Section 1 Injury, illness, repatriation and death – crew

3.1.1 Liabilities against crew for injury, illness, repatriation and death

3.1.1.1  General comments on crew liabilities

This section describes the cover for liabilities against crew for injury, illness, repatriation and death. A Member may also have an obligation to pay wages to a crew member or to compensate him for loss of personal effects. The cover for those liabilities is defined in Sections 2 and 3 of this Rule.

Crew liabilities constitute a risk which is rapidly increasing. This is an area where close co-operation between the Member and the Club can prevent and limit exposure as well as rising insurance costs.

3.1.1.2  “Crew”

Rule 1 contains a definition of the word “crew”. For the purpose of these Rules it means “any person, including the Master, contractually obliged to serve on board the entered ship”. There may be other people on board who do not qualify as crew under this definition such as a supercargo. Catering staff on passenger ships are often not employed by the shipowner but by the firm who has contractually agreed to operate the catering service. Unless the contract says otherwise, the catering staff is not to be regarded as crew. Hairdressers, shop attendants and other independent staff on passenger ships may belong to the same category depending on the contracts, as may engineers who ride on a ship for repairs or maintenance. Any contract for such persons which affects the Member’s liability, should be submitted to the Club for approval in accordance with Rule 10 Section 2. If the Member’s liability in relation to persons of these or similar categories is not covered under this clause because they do not qualify as crew, cover is provided under Rule 3 Section 7.

3.1.1.3 Crew contracts

According to the definition, crew members should be contractually obliged to serve on the entered ship. Such contracts could be either individual or entered into by unions collectively on behalf of their members. Whatever the nature of the contract, it should be approved by the Club. See comments under 10.2.4.

The cover under this section is for the liabilities which a Member may incur under any such approved crew contract or agreement. Some crew agreements do not contain provisions on social benefits. The extent of the Member’s obligations is then governed by any domestic legislation applicable to the contract of employment or determined in accordance with the law of the flag state.

3.1.1.4 Cover when crew is not on board the ship

Items (a), (b), (c) and (f) of this clause stipulate that the cover is also effective during the time crew members are proceeding to or from the entered ship. The reason for this is that the period of employment usually starts when the crew member sets off on the journey to board the ship to which he has been assigned and does not end until he has returned home. If and to the extent the Member has legal or contractual obligations in relation to a crew member of the nature described in this clause, he is covered for those liabilities even if they arise outside the ship.

The cover is also effective for illness or accident arising while a crew member is on shore leave, for instance if he has a car accident in a port of call. In such a situation it is important that the Club and its local correspondent are informed immediately. This is required so as to ensure that the injured crew member gets instant and adequate medical treatment. The possibilities to exercise any right of recovery against the party who caused the accident also have to be protected. According to Rule 14, the Club is subrogated to the Member’s right of recourse against the responsible party. The Member has an obligation to assist the Club in exercising the right of recovery.

For Members who have crew assigned to the entered ship on a long term basis, the Club may agree to extend the cover to periods when crew members are not serving on board the ship. Additional premium may be charged.

In all situations where liabilities arise in relation to crew members outside the ship, the Member must be able to prove that the crew member was contractually employed to serve on the entered ship.

3.1.1.5 Handling of crew claims

3.1.1.5.1 General handling of crew claims

Any case under this section which is serious or may have a serious liability should be reported to the Club as soon as possible. The Club and its local correspondent are there to help the Member to solve problems which arise and to exercise the necessary monitoring, control of medical treatment provided and related costs. For cases arising, the Club will conduct the necessary investigations to establish the extent of the Member’s legal obligations and will negotiate the claim to a settlement. It is important that Members do not make concessions or commitments to the crew member, his/her estate, unions or media which could prejudice the result of such negotiations. Settlement should only be made against a properly drafted release, thereby preventing further claims from being made against the Member.

3.1.1.5.2 Filipino crew claims

3.1.1.5.2.1 General

The Philippines is one of the world’s main supplier of seafarers and as a result many claims are brought in that jurisdiction both for injuries and illnesses. There are special concerns relating to Filipino crew claims and it is essential to observe the specifics of the handling of those claims in order not to prejudice the position of the Member or the Club. The below is only general advice and the Club should be consulted directly in respect of all specific claims. The Club will assist directly usually through its local correspondents.

Three (3) important points to note when handling Filipino crew claims:

(i) the requirement that a crew member has to report any physical or psychological incapacity to the manning agent within three (3) working days from repatriation and failure to do so may result in benefits under the POEA contract being forfeited

(ii) where the findings of the medical assessments for work-related illness or injury differ, a third doctor is appointed jointly by the crew member and the employer; assessment of the third doctor is final and binding; third doctor referral does not apply when the cause of repatriation is not work-related.

(iii) it is most important to monitor and observe the 120 /240 Day Rule in order not to increase the exposure and liability of the Member or the Club; note that the 120/240 Day Rule may also find application to non-work-related illnesses or injuries, treatment for non-work-related illness or injury must not be continued without consulting the Club. Based on Philippine jurisprudence, the obligation to provide a copy of the final disability assessment and to explain the contents thereof is now vested with the attending company designated physician (CDP) which must also be done within the 120/240 Day Rule.

3.1.1.5.2.2 The 120/240 day rule

(i) there has to be a clear written declaration/justification that further treatment is required beyond 120 days;
(ii) the extension of treatment must be explained to the crew member; but there is no legal obligation to provide the crew member with a copy of the written declaration/justification;
(iii) the CDP must issue the declaration/justification before the lapse of the 120 days, counted from the day of arrival at the point of hire/repatriation which is usually Manila.

In principle the 120/240 Day Rule means that a crew member, unable to work for more than 120 days, is by default considered permanently and totally disabled. As of 2008, the 120 days can be extended to 240 days if medical justification is provided by the company-designated physician (CDP) subject to certain criteria being met:

The treatment should in no case exceed 240 days. A final assessment must be issued before the lapse of 240 days, otherwise, the crew member will be considered permanently and totally disabled by default. The final assessment must meet the following criteria for the 240th day to be acknowledged and legally valid.

(i) full disclosure of the CDP to the crewmember in respect of his/her final assessment, medical condition and extended treatments;
(ii) the disclosure can be personally given, or if not practicable, by any other means such as by mail or email; and
(iii) the assessment must be final, conclusive and definitive.

In 2010 the POEA Standard Employment Contract was amended to state that disability shall not be determined by the number of days that the crew member was under treatment but by the schedule of disability in the relevant contract. In any event, in spite of such amendment, the 120/240 Day Rule must be closely monitored.

In conclusion, it is important that the Club is advised of all relevant cases of medical treatment provided to Filipino crew members in order for the Club, through its correspondents, to monitor treatment at the 30th, 60th and 90th day after the date of injury or date of diagnosis of an illness. This is to make certain that an interim assessment and interim disability grading is conducted and sufficiently justified before the 120th day and that a final disability grading is assessed and confirmed before the 240th day. Medical treatment should not be provided beyond the 240th day nor should treatment be stopped prior to the 120th day without consulting the Club to avoid the risk of liability and exposure being unnecessarily incurred beyond that covered under P&I Insurance.

3.1.1.5.2.3 NLRC/NCMB procedural chart

As noted in the below flowchart there are two (2) parallel arbitration systems in the Philippines: the NLRC (National Labor Relations Commission), referred to as “compulsory arbitration”; and the NCMB (National Conciliation and Mediation Board), referred to as “voluntary arbitration”.

The NLRC is a two-level labour court, the labour arbiters being the first level and the commission being the second level. On the other hand, the NCMB is a one-level court whereby the crew member and the Member appoint a sole arbitrator or panel of arbitrators to adjudicate on their disputes.

The POEA contract stipulates that if a collective bargaining agreement (CBA) has been entered into, disputes should be submitted to the original and exclusive jurisdiction of the voluntary arbitrator or panel of voluntary arbitrators, i.e. the NCMB. In the absence of a CBA, the dispute shall be submitted to the jurisdiction of the NLRC.

3.1.1.5.2.4 SENA

Common in both the NLRC and NCMB is the “SEnA” (Single Entry Approach), which is a mandatory proceeding before a formal complaint is filed.

SEnA is a form of conciliation-mediation intervention, the main objective is to encourage the parties to reach an amicable settlement and prevent the claims or disputes from ripening into an actual legal case. SEnA sets the period for 30 calendar days of conciliation-mediation.

A settlement agreement reached during SEnA is considered final, binding and immediately executory. In the absence of a settlement within the 30-day period, the SEnA will be terminated and a referral form will be issued so that the crew member can proceed with the filing of a complaint in the NLRC or notice to arbitrate in the NCMB.

3.1.1.5.2.5 NLRC procedure, execution, garnishment

The initial step in the NLRC is the filing of the complaint. The complaint, which shall set forth the causes of action and monetary claims of the crew member, shall be raffled to a labour arbiter (first level). The labour arbiter shall hear and resolve the complaint. The position paper, reply and rejoinder, along with the documentary evidences, will be submitted before the labour arbiter.

The decision or award of the labour arbiter is appealable to the commission (second level) within a mandatory period of 10 days from notice. The appeal before the commission opens the entire records of the case for review. An appeal bond which may be secured by a Club Letter of Guarantee, is mandatorily required to be posted.

The decision or award rendered by the commission may still be questioned by filing a motion for reconsideration within a non-extendible period of 10 days from notice. Once the motion for reconsideration is denied, an entry of judgment will be issued and the crew member can move for execution of the decision or award in his/her favour.

A decision or award of the commission may still be elevated before the Court of Appeals (civil court), within 60 days from notice via a petition for certiorari. However, the petition for certiorari filed in the Court of Appeals will not suspend the execution of the decision or award of the NLRC unless a Temporary Restraining Order (TRO) is issued. The granting of a TRO is discretionary to the Court of Appeals, which makes the risk of execution pending appeal extremely high.

While Member’s petition is pending in the Court of Appeals, the commission will refer the records of the case back to the labour arbiter for execution of the decision or award. The labour arbiter, motu proprio or upon motion of the crew member, may order execution and issue the corresponding writ.

The writ of execution will be referred to the sheriff and the Member will be given a maximum period of 30 days from notice to tender the award. After the lapse of the said period, the sheriff can proceed with the garnishment and levy, which shall be enforced against the bank accounts, escrow deposit and properties of the Member’s manning agent.

The sheriff will deposit the collected award to the NLRC cashier. Upon motion, the labour arbiter may order the NLRC cashier to release the award to the crew member. Unfortunately, the crew member can freely dispose of the award and the lawyer can collect his/her attorney’s fees despite the pendency of the Member’s petition for certiorari in the Court of Appeals.

Where the executed decision or award is totally or partly reversed or annulled by the Court of Appeals or the Supreme Court with finality, the Member’s remedy is to initiate restitution proceedings before the labour arbiter to recover the collected award. A process which is very rarely successful.

3.1.1.5.2.6 AMOSUP/NCMB procedure, execution, garnishment

As a preliminary step to voluntary arbitration in the NCMB, the crew member must submit to the grievance procedure under the CBA. AMOSUP, which is the leading union for Filipino seafarers and an affiliate of ITF, handles most of the grievance proceedings. A private grievance is conducted between the parties for those cases where the Union has no office or official representative in Manila.

If the grievances are not resolved through the procedure provided for under the CBA, a deadlock is declared. The crew member can then initiate voluntary arbitration by serving a Notice to Arbitrate (NTA) to the Member through the manning agency, with a copy to the NCMB.

The NCMB will refer the NTA to a conciliator-mediator who will issue a notice of conference and aid the parties in reaching a voluntary settlement of their disputes. If voluntary settlement fails, the parties will select and appoint a sole arbitrator or panel of arbitrators to hear and resolve their disputes. Parties will execute a Submission Agreement which shall state the issues for arbitration, the name/s of the chosen sole arbitrator or panel of arbitrators and an agreement to abide by the decision or award.

Special considerations have to be taken into account during the selection of arbitrators, such as the requirements of the CBA, professional/employment background of the arbitrator (if from the employer or labour sector), reputation (if pro-seafarer or pro-management), case load and previous decisions.

If the CBA does not specify the number of arbitrators, the case shall be heard and resolved by a sole arbitrator, unless the parties agree otherwise. Each party shall nominate not more than 5 names from the list of active accredited voluntary arbitrators of the NCMB. The common name in the list shall be appointed as the sole arbitrator, in the absence of a common name, then selection will be by raffle or draw lot.

In case of panel of arbitrators, each party shall nominate their member which shall be free from interference from the other party. The chairman shall be selected in the same manner as a sole arbitrator is appointed.

The case will be set for hearing once a sole arbitrator or panel of arbitrators is selected and appointed. The sole arbitrator or panel of arbitrators shall conciliate and mediate to aid the parties in reaching a voluntary settlement. If no settlement is reached, parties will be required to submit a position paper, reply and rejoinder, along with the documentary evidences.

A decision or award of the sole arbitrator or panel of arbitrators may be questioned by filing a motion for reconsideration within a non-extendible period of 10 days from notice. Once the motion for reconsideration is denied, the crew member can move for execution of the decision or award in his/her favour.

An entry of judgment, as in the NLRC, is not available in the NCMB proceedings because a decision or award of the sole arbitrator or panel of arbitrators is regarded as a result of a voluntary process, hence, final and immediately executory.

Note that a decision or award of the sole arbitrator or panel of arbitrators can be elevated before the Court of Appeals via a petition for review, within a period of 15 days from notice. The filing and pendency of the petition for review in the Court of Appeals shall not stop the execution of the decision or award of the NCMB unless a TRO is issued. As noted, the granting of a TRO is discretionary to the court, which makes the risk of execution pending the petition for review extremely high.

Despite the pendency of Member’s petition in the Court of Appeals, the sole arbitrator or panel of arbitrators may issue a writ of execution to enforce the decision or award upon motion of the crew member.

The NCMB shall deputize the NLRC sheriff to enforce the writ of execution. Unlike in the NLRC where the Member may have a grace period of 30 days from service of the writ, payment of the sole arbitrator or panel of arbitrators’ award is immediate, again being a result of a voluntary process.

A motion to release the collected award is not necessary in the NCMB. This is so because the sheriff can turn over the collected award directly to the crew member, if present during payment which is most often the case. Thereafter, the crew member can freely dispose of the award and the lawyer can collect his/her attorney’s fees even if the payment is conditioned on the outcome of Member’s petition in the Court of Appeals.

Where the executed decision or award is totally or partly reversed or annulled by the Court of Appeals or the Supreme Court with finality, Member’s remedy is to initiate restitution proceedings before the arbitrator. Again, a procedure which is very rarely successful.

3.1.1.5.2.7 NLRC / NCMB execution and restitution

Since the decisions rendered by the NLRC and the NCMB are final and executory after a denial of a Motion for Reconsideration, unless a TRO is issued by the Court of Appeals, execution and garnishment are major problems under Philippine legislation. This is particularly so because the Member and his/her manning agent are jointly and severally liable.

Restitution is a major challenge both in the NLRC and NCMB. Since restitution does not work in practice, the International Group of P&I Clubs is, together with local and foreign interests, promoting the establishment of an escrow regime which would solve some of the major concerns encountered with Filipino crew claims. The escrow regime would also eradicate restitution proceedings.

While a new law, The Seafarers’ Protection Act, was adopted in the Philippines which aimed at limiting any legal fees to 10% of the compensation or benefit awarded to the crew member, it appears that enforcement of the law is still a major challenge.

Pre-mature execution and restitution can be avoided once an escrow regime is established. In the meantime, the Member should consider strengthening the Pre-Departure Orientation Seminars, being conducted by manning agents so that the crew members can be educated on how they can properly address their grievances through the appropriate Philippines government agencies and authorities without resorting to legal services of a counsel.

3.1.1.5.2.8 Practical approach in handling Filipino crew claims and avoiding crew claims

• Conducting an enhanced pre-employment medical examination (PEME)
• Open and constant communication with the crew member and his/her family;
• Make presence felt at the airport, hospital or wake;
• Close coordination with the post-med clinic;
• Payment of entitlements on time such as sick pay, reimbursements or burial allowance;
• Prompt approval on medical procedures;
• Assist in processing benefits contractually due;
• Education of the crew members through Pre-Departure Orientation Seminars, crew conferences and personal meetings

3.1.1.6 Other insurance

A shipowner may be obliged, by contract or law, to take out special insurance to meet his obligations in relation to a crew member or to provide him with certain benefits. If the authorities cannot be convinced that the P&I entry with the Club is sufficient in that respect, the Club will advise the Member as to how the additional insurance should be arranged. The cover under such additional insurance should be exhausted before compensation is admitted under the P&I policy. As the premium for extra insurance is paid by the shipowner, any payment under that insurance to or on behalf of the crew member should reduce the Member’s obligations.

Furthermore, there may be social insurance schemes applicable to the case, under which compensation for costs or wages may be provided. It should be checked whether a crew member is covered by such a scheme. If so, the Member’s obligations to pay compensation should be reduced by any amount recoverable.

3.1.1.7 Common Law liabilities can be insured separately or together with other crew risks

Under item (e) of this section there is cover for Common Law liabilities incurred by the Member in relation to a crew member. A Member can either insure all risks listed in this section or restrict the cover to the non-contractual obligations under item (e). The reduced cover under the latter alternative means that the Member remains self-insured for all his contractual obligations. Any agreed exclusions of liability under this section should appear as special conditions in the insurance policy (see the comments under 20.3). If a Member who has excluded items (a)-(d) becomes liable to pay his contractual liabilities as part of a Common Law liability under item (e), the compensation from the Club will be reduced accordingly.

3.1.2 Liability to pay compensation in connection with injury, illness or death

The cover under item (a) is for any amount the Member may be liable to pay by final judgment, settlement or as a consequence of a crew agreement in connection with injury, illness or death. Fixed amounts are often stipulated to be paid to a crew member for injuries or to his estate if he dies. These amounts are sometimes specified in the crew contracts or follow from national legislation applicable to the contract. One of the reasons why the crew contracts should be submitted to the Club for approval in accordance with Rule 10 Section 2, is to check that the amount of compensation is reasonable and in accordance with normal practice and applicable law. There have been cases where the amounts have been unacceptably high. A Member may be left without or with only reduced compensation if he fails to obtain the Club’s prior approval of the contractual terms. Upon request the Club can advise Members of the compensation amounts and other social benefits which follow from applicable domestic legislation.

As regards the importance to effect payment of compensation or settlement to the right party and against a suitable release, especially in death cases, see comments under 3.2.4.

3.1.3 Liability to pay costs in connection with injury, illness or death

3.1.3.1 General views on costs for crew care

Contract, statute or Common Law make the shipowner liable to pay a variety of costs to care for a crew member who is injured, falls ill or dies.

For the obligation to arise it is not necessary that the condition is the result of the shipowner’s negligence. It is sufficient to establish that the condition exists. If, however, the crew member contributed to the condition by negligence, the extent of the shipowner’s obligations may be reduced in proportion to the crew member’s share of responsibility.

Item (b) of this section provides cover for many of the shipowner’s obligations. The section states that the expenses should be “necessarily incurred”. This implies that only those costs that the Member is legally obliged to pay are reimbursed. Sometimes the special and delicate nature of those costs makes it difficult to draw a distinct line. Still, the concept of mutuality, on which the P&I Insurance is based, calls for the equal treatment of Members. Therefore, some guidelines and examples are given below.

3.1.3.2 Legal obligation to cure

Cure is generally the obligation to provide necessary medical care and services to sick or injured crew members. Failure to comply with that obligation may impose large liabilities upon a Member and this may include punitive damages and liabilities beyond the scope of P&I cover.

The legal obligation to provide medical care is often limited to a certain number of months. The need for care may, however, continue after the expiration of that period. Such a serious case should be brought to the Club’s attention at an early stage. Through its local correspondent, the Club will help the Member to investigate the options available, for instance repatriation of the crew member as soon as declared medically fit to travel.

It is important for the Member to follow the crew member’s medical condition and recovery closely. The Club should be kept informed so that appropriate action may be taken if necessary.

The Club does not have a list of approved doctors. Suitable and qualified doctors and experts can be consulted instantly through the Club’s local correspondent.

3.1.3.3  Specialist care

Costs of specialist care are covered if required and confirmed by the medical advice. Preferably, such advice should be reconfirmed by the medical examination of an independent doctor appointed by the Club’s local correspondent. It is essential that the Club or its correspondent is promptly advised to provide assistance in finding the best medical facility based on the merits of the specific case.

3.1.3.4 Hospital care

Large hospital bills should be submitted to the Club or its correspondent before being paid. In some countries, for instance the U.S.A., there are firms that specialise in checking and, where justified and possible, reducing hospital bills. The best result is achieved if the firm is allowed to follow the case from the moment the decision is taken to bring the crew member to hospital. The Member or the local ship agent should, therefore, inform the Club or its correspondent as soon as possible.

Hospitals may require a guarantee for the costs before accepting a crew member as a patient. In such a case the Club should be contacted as a matter of urgency.

When asking for compensation from the Club for hospital and medical costs, the Member should present a log extract or report from the Master setting out the details of the event such as the date and time for reporting sick, symptoms, treatment administered on board, contacts with doctors, time and reason for signing off etc.

3.1.3.5 Maintenance

A Member is generally obliged by law to pay maintenance to a crew member who has signed off the ship on account of injury or illness. The maintenance is an agreed daily amount to compensate the crew member for the free meals and lodging he would have enjoyed on board. Such an obligation is covered under this clause.

3.1.3.6 Preventive medical examination or treatment

3.1.3.6.1 Pre-Employment Medical Examinations (PEME)

To come to terms with and minimise the risk of crew members being employed who are neither psychically nor mentally fit to serve on board a vessel the Club introduced an enhanced PEME Programme in 2010 as a service to its Members to facilitate proper medical examinations beyond that required by local authorities and national legislation. As of 2024 that PEME Programme is extended to a number of new jurisdictions. Further information can be obtained on the Club’s website.

3.1.3.6.2 Vaccination

The costs for preventive medical treatment such as vaccination are normally not compensated. If vaccination is required to protect the rest of the crew at the outbreak of an infectious disease on board which might cause liabilities covered by the Club, the costs for the vaccination may be considered for compensation under Rule 8 Section 2.

3.1.3.6.3 HIV

A crew member infected with HIV may constitute a potential risk for the Member. It would then seem reasonable and even prudent that an HIV test be made a routine part of any standard recruitment procedure, always provided that it is not in violation of applicable legislation and that the person’s written consent to the testing is obtained.

Some countries may require crew members to present an HIV clearance certificate before being allowed to go ashore. The costs of obtaining such certificates are not compensated.

3.1.3.6.4 Drug and alcohol policy

Consumption of alcohol or other drugs on board ships causes damage and affects liability. Charterers of tankers and other ships carrying pollutant cargoes, therefore, often request clauses to be inserted in charterparties, according to which the Owner assumes an obligation to prevent or detect such consumption and becomes liable for any loss or damage that arises in spite of this. There are several such clauses in the market and Members may contact the Club for assistance.

The Group Clubs are, in principle, prepared to accept a clause according to which Members confirm that they have adopted a written drug and alcohol policy which meets with or exceeds the standard in the Oil Companies International Marine Forum (OCIMF) Guidelines for the control of drugs and alcohol on board ships. The undertaking may also be given in a separate “Blanket Declaration”. Upon request, the Club can assist Members to obtain a copy of the OCIMF guidelines. The Club’s recommendation is to only accept such a clause where the Member is confident it can show that such a written company policy exists and has been implemented on board the Member’s ship(s). Preferably, the policy should take into account the individual features of the service operated, as well as any obligations or restrictions regarding the testing of crew members for drugs or alcohol routinely or at random pursuant to applicable laws or contracts of employment.

Costs for performing such tests, i.e. whether to comply with mandatory law or to implement an adopted written policy, are not compensated under P&I Insurance.

3.1.4 Asbestosis, industrial deafness and other vessel-related long-term illnesses

3.1.4.1 General comments on working environment-related claims

Claims may be filed for long term injury or illness related to working on board vessels. Such claims may be for exposure to asbestos in engine rooms or cargo holds, occupational noise-induced hearing loss, vibration white finger, poisoning by carbon monoxide from exhaust fumes in engine rooms or from equipment used to discharge cargo from the holds or by inhalation of welding rod fumes.

Asbestosis claims are mainly filed in the U.S.A., but are also common in the U.K. and Australia. In jurisdictions where such claims are filed, the Club has access to lawyers experienced in the handling of such claims.

The claims may be filed by or on behalf of crew members. The Member’s liability, if any, is covered under this section. There may also be claims of a similar nature from longshoremen. The liability is then covered under Rule 3 Section 7. See comments under 3.7.2.7.

3.1.4.2 Exposure on several ships

Exposure to the source of an illness may take place over a considerable period before it ultimately manifests itself. A good example of this is asbestosis. As a result, the exposure may occur during service on board a number of different ships. Claims are, therefore, generally filed against every shipowner on whose ships the crew member or longshoreman has served and over which jurisdiction can be obtained. When claims are filed against several shipowners and the claimant succeeds, he may recover judgment for the whole of his loss against any one or more of the defendants, if their liability is held to be joint and several. The shipowner who has to pay will be faced with the prospect of recovering contributions from the other defendants, one or more of whom could be insolvent. The contribution is normally recoverable in proportion to the time of service on board each ship involved and will be handled by the respective P&I Club involved.

In order to protect the Member’s interests in relation to all parties concerned and in view of the late filing of such claims, it is important that the Club is promptly notified in accordance with Rule 10 Section 4. This is also required so as to co-ordinate the handling of any new claim with those already pending and with other interests involved. Lack of co-ordination may result in judgments which could seriously damage the interests of the Club and its members.

When a claim of this nature has been filed so late in the day that the ten year time bar applies in accordance with Rule 15, the question of compensation for liabilities, costs or expenses will be decided under Rule 19, the Omnibus Rule.

3.1.4.3 Recovery from manufacturer

If the manufacturers or suppliers of the asbestos were not initially named as defendants by the claimant, they may be impleaded by the shipowners. This will protect the shipowners’ right to seek indemnity from the manufacturer and to recover any amount paid.

3.1.4.4 Avoidance of occupational hazards

It is important that active steps be taken to avoid or minimise the exposure of crew members and longshoremen to conditions on board which may cause them to contract occupational illnesses. It follows from Rule 10 Section 1 that applicable safety regulations must be adhered to. The ship’s officers can actively contribute to avoiding such claims by, for instance, ensuring that adequate ear protection is available in the engine room and that it is encouraged to be used by those working there and that noisy areas are labelled with clear warning signs.

3.1.4.5 Avoidance of excessive contractual liabilities

Members are advised not to enter into any contracts, agreements or no-fault schemes which would extend the liability for occupational disease unless otherwise approved by the Club.

3.1.5 Repatriation

3.1.5.1 Performance of repatriation

Repatriations are carried out following medical assessment and consent by the treating medical facility. Practically all repatriations for medical purposes are made by air. The costs are compensated for at economy class rates, unless more expensive alternatives are prescribed for medical reasons. Reduced fares offered by airlines for the repatriation of seamen should be used when available. Compensation for repatriation by air ambulance requires the advance approval of the Club which can assist in making suitable arrangements.

3.1.5.2 Escort  

Costs for an escort by a nurse or doctor are compensated if prescribed for medical reasons. It may be preferable to fly out escorts from the crew member’s homeland for language reasons and for preparation for care to be carried out following the repatriation. The Club will assist in making suitable arrangements and has a network of medical practitioners for that purpose.

Costs for relatives to visit a sick or injured crew member are compensated only if the visit has been approved beforehand by the Club. If the presence of a relative can substitute an escort otherwise necessary for medical reasons, the costs may be recoverable under Rule 8 Section 2.

3.1.6 Funeral costs

3.1.6.1 Funeral costs covered

The word “funeral” under item (b) means more than disposal of the body at the place where death occurred or where the body was taken off the ship. In some countries with a tropical climate, disposal is prescribed to take place immediately and on the spot. The shipowner has to comply with such regulations and they have to be accepted by the family of the deceased. In most places, however, the body may be returned to the homeland of the deceased to be buried there. Funeral under this item includes the costs of preparing and bringing the body home. It is acceptable for the Member to obtain and follow any reasonable wishes the family of the deceased may have in that respect.

Cremation should be performed, if allowed, in the country where the death occurred and if approved by the family of the deceased. Costs for air transport of the ashes or the body are covered. Cover includes the sending home of the personal belongings of the deceased.

The funeral costs compensated are those which are necessary. As a rule, a Member will not be compensated if he has paid for wreaths, flower arrangements or other traditional decorations. Advertisements, food, mourning clothes, music and other ceremonies are not compensated. They are generally outside the shipowner’s legal or contractual obligations.

3.1.6.2 Life insurance paid by Member to cover funeral costs

As previously mentioned, a shipowner may have to arrange and pay for extra life insurance on behalf of crew members. The purpose of such a life insurance is to provide money to pay for funeral costs. It should be used accordingly. If not, the family of the deceased is compensated twice, for which there is no cover. It also follows from Rule 11 Section 6 that any such life insurance should be exhausted before any compensation is due.

3.1.7 Travelling expenses for substitutes

When it is necessary to send a substitute to replace a sick, injured or deceased crew member, the costs are covered under item (c) of this section. “Necessary” in this context means that the ship would not be properly manned without the substitute and that the problem cannot be solved by upgrading crew members already serving on board.

The sending out of a substitute must be linked to the sickness, injury or death of a named crew member. When seeking compensation from the Club for such costs the Member should, therefore, present a log extract or report from the Master to substantiate this.

If the crew member is due for replacement by a substitute because of vacation or for other reasons unrelated to his health condition and he then happens to fall ill, the costs of bringing the substitute remain the Member’s running costs and are not compensated.

Costs necessarily incurred to find a substitute, for instance fees charged by crewing agencies, are generally compensated as are costs such as costs incurred in obtaining a VISA required for the service on board.

The costs of economy class tickets at reduced fare price, if available, are compensated. The cover includes costs for maintenance and accommodation but not for working gear, PEME, flag state certificates, national certificates or pre-departure orientation seminars which are all considered operational costs.

The substitute may not necessarily be sent to the port where the replaced crew member fell ill, was injured or died. Cover is provided to send only one substitute per crew member. If a temporary replacement is subsequently followed by a permanent replacement, only the costs of bringing one of them will be reimbursed. That would ordinarily be the first substitute but the Club’s discretion is exercised on a case by case basis depending on the required rank of the substitute but also ship safety regulations.

3.1.8 Relatives of crew members

3.1.8.1 Status of crew relatives

A crew member’s relative does not qualify as crew under the definition in Rule 1 (see comments under 1.4.1), as there is no obligation to serve on board the entered ship. The fact that regulations in many countries require crew relatives to be included in the crew list does not make them crew members in the sense of these Rules.

A relative of a crew member is treated as being on board the ship to provide social company to a crew member, not for the purpose of carriage. Therefore, a relative is not a passenger under the definition in the Athens Convention (see comments under 3.5.2). Still, it cannot be excluded that in some jurisdictions relatives on board may be legally considered to qualify as passengers. Where a Member becomes liable under legislation applicable to passengers, he is covered under Rule 3 Section 5.

Under these Rules, a crew relative is considered to be an “other person” under Rule 3 Section 7, and liabilities for injury, illness or death of a relative, for example due to negligence (in tort), other than as a passenger is thus covered under Rule 3 Section 7.

3.1.8.2 Member’s precautionary measures

3.1.8.2.1 Application to Stay On Board

The Member may wish to make it a condition for allowing a relative or other person on board that an Application to Stay On Board is signed in which the Member’s obligations are reduced or excluded so far as may be permitted by law. The terms of an Application to Stay On Board may be set aside if they are in violation of compulsory legislation or there is a legitimate claim caused by fault or negligence on behalf of the vessel. Therefore, there is no requirement from the Club that an Application to Stay On Board must be signed. However, it is strongly recommended since it ensures that the applicant takes out adequate personal insurance cover. The Club can supply a suitable text on request.

3.1.8.2.2 Cover for loss of hire during diversion

As described in the comments to Rule 3 Section 11, the Member has an obligation to divert if on doctor’s orders an injured or sick person requires urgent medical care ashore. The cover is limited to the additional costs of the diversion. Rule 11 Section 2 (j) excludes compensation for loss of time or hire.

3.1.9 Repatriation of crew after total loss, CTL or major casualties

Following the total loss or Constructive Total Loss, “CTL”, of the entered ship or after a major casualty, the crew may have to be repatriated. The costs are covered under item (e) of this section. It may be necessary to charter a plane or a bus. The Club should be consulted to arrange the most suitable solution. If repatriation is made by regular flight, the Club will compensate the costs of economy class tickets at reduced fare, if available.

The cover includes necessary maintenance and accommodation during the repatriation.

Crew members may be required to remain in attendance to supervise repairs or attend court hearings. Increased costs caused thereby are generally compensated under the Hull policy.

Costs of repatriating the crew after an entered ship has been sold are not covered.

3.1.10 Common Law liabilities

Over and above the allowance for maintenance and cure to which a crew member is entitled by contract or law, a crew member is generally free to file a Common Law claim against the shipowner for damages based on negligence (in tort). If the Member is found liable, cover is provided by item (e) of this section.

A Member may limit its cover for crew liabilities to those based on negligence (in tort) under item (e). See comments under 3.1.1.7.

Common Law liabilities in relation to “others”, including but not limited to crew relatives, are covered under Rule 3 Section 7. See comments under 3.1.8.1.

3.1.11 The U.S. Jones Act

Item (e) is applicable to liabilities incurred by the Member under the U.S. Jones Act of 1920. This Act gives a qualifying seafarer, known as a “Jones Act” seaman, a cause of action against the shipowner for injuries or death sustained in the course of their employment. A crew member will qualify as a “Jones Act” seaman if they spend 30 percent or more of their time in the service of a vessel on navigable waters. Under the Jones Act, the shipowner is liable to pay compensation if the injury or death was caused by his negligence. Even the slightest degree of negligence is sufficient to establish liability. For the seaworthiness of the ship, her owner has an absolute duty not predicated upon negligence to provide a vessel (including appurtenances and crew) reasonably fit for their intended purpose. The protection under the Jones Act has been extended to foreign seamen if they can show that the facts and circumstances of the accident have a substantial connection with the U.S. The Act provides the crewman a right to trial by jury. The jury will decide the question of liability and the extent of compensation. Juries are notorious for awarding generous compensation. In cases of this nature the Member’s interests will be looked after by the Club’s lawyers. To achieve a favourable result they depend on full co-operation from the ship’s officers to produce facts and evidence and even to testify in court. Preservation of evidence and information at the time of an incident should therefore be given high priority. According to Rule 8 Section 1, the Member will be compensated by the Club for the defence costs and for the costs of bringing witnesses.

3.1.12 Class actions

Under Rule 23 of the U.S. Federal Rules of Civil Procedure, actions brought by several claimants out of the same event can be consolidated to form a class action. In that way it is possible for them to be represented by one lawyer and have their cases decided at one proceeding.

A class action can be brought for one category of claimants, for instance crew members seeking compensation under a crew contract. It may also include several categories if their claims arise out of the same event such as death or injury of crew members, passengers and/ or longshoremen caused by a fire on board.

The United State Supreme Court has issued several recent opinions which address various issues pertaining to class actions and the legal landscape in this area of the law is expected to continue to evolve with the expectation that the courts will restrict these actions based on limitations of personal jurisdiction.

There have been relatively few U.S class actions involving shipping, although the cruise industry has been a target in at least one such action, and there was also an unsuccessful class action against several car carriers for alleged antitrust violations which was dismissed due to the pre-emptive effect of the U.S. Shipping Act 1984.

There may be similar types of consolidated actions under the procedural rules of jurisdictions other than the U.S. The Club and its lawyers will handle the Member’s defence against any class action brought in a case likely to fall within these Rules. The Club will then decide whether it is in the Member’s best interest to oppose or accept a motion for class action.

3.1.13 Repatriation under The Maritime Labour Convention 2006

The ILO Maritime Labour Convention (“MLC”) entered into force on 20 August 2013 with amendments of 2014 in force on 18 January 2017. Appendix II Rule 2 Maritime Labour Convention (2006) Extension Clause refers to liabilities for repatriation of crew under the MLC that are not covered elsewhere under the Rules, namely in the event of (1) the shipowner not being able to fulfil their legal or contractual obligations by reason of insolvency or any other similar reason, (2) the seafarer not giving consent to go to a defined war zone or (3) the seafarer’s employment being terminated in accordance with an industrial award or collective agreement, or termination of employment for any other similar reason. Obligations met are not poolable but instead limited to the Club’s retention in the Group pool. Payment is provided on the member’s behalf and the Club is to be reimbursed in full for any claim paid. The pay-to-be-paid principle does not apply, nor do certain policy defences.