● Crew Management
● Course Code – LP0071
1. Andreas only speaks Portuguese and the contract is in English with an English jurisdiction clause which reads as follows: “All disputes are to be heard in England, unless the dispute relates to any issue of employment which will be governed by the laws of the Dominican Republic, unless you are resident in the Dominican Republic in which case the contract will be governed by the laws of North Korea. In the event that a claim is brought, you agree to indemnify the ship-owners against any losses, including legal expenses, incurred by the ship-owner and not to take any further action unless permission has been granted by the ship-owners.” Why is this clause unenforceable?
Maritime law has developed during the course of time and utilised the benefits of various existing national and international laws, in some specific subjects it is agreed between commercial parties that a common form of the law prevails in order for process not to become convoluted; this however does not apply in employment law. In the case of Andreas there are a number of factors which lay applicable to the laws and contractual stipulations which will be considered to uphold the law. The first factor is under no circumstances should a contract provide two different laws that govern the same terms and conditions given to one party. This would prove illogical and in many cases would be void for uncertainty. Should this be a case in the Dominican Republic and their government decide to agree to the laws of South Korea then the foreign law is determined as an issue of fact. The consequence for the owners would be a costly as they would have to be sure the laws of the respective countries nominated would be similar, such an exercise would prove costly and require expert evidence to the court. Another factor is if the contract does not specify a choice of law, there may be a conflict if a dispute arises as to which national laws apply. The choice to opt for different jurisdictions, albeit legal, is double edged. Employment law prevents employment contracts from being concluded on a “choice of law” terms. This protects the welfare of the employees. Another cost to consider would be that a person domiciled in a contracted state may be sued in another contracts state. Should there be cause for a claim to be brought to the ship-owner the employee cannot indemnify them against any losses, different courts have different rules for establishing whether or not a defendant has consented to the jurisdiction, the contract would be subject to a legal quagmire given the various clauses and clearly not in the best interests of the seafarer and most definitely be fair contract agreement. The ship owners will have a legal obligation to not to include any clauses where they cannot be simply “disclaimed via contract terms”. This is a principle in the law of torts as the owner is governed by their Health and Safety requirements by ensuring and enforcing the best practises are adopted on board the ship. Finally from an insurance perspective a company will have the respective insurance policies in place which are designed to act as a “safety net” and cover all potential liabilities. This most certainly should not be burdened upon the crew and would be a clear violation of employment law and the law of the respective land. In short Andreas` COE wouldn`t be enforceable as it would not suit the interests of either party for these reasons. 2. Mathew, a 59-year-old ship’s captain, approaches you with a copy of the European Working Time Directive. He is concerned that you have not been following the provisions. How would you advise him?
Matthew would be advised based on the extracts 3.176 General employment law section as follows - The European Union has adopted a raft of measures in the domain of employment legislation and regulation. The Working Time Directive, which has caused concern with certain European states for its...
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