, of course… https://t.co/rGKCeWnMw5 #piersmorgan #FrenchRiviera @SunseekerCharte @piersmorgan
— MailOnline Travel (@travelmail) 20 October 2019
(Piers Morgan on the Lazy/P – in no way connected to the legal action on the yacht)
Nautilus legal director Charles Boyle said: ‘This member came to Nautilus following her employer’s persistent refusal to pay her full maternity entitlement. Had they chosen to comply, that would have been the end of the matter. However, our French lawyer uncovered other irregularities, being failures of the employer, which have now resulted in the yacht being arrested, as security against the substantial damages being claimed.