Merchant Shipping Act-4 (Default, Desertion, Deceased, Distressed)

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. Is there any provision in respect of a misconduct, endangering life or ship?
Ans . Section 190 provides that, ‘no Master, seaman or apprentice belonging to an Indian ship, wherever it may be, or to any other ship, while in India, shall knowingly do anything tending to the immediate loss or destruction of, or serious damage to, the ship, or tending immediately to endanger the life of, or to cause injury to any person belonging to or on board the ship.’ They must not refuse or omit to do any lawful act proper and requisite to be done by him for preserving the ship from immediate loss destruction or serious damage, or for preserving any person belonging to or on board the ship from danger to life or from injury.

Q. What is the situation when a seaman is found absent before sailing out of a ship without any reason?
Ans. Section 191 deals with this subject. Seamen lawfully engaged and apprentice, shall neither desert their ship nor shall neglect or refuse, without reasonable cause, to join the ship or to proceed to sea nor be absent without leave at any time within twenty-four hours of the ship’s sailing from a port, neither at the commencement nor during the progress of a voyage. Absence from duty at any time without leave and without sufficient reason is also not permitted.

Q. What can be a reasonable cause for a seaman or apprentice to be absent? What must be done by them, prior being absent?
Ans. S 191: The fact that the ship, on which the seaman or apprentice is engaged or to which he belongs is unseaworthy shall be deemed to be a reasonable cause. Provided that the seaman or apprentice has, before failing or refusing to join his ship or to proceed to sea in his ship or before absenting himself or being absent from the ship, as the case may be, complained to the Master or a shipping master, surveyor, seamen’s welfare officer, port health officer, Indian consular officer or any other officer at any port duly authorised in this behalf by the central government, that the ship is unseaworthy.

Q. What is the possible action in respect of a seaman wrt his CDC?
Ans. S-192: If it is shown to the satisfaction of a proper officer that a seaman has deserted his ship or has absented himself without leave and without sufficient reason from his ship or from his duty, the proper officer shall forthwith make a report to that effect to the director-general, who may thereupon direct that the seaman’s CDC be withheld for specified period.

Q. In a foreign country, can a Master of Indian ship get his ship’s deserter arrested?
Ans. S193 deals with such situation. Thus, if a seaman or apprentice deserts his ship or is absent without leave and without sufficient reason from his ship or from his duty, the Master, any mate, the owner or agent of the owner of the ship may, without prejudice to any other action that may be taken against the seaman or apprentice under this Act, convey him on board his ship and may for that purpose cause to be used such force as may be reasonable in the circumstances of the case.

If, either at the commencement or during the progress of any voyage, a seaman or apprentice engaged in an Indian ship commits outside India, the offence of desertion or absence without leave or any offence against discipline, the Master, any mate, the owner or agent of the owner may, if and so far as the laws in force in the place will permit, arrest him without first procuring a warrant. No person shall convey on board or arrest a seaman or apprentice on improper or insufficient grounds.

Q. How can the sentencing for desertion be waived?
Ans. S 193 states,’ where a seaman or apprentice is brought before a court on the ground of desertion or of absence without leave or of any offence against discipline, and the Master or the owner, or his agent, so requires, the court, may, in lieu of committing and sentencing him for the offence, cause him to be conveyed on board his ship for the purpose of proceeding on the voyage, or deliver him to the Master or any mate of the ship or the owner or his agent, to be by them so conveyed, and may in such case order any costs and expenses properly incurred by or on behalf of the Master or owner by reason of the conveyance to be paid by the offender and if necessary, to be deducted from any wages which he has then earned or by virtue of his then existing engagements may afterwards be earned.

Q. Where can the disputes related to employment referred to?
Ans. CG by S 150 has powers to refer disputes between seamen and their employers to tribunals. Where there is any dispute between seamen, union and the owners of ships incidental to the employment of the seamen, the central government may, by notification in the official gazette, constitute a tribunal consisting of one or more persons, and refer the dispute to the tribunal for adjudication.

The tribunal shall have power to regulate its own procedures and for certain necessary matters. It shall have the same powers as are vested in a civil court under the Code of Civil Procedure. The tribunal shall submit its award to the central government. On receipt of the award, the central government shall cause it to be published and the award shall become enforceable on the expiry of thirty days from the date of such publication. An award which has become enforceable under this section shall be binding on all parties to the dispute.

Q. What is the provision about the effects of deceased seamen?
Ans. S152 to S156 and S160 deal with various aspects of dealing with effects of deceased seaman or apprentice. If any seaman or apprentice engaged on any ship, the voyage of which is to terminate in India, dies during that voyage, the Master of the ship shall report the death to the next-of-kin of the seaman or apprentice and to the shipping master at his port of engagement and shall take charge of any money or effects belonging to the seaman or apprentice which are onboard the ship. The facts i.e. a statement of money and description of effects; sum due and of the amount of deduction; are entered in the official log book. Thereafter if ship touches and remains for forty-eight hours at some port elsewhere, the Master shall report the case to the Indian consular officer with the details required. The Indian consular officer may, if he thinks it expedient, require the property of the seaman or apprentice to be delivered and paid to him and shall thereupon give to the Master a receipt thereof and endorse upon the agreement.

In other situations, the Master shall within forty-eight hours after his arrival at his port of destination in India, pay and deliver the property to the shipping master at that port.  A deduction claimed by the Master in such account shall not be allowed unless verified by an entry in the official log book and also by relevant voucher. In case of non receipt the said property may be recovered in the same court and manner in which the wages of seamen may be recovered under this Act.

In case of  property of deceased seamen left abroad but not on board ship, the Indian consular officer at or near the place shall claim and take charge of such money and other effects. If he thinks fit, sell the effects, and the proceeds of any such sale shall be deemed to form part of the property of the deceased seaman or apprentice. But before selling any valuables comprised in the said effects, such officer or shipping master shall endeavour to ascertain the wishes of the next-of-kin of the deceased seaman or apprentice. 

Where a seaman or apprentice is lost with the ship to which he belongs, the central government or such officer as the central government may appoint in this behalf, may recover the wages and the compensation due to him from the owner, Master or agent of the ship in the same court and in the same manner in which seamen’s wages are recoverable.

If a seaman or apprentice dies in India, the Master, owner or agent shall pay and deliver or account for such property to the shipping master at the port where the seaman or apprentice was discharged or was to be discharged.

Where no claim to the property of a deceased seamen or apprentice received by a shipping master is substantiated within one year from the receipt, the shipping master shall cause such property to be sold and pay the proceeds of the sale into the public account of India.

Q. What is the provision about nomination?
Ans. As per S 159A, a seaman or apprentice may, nominate one or more members of his family in a prescribed form.

Q. What is the provision about maintenance and repatriation of distressed seamen?
Ans. The Indian consular officer at or near the place where a seaman is in distress shall, on application being made to him by the distressed seaman, provide in accordance with the rules made under this Act for the return of that seaman to a proper return port, and also for the necessary clothing and maintenance until his arrival at such port.

All repatriation expenses, other than excepted 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 for which the owner or agent of the ship shall be liable; and the owner or agent shall not be entitled to recover from the seaman. On the other hand, in respect of excepted expenses incurred, the seaman and the owner or agent shall be jointly and severally liable; and the owner or agent shall be entitled to recover from the seaman in settlement or part settlement of such debt, and may apply to any wages due to the seaman.

A seaman may be sent to a proper return port by any reasonable route either by sea or land or if necessary by air or partly by any one and partly by any other of these modes.

Provision shall be made for the return of the seaman as to the whole of the route if it is by sea or partly by placing the seaman on board an Indian ship which is in want of men to make up its complement, or by providing the seaman with a passage in any ship, Indian or foreign, or with the money for his passage and, as to any part of the route which is by land or air, by paying for maintenance during the journey. Alternately, he may, deposit with the proper officer adequate sum to defray the expenses of the return to a proper return port.

In any proceeding under this part a certificate of the central government or of such officer as the central government may specify in this behalf to the effect that any seaman named therein is distressed shall be conclusive evidence that such seaman is distressed.

Q. Is the Master required to carry distressed seamen on board?
Ans. The Master of an Indian ship shall receive on board his ship and afford passage and maintenance to all distressed seamen whom he is required by the Indian consular officer to take on board his ship, and shall during the passage provide every such distressed seaman with accommodation equal to that normally provided for the crew of the ship and subsistence, proper to the rank or rating of the said distressed seaman, provided accommodation is available for such seamen.

The Indian consular officer shall endorse on the agreement with the crew of the ship particulars of the seaman so placed on board.

On the production of a certificate signed by the Indian consular officer, the Master shall be entitled to be paid in respect of the subsistence and passage of every seaman so conveyed and provided for by him, exceeding the number, if any, wanted to make up the complement of his crew.

Q. What is the provision in respect of expenses of medical attendance in case of illness?
Ans. If the Master of an Indian ship, or a seaman or apprentice, receives injury or suffers from any illness (not being a hurt, injury or illness due to his own wilful act or default or to his own misbehaviour), resulting in his being discharged or left behind at a place other than his proper return port, the expenses of providing the necessary surgical and medical advice, attendance and treatment and medicine, and also the expenses of the maintenance of the Master, seaman or apprentice until he is cured, or dies, or is brought back to the initial or agreed port, after receiving the necessary medical treatment, and of his conveyance to that port, and in case of death, the expenses, if any, of his burial or cremation shall be defrayed by owner of the ship without any deduction on that account from his wages.

If the Master, seaman or apprentice is on account of any illness or injury temporarily removed from his ship, for the purpose of preventing infection, or otherwise for the convenience of the ship, and subsequently returns to his duty, the expenses of removal and of providing the necessary surgical and medical advice, attendance and treatment and medicine and of his maintenance while away from the ship, shall be defrayed in like manner.

The expenses of all medicines, and surgical and medical advice, attendance and treatment, given to a Master, seaman or apprentice, while on board his ship, shall be defrayed in like manner.

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