It is pertinent to note that under Section 138 of the Merchant Shipping Act, 1958, a seaman’s right to wages and provisions shall be taken to being either at the time at which he commences work or at the time specified in the agreement for his commencement of work or presence on board, whichever first happens. The right to wages arise from the working hours on board ship. The ordinary hours of work for all seamen shall not exceed forty-eight hours in a week.
It is further noted that a seaman shall not by any agreement forfeit his lien on the ship or be deprived of any remedy for the recovery of his wages to which, in the absence of the agreement, he would be entitled, 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, and every stipulation in any agreement inconsistent with any provisions of this Act shall be void.
It is provided under section 140 that the right to wages shall not depend on the earning of freight, and every seaman and apprentice who would be entitled to demand and recover any wages if the ship in which he has served had earned freight, shall, subject to all other rules of law and conditions applicable to the case, be entitled to demand and recover the same notwithstanding that freight has not been earned, but in all cases of wreck or loss of the ship, proof that the seaman has not exerted himself to the utmost to save the ship, cargo and stores shall bar his claim to wages.
Where a seaman or apprentice who would but for death be entitled by virtue of this section to demand and recover any wages dies before the wages are paid, they shall be paid and applied in manner provided by this Act with respect to the wages of a seaman who dies during a voyage.
Wages on termination of service by wreck, illness, etc.―(1) 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―
(a) in the case of wreck1, loss or abandonment of the ship― (i) wages at the rate to which he was entitled at the date of termination of his service for the period from the date his service is so terminated until he is returned to and arrives at a proper return port; Provided that the period for which he shall be entitled to receive wages shall be not less than one month; and (ii) compensation for the loss of his effects―
(I) in the case of a seaman employed on a home-trade ship, of not less than one month’s wages; and
(II) in the case of a seaman employed on a foreign-going ship, of not less than three month‟s wages;
(b) in the case of unfitness or inability to proceed on the voyage, wages for the period from the date his service is terminated until he is returned to and arrives at a proper return port.
(2) A seaman shall not be entitled to receive wages under sub-clause (i) of clause (a) of subsection (1) in respect of any period during which― (a) he was, or could have been, suitably employed; or (b) through negligence he failed to apply to the proper authority for relief as a distressed or destitute seaman.
A seaman incapacitated by accident in the course of duty was formerly by maritime custom entitled to his wages for the whole voyage2.
1 A ship is a wreck if she is so seriously damaged that she ceases to be a navigable ship. The Olympic (1913) p 92 at IOI, 12 Asp MLC 318 at 321, CA.
2 Chandler v. Grievs (1792) 2 Hy Bl. 606n.
Author:
Dr. Ramniwas, Associate Professor, Unitedworld School of Law (UWSL)
Disclaimer: The opinions / views expressed in this article are solely of the author in his / her individual capacity. They do not purport to reflect the opinions and/or views of the College and/or University or its members.
