Pretext
The Merchant Shipping Bill, 2024 (“MSB”), recently passed by both Houses of Parliament, introduces for the first time in Indian maritime legislation the distinct concepts of “abandoned seafarer” and “abandoned vessel”. These definitions were absent in the Merchant Shipping Act, 1958. The introduction of these provisions marks a significant step towards strengthening the protection of seafarers and ensuring accountability of shipowners. This article analyses the legal implications of these concepts and their operational impact.
Relevant Provisions
As the name suggests, abandonment under the MSB deals with crew and vessel. In each of these cases, MSB has dealt with various issues regarding the issues. It is best to start with the definition of both these terms as defined under the MSB.
The term abandoned crew and vessel under the MSB is defined as follows:
- “abandoned seafarer” means a seafarer who is deemed to have been abandoned in violation of the provisions of this Act or the rules made thereunder or the seafarers’ employment agreement, where the ship owner—
(a) fails to cover the cost of the seafarer’s repatriation; or
(b) has left the seafarer without the necessary maintenance and support; or
(c) has otherwise unilaterally severed ties with the seafarer including failure to pay contractual wages for a period of at least two months;
(2) “abandoned vessel” includes any of the following, namely:—
(a) a vessel which is abandoned by the ship owner without any hope of recovering it or without any intention of returning to it; or
(b) a vessel whose master has no financial means for its operation; or
(c). a vessel whose owner is unknown or cannot be traced within reasonable time, despite the Central Government duly notifying the flag State of the vessel or consulate of the country of domicile of the registered owner or the master; or
(d) a vessel whose owner fails to fulfil the ship owner’s obligations under this Act towards ensuring safety, security, prevention of pollution or welfare of seafarers and whose insurer, salvor or contractor fail to fulfil such obligations within such reasonable time as may be specified by the Central Government; or
(e) a vessel restrained by any court or public authority in India in respect of which the public authority or the person assigned responsibility by the court to fulfil the ship owner’s obligations under this Act towards ensuring safety, security, prevention of pollution or welfare of seafarers, fails to do so.
Explanation.—For the purposes of sub-clause (d), failure on part of the ship owner shall also include failure on part of the charterer, manager or operator of the vessel;
- Abandoned Seafarer Implications
The MSB also places an obligation on the crewing/manning agency company to repatriate abandoned seafarers. In case of death, to transport their mortal remains. It also imposes an obligation on the manning agency to ensure labour conditions are in conformity with the employment agreement. Any disappearance on seafarer to be reported within 24 hours.
Abandoned seafarer will have right to apply to the central government, for a proper return to port and also for his necessary clothing and maintenance until his arrival at such port.
All expenses incurred by or on behalf of the Central Government in accordance with the provisions of this Act shall constitute a debt due to the Central Government. Ship owner or his agent or the vessel that seafarer belonged at the time of his discharge or other event which resulted in his becoming an abandoned seafarer shall be jointly and severally liable. Any expenses incurred, shall be prima facie evidence that the expenses were incurred in accordance with the provisions of this Act by or on behalf of the Central Government.
Any debt which may be due to the Central Government under this section may be recovered by any officer authorised by it in writing in this behalf from the person concerned in the same manner as the wages are recoverable under S. 87 which provides for applying to the judicial magistrate of the first class expect where he ship owner has been declared insolvent; the vessel is under arrest or sold by the authority of any court; or a Judicial Magistrate of the first class refers a claim to the court.
- Abandoned Ship Implications
Under the MSB, a vessel deemed to be abandoned, when the owner is untraceable, is unbale to meet the obligations towards safety and security of the vessel and vessel is restrained by a court or where a person is assigned responsibility to fulfil the obligation of the owner.
The MSB also empowers Central Government to direct the port authority or Maritime Board or other authorities or agencies, to render assistance in respect of any vessel which is abandoned on or near the coast of India or within to prevent pollution.
It further provides that such costs or expenses shall constitute a debt due to the Central Government and shall be recoverable from the proceeds of the sale of the vessel. It also provides that the priority of such a claim shall be immediately after claims for wages and claims in respect of loss of life or personal injury, which constitute maritime liens, notwithstanding the priority of maritime claims provided in the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 (22 of 2017).These expenses may be recovered from the proceeds received from the sale of the vessel or its cargo.
Conclusion
The Merchant Shipping Bill, 2024 brings much-needed legislative clarity and enforcement mechanisms to address abandonment of crew and ship especially in cases of repatriation of crew when the government intervenes and also in cases where the Government deploys its resources in dealing with maritime casualty.
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