Merchant Shipping Act-3 (Engagement, discharge and management of crew)

Disclaimer: The idea of publishing this article is to: generate positive interest in mariner about the MSA 58;  and familiarize him broadly with the scope and range of the Act without going into legal intricacies.  Reader, in order to make final conclusion must refer to the Act in full with the relevant MS Rules.

Q. What powers the CG has, to cancel or suspend certificates?
Ans. If it appears to the central government that the holder of a certificate granted under this Act has obtained it on false or erroneous information; it may cancel or suspend such certificate. This is provided under S 85. The person concerned must however be given an opportunity of making a representation against the order proposed.

Q. What is stated in the Act regarding the COC or sea service granted by other countries?
Ans. This subject is dealt under s-86. The central government may, by notification in the official gazette, declare that any certificate of competency or service granted under the laws in force in that country and specified in that notification shall be recognised as equivalent to the corresponding certificate of competency granted under this Act.
The conditions being:

  • provision is made by the law in force in any foreign country for the grant of certificates of competency, similar to those referred to in this Act;
  • the conditions under which, any such certificates are granted in that country require standards of competency not lower than those required for the grant under this Act; and
  • the certificates granted under this Act are accepted in that country in lieu of the corresponding certificates granted under the laws of that country.

Q. What is part VII of the Act? What is covered in this part?
Ans. Part VII (88 to 218) titled Seamen and Apprentices deals with the matters such as:

  • classification of seamen and prescription of minimum manning scale;
  • shipping master’s;
  • apprenticeship;
  • seamen’s employment office;
  • engagement of seamen;
  • employment of young persons;
  • engagement of seamen;
  • Masters of ships other than Indian ships;
  • incharge of seamen;
  • advance;
  • rights of seamen regarding wages;
  • mode of recovering wages;
  • power of court to rescind contracts;
  • dispute between seamen & employers;
  • property of deceased seamen & apprentices;
  • distressed seamen;
  • provision, health & accommodation;
  • protection of seamen in respect of litigation and other matters;
  • provision as to discipline;
  • official logs; and
  • national welfare board of seafarer.

Q. What is the provision regarding agreement with crew?
Ans. As per s-100 the Master of every ship except a home trade ship of less than two hundred GRT, shall enter into an agreement (in this Act called the agreement with the crew) in accordance with this Act, with every seaman whom he engages in, and carries to sea as one of his crew from, any port in India.

Q.  What you understand by serving seaman?
Ans. A seaman shall, for the purposes of these provisions, be deemed to be a serving seaman during any period commencing on the date of the agreement with the crew and ending thirty days after the date on which the seaman is finally discharged from such agreement.

Q. Can we say that Master is a seaman as provided by the Act?
Ans. “Seaman” means every person (except a Master, pilot or apprentice) employed or engaged as a member of the crew of a ship under this Act, but in relation to sections 178 to 183 (inclusive) includes a Master.

Q. What are these sections about?
Ans. Section 178 is ‘Meaning of serving seaman’. This section states that a seaman shall, for the purposes of these provisions, be deemed to be a serving seaman during any period commencing on the date of the agreement with the crew and ending thirty days after the date on which the seaman is finally discharged from such agreement. Section 179 is ‘the particulars to be furnished in plaints’, etc. Thus, if any person presenting any plaint, application or appeal to any court has reason to believe that any adverse party is a serving seaman, he shall make a statement accordingly in the plaint, application or appeal. A collector may certify such facts to the court. Section 180 deals with the notice to be given in case of unrepresented seaman whereby in case of a serving seaman, the court shall suspend the proceeding and shall give notice thereof to the shipping master’. The court however may refrain from suspending the proceeding and giving the notice in certain situations. (pre-emption, or identical interest with other representing party),The court may still suspend the proceeding (even if not party to proceeding) and shall give notice thereof to the Shipping Master’, if the seaman’s interests are likely to be prejudiced by his inability to attend. If the shipping master either certifies that the seaman is not for the time being a serving seaman or fails within two months from the date of the receipt of the notice the court may, if it thinks fit, continue the proceeding.

As stated is s-181, ‘where in any proceeding before a court, a decree or order has been passed against any seaman while he was a serving seaman, the seaman, (or if he dies while he is a serving seaman), his legal representative, may apply to the said court to have the decree or order set aside, and if the court, after giving an opportunity to the opposite party of being heard, is satisfied that the interests of justice require that the decree or order should be set aside as against the seaman, the court shall make an order accordingly’.

Section 182 allows modification of law of limitation owing to his death.
As provided by s183, if any court is in doubt whether, for the purpose of section 180 or section 181, a seaman is or was at any particular time or during any other period a serving seaman, it may refer the question to the shipping master’, and the certificate of the shipping master’ shall be conclusive evidence on the question.

Q. Compare the rights available to seaman and Master of Indian ship, under the Act.
Ans. The crew has agreement with the Master as provided by s-100.  It states that  ‘the Master of every Indian ship, except a home-trade ship of less than two hundred tons gross, shall enter into an agreement  in accordance with this Act with every seaman whom he engages in, and carries to sea as one of his crew from any port in India’.

Thus, Master is a legal party to the agreement, who as a representative of owner can resolve the matter internally or coordinate with shipping master in respect of disputes related to wages of seaman. Thus, s-132, which is ‘Decision of questions by shipping masters’, states, where under the agreement with the crew any dispute arises at any port in India between the Master, owner or agent of a ship and any of the crew of the ship, it shall be submitted to the shipping master, if both parties to the dispute agree in writing to submit the dispute to the shipping master.  Any complaint of dispute received by the shipping master from an Indian seaman in Indian territorial waters, shall be heard and decided.  The award made by him shall be conclusive as to the rights of the parties, and any document purporting to be such submission or award shall be prima facie evidence thereof. An award made by a shipping master under this section may be enforced by court. As per s-139, right to recover wages and salvage is not to be forfeited. As given in s-140, wages are not to depend on freight. S-141 is in respect of wages on termination of service by wreck, illness, etc.S-143 is compensation to seamen for premature discharge.

Section 148 is ‘remedies of Master for wages, disbursements, etc’. Thus, the Master of a ship shall, so far as the case permits, have the same rights, liens and remedies for the recovery of his wages as a seaman has under this Act or by any law or custom. It further makes it clear that the Master of a ship, by reason of the decease or incapacity from illness shall, so far as the case permits, have the same rights, liens and remedies for the recovery of disbursements or liabilities properly made or incurred by him for recovery of his wages. In a proceeding, touching the claim of a Master in respect of such wages, etc., the court may direct payment of any balance found to be due.

Q. What facilities are available to a seaman or apprentice for making complaints?
Ans. As provided in section 184, if a seaman or apprentice states to the Master that he needs to make a complaint to a Judicial Magistrate of the first class or a Metropolitan Magistrate as the case may be or other proper officer against the Master or any of the crew, the Master shall allow the complainant to go ashore or send him ashore under proper protection so that he may be enabled to make the complaint, as soon as the service of the ship will permit.  (If the ship is then at a place where there is a magistrate or other proper officer). If the ship is not, then at such place, then, the Master shall allow him, as soon after her first arrival at such place as the service of the ship will permit.

Q. What are the special provisions as to apprenticeship to the sea service?
Ans. S-92 deals with this. The apprenticeship of any person to the sea service shall be by contract in writing between the apprentice or if he is a young person, then, on his behalf by his guardian, and the Master or owner of the ship. Such a contract shall be executed in duplicate in the prescribed form and in accordance with the rules made by the Central Government in this behalf and shall be executed in the presence of, and be attested by, the shipping master of the port. The shipping master shall, before the execution of the contract, ensure that the apprentice understands the contents and provisions of the contract. He must also be convinced that  apprentice is not less than 16 years of age and has freely consented to be bound. Also, that he has certificate that he is physically fit for sea service. In case the apprentice is a young person, his guardian’s consent must be obtained.

Q. What matters in respect of an apprentice must be recorded?
Ans. A contract made in India and every assignment, alteration or cancellation thereof, and where the apprentice bound dies or deserts, the fact of the death or desertion shall be recorded in the specified manner.

For the purpose of the record, the Master or owner of the ship to whom an apprentice to the sea service is bound shall transmit the contract executed in duplicate within seven days of the execution thereof, to the shipping master, who shall record one copy and endorse on the other the fact that it has been recorded and redeliver it to the Master or owner.

The Master or owner shall notify any assignment or cancellation of the contract and the death or desertion of the apprentice to the shipping master, within seven days of the occurrence, if it occurs within India, or, as soon as circumstances permit, if it occurs elsewhere.

Q. What are the duties of shipping masters?
Ans. The shipping master shall:

  • superintend and facilitate the engagement and discharge of seamen in the manner provided in the Act;
  • provide means for securing the presence of seamen on board at the proper times;
  • facilitate the making of apprenticeship to the sea service; and
  • hear and decide disputes under section 132 between Master, owner and any crew.

In respect of any dispute of a foreign seaman of a vessel registered in a foreign country, which is, in Indian territorial waters, shipping master shall transmit the complain to the competent authority of the country of registration and a copy of such complaint shall be forwarded to the DG, ILO Office. He shall also perform such other duties relating to seamen, apprentices and merchant ships as entrusted by the Act.

Q. Describe the form and contents of the agreement, as provided in the Act.
Ans. S 101 gives the contents of the agreements with the crew.

Thus, an agreement with the crew shall be in the prescribed form, and shall be dated at the time of the first signature on it and shall be signed by the owner or agent and the Master before any seaman signs the same.

The terms contained in agreement with the crew shall have the following:
(a) the name of the ship or ships, the seaman undertakes to serve;
(b) the nature and, the duration of the intended voyage or the maximum period of the voyage or engagement, and the places or parts of the world, to which agreement does not extend;
(c) the number and description of the crew of different departments;
(d) the time to be on board or to begin work;
(e) the capacity to serve in;
(f) the amount of wages;
(g) a scale of the provisions (being not less than the scale fixed by the C.Govt and published in the Official Gazette);
(h) a scale of warm clothing and additional provisions in specified cold regions;
(i) any regulations as to conduct and lawful punishments for misconduct, sanctioned by the C Govt and agreed by parties;
(j) compensation for personal injury or death arising out of and in the course of employment;
(k) where it is agreed that the services of any seaman shall end at any port not in India, a stipulation to provide him either fit employment on board some other ship bound to the port at which he was shipped or to such other port in India as may be agreed upon, or a passage to some port in India free of charge or on such other terms as may be agreed upon;and
(l) stipulations relating to such other matters as may be prescribed.

The agreement shall provide that in the event of a dispute arising outside India between the Master, owner or agent of a ship and a seaman in respect of any matter touching the agreement, such dispute shall be referred to the Indian consular officer whose decision thereon shall be binding on the parties. The agreement may contain any other stipulations which are not contrary to law.

Q. The Articles of Agreement on Indian ships and the Sign-on Procedure is not of the format or way provided in the MSA. What is the reason?
Ans. This is provided by s-456, ‘power to exempt’. As per this section, notwithstanding anything contained in the Act, the Central Government may (by order in writing and upon such conditions) exempt any ship or sailing vessel or any Master, tindal or seaman from any specified requirement contained or prescribed in pursuance of this Act or dispense with the observance of any such requirement, if it is satisfied that that requirement has been substantially complied with. However, if an exemption is prohibited under Safety Convention, cannot be exempted by this section. Thus, no compromise with safety. It must be noted however that, where an exemption is granted as above, subject to any conditions, the breach of any of those conditions shall be deemed to be an offence under this sub-section.

Q. Is there any provision in respect of payment in foreign currency?
Ans. Section 134 deals with this subject. Thus, where a seaman or apprentice has agreed with the Master of a ship for payment of his wages and if made in any currency other than that stated in the agreement shall, be made at the rate of exchange for the time being current at the place where the payment is made.

Q. What is the provision about the advance of wages?
Ans. S-135 deals with this. Thus, any agreement with the crew may contain a stipulation for payment to a seaman, conditional on his going to sea in pursuance of the agreement of a sum not exceeding the amount of one month’s wages payable.

An agreement by or on behalf of the employer of a seaman for the payment, conditional on his going to sea from any port in India shall be void. After receiving the payment, seaman, willfully or through misconduct shall not fail to attend or desert, till the payment is actually due. If he defaults, the shipping master shall report the matter to the director general who may direct that CDC be withheld for such period as he may think fit.

Q. What is the provision regarding allotment notes respecting seamen’s wages?
Ans. S136 deals with the subject. A seaman may require that a stipulation be inserted in the agreement for the allotment, by means of an allotment note, of any part (not exceeding three-fourths) of the monthly wages in favour of any such member of his family or any such relative or for any such purpose approved. An allotment note shall be in the prescribed form and shall be signed by the owner, Master or agent of the ship and by the seaman. The shipping master or other officer before whom the seaman is engaged shall, after the seaman has signed the agreement, inquire from the seaman about his requirement. The stipulation shall be inserted in the agreement of the crew, and is deemed agreed to by the Master. A payment under an allotment note shall begin at the expiry of one month from the date on which the seaman’s right to wages begins, and shall be made at the expiration of every subsequent month after the first month

Q. What assurance is provided to seaman in respect of the receiving the wages?
Ans. A seaman shall have lien on the ship for the recovery of his wages and shall not by any agreement abandon his right to wages in case of loss of the ship or abandon any right that he may have or obtain in the nature of salvage.  The right to wages shall not depend on the earning of freight.

Where the service of any seaman engaged under this Act terminates before the date contemplated in the agreement by reason of the wreck, loss or abandonment of the ship or by reason of his being left on shore at any place outside India, under a certificate granted under this Act, of his unfitness or inability to proceed on the voyage, the seaman shall be entitled to receive the wages / compensation as per the Act. Thus, in the case of wreck, loss or abandonment of the ship, wages of not less than one month for HT vessels (not less than 3 months for FG vessel) and compensation for the loss of his effects shall be given.

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