Many members of the Gard use Ukrainian and Russian seamen. We answer some of the most common questions about employment terms, as well as the impact of the conflict on P&I coverage for crew claims as reported by Gard.
General guidelines
While each question will depend on the specific facts, we provide below some general guidelines which will be supplemented as events unfold.
1. What if a Member has Ukrainian crew members on board and the crew contracts are about to expire and the seafarer wishes to extend his or her contract and remain on board?
- Seafarers can extend their contracts, according to the Ukrainian ITF affiliate Union Marine Transport Workers Trade Union of Ukraine (MTWTU), and MTWTU encourages that they “stay on board for as long as it becomes possible and safe to return to Ukraine.”
- Members should work with their seafarers to ensure that their Seafarer Employment Agreements are extended or modified in a clear and unambiguous manner.
- Crewmember training or medical certificates may expire depending on the length of the delay. Gard is fine with Ukrainian crewmembers being on board after these certifications expire without this prejudicing cover, but advises the Member to obtain flag state consent.
2. What if a Ukrainian seafarer wishes to terminate the contract early?
- Members who want to fulfil the request should get a written acknowledgement and waiver of the contract terms, which includes changing the repatriation location. For this aim, the International Group of P&I Clubs (IG) has created a template phrase, which can be seen in question #7 below. The IG Clubs have not authorised the wording and are only offering it as a recommendation to Members, who should obtain legal advice depending on the specific contract and jurisdiction.
3. Can a Member repatriate a Ukrainian crewmember to a country/destination other than provided for in the Seaman’s Employment Agreement?
- “For those seafarers willing to return home upon expiry of their employment contracts/termination of their employment, flight tickets to neighbouring friendly countries of Ukraine (main airports – Chisinau, Moldova and Warsaw, Poland; Hungary, Slovakia, Romania) shall be purchased by the company, as well as amounts to cover costs of transportation to Ukrainian land border/checkpoints,” according to a statement from the Union Marine Transport Workers, Trade Union of Ukraine (MTWTU).
- The seafarer’s request for repatriation to a different location should be recognised with a written waiver/release, ideally prepared with the legal guidance of lawyers knowledgeable with the Seafarer’s Employment Agreement and MLC duties, and in consultation with the representative union. Question number 7 below has a template phrasing developed by the IG clubs.
- Repatriation to a different location under a waiver/release may result in visa/refugee complications, and it must be carefully organised with the host country because the allowable length of stay varies by country.
- If a waiver/release provides for the termination of all contractual obligations, such as wages, housing, and subsistence, Members may want to consider a period during which at least the accommodation and subsistence are provided in the host country, possibly with a provision for an extension based on individual circumstances.
- Given the potential for irritation from the Seafarer Employment Agreement/MLC requirements, the representative union(s) will most likely take a pragmatic approach and work with Members.
- Other than medical repatriation, repatriation costs are an operational expense not covered by P&I insurance.
4. How does the War Risk exclusion in the P&I Rules affect cover for personal injury and death of seafarers?
- Gard does not cover injuries or deaths resulting from the war in Ukraine because the P&I insurance excludes war risks. For example, even if the vessel was not the intended target, Gard does not cover a casualty caused by a missile strike.
- Even if the vessel is in a conflict zone, cover for injury, disease, and death is maintained when not caused by war. Even if the vessel is at a Ukrainian port, an injury caused by a slip and fall during ordinary labour aboard the vessel would be covered by P&I.
- In the event that there is any dispute as to which policy responds, members should report injuries or deaths to both Gard and their War Risks underwriter.
- More information about Rule 58 War Risk exclusion can be found in the Gard Guidance to the P&I Rules.
5. To what extent are the Ukrainian crewmembers covered under the P&I cover when transiting to or from the vessel?
- Crew cover under Rule 27 continues in effect for crewmembers transiting to or from the vessel, subject to the war risk exclusion to P&I cover, providing these durations are covered under the employment contract. Liability for hospital, medical, maintenance, burial, and other charges and expenses incurred in connection with a crewmember’s injury, illness, or death in line with the terms of the employment contract and/or applicable law are covered. The Gard Guidance to Rule 27 contains more information about the cover.
6. Will a Member be able to pay its Ukrainian and Russian crewmembers?
- The United States, the European Union, and the United Kingdom have all imposed sanctions in response to Russia’s continuous aggressiveness.
- If payments to crew or next of kin are to be delivered to Ukraine or Russia, members should err on the side of caution and get legal guidance in the appropriate jurisdiction.
- Gard is also keeping a close eye on these new punishments, as they apply to Gard as well.
7. What is the template text for early termination of Seafarer’s Employment Agreement and/or repatriation to an alternative place?
- The following addendum wording has been agreed upon by all clubs in the International Group (IG) Personal Injury Committee. Members should be aware that this is not IG or Gard authorised wording and is offered only for the aim of allowing Members to speak with one voice by giving phrasing for them to use as they see fit. Members should be informed that the effectiveness of this or any other wording is contingent on the precise terms and conditions of the employment contract and the applicable law and that it should be prepared/finalized with the assistance of legal counsel acquainted with CBA and MLC duties.
Contract
Addendum to the contract of employment dated: XXXXX (hereinafter referred to as “SEA”).
This addendum is agreed between (name and rank of the seafarer), hereinafter referred to as “seafarer”, and (name of the employer which could be shipowner direct or its agents to be clarified appropriately as referred in the original employment contract), hereinafter referred to as “employer”.
Template text
According to the terms of SEA, the seafarer’s term of employment on board (insert name of the vessel) completes on………. or is due to be completed on …….. (insert date of completion of contract together with usual +/- tolerance period). The agreed place of repatriation in SEA is …..(insert name of place of repatriation in SEA).
The seafarer wishes to terminate the SEA before the termination date and after due consideration of the present exceptional circumstances, the employer agrees to this request. Repatriation to the original place of engagement is no longer practical or is unsafe. The alternative place of repatriation is now agreed to be……… (insert new location for repatriation).
The seafarer undertakes that s/he shall comply with all applicable laws including but not limited to any entry or visa requirements imposed on her/him at the alternative place of repatriation. In the event that repatriation to the alternative place becomes impractical or unsafe after the nomination by the seafarer but prior to commencement of the repatriation journey, the seafarer and the employer agree to consider alternative viable places of repatriation.
Employer’s obligation
The seafarer and the employer agree that early repatriation to such agreed alternative place of repatriation shall be deemed as a due performance of the employer’s obligation to repatriate the seafarer and the employer will be released from any and all further obligations towards the seafarer under the contract of employment including any obligations imposed under the applicable CBA and/or the Maritime Labour Convention and/or applicable laws other than those which have accrued to the date of repatriation and not yet been discharged.
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Source: Grad
