Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Shipowners' Liability (Sick and Injured Seamen) Convention, 1936 (No. 55) - United States of America (Ratification: 1938)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 1, paragraph 1 (scope of the Convention), together with Article 11 (equality of treatment for all seafarers irrespective of nationality, domicile or race). In its previous comments, the Committee drew the Government’s attention to the effect of the 1982 amendment to the Jones Act (46 USC section 688(b)), which prohibits non-resident foreign seafarers from claiming sickness, injury or death benefits, if they are employed in an enterprise engaged in exploration, development, or production of offshore mineral or energy resources in the territorial waters or waters overlaying the continental shelf of a foreign nation; and when they or their dependants have a remedy available under the law of the nation asserting jurisdiction over the territorial waters, or under the law of either the seaman’s country of nationality or residence. The Committee observes that, contrary to what it stated previously, the Government recognizes in its last report that section 688(b) of the Jones Act, as amended, also precludes a foreign seafarer from bringing a claim under any other maritime law of the United States for maintenance or care. However, the Government states further that section 688(b) does not deny foreign seafarers the right to maintenance and care. It merely requires them to first pursue their remedies under the law of the country that maintains sovereignty over the area where the injury occurred and governs the commercial activities in question, or of the country where the seafarer resides or maintains citizenship. If the seafarer proves that neither of these jurisdictions is competent to provide a remedy, then he will be in a position to pursue a Jones Act claim or a claim for maintenance and care under any other maritime law of the United States. The Government also stated that the amendment concerned foreign offshore workers whose activities and status as seafarers was questionable; these workers had limited ties to the United States, and taking into account their situation, other national jurisdictions constitute a more logical legal forum to assert foreign workers’ claims.

However, the Committee notes that section 688(b) refers in general terms to foreign seafarers employed in enterprises engaged in exploration, development or production of offshore mineral or energy resources. Their activities may include transporting supplies, equipment or personnel. The 1982 amendment may thus have a negative impact on the rights of seafarers covered by this Convention, which in accordance with Article 1 applies to all persons employed on board any vessel ordinarily engaged in maritime navigation. Furthermore, in accordance with Article 11 of the Convention, all seafarers, irrespective of nationality, domicile or race, must enjoy equality of treatment. As the Convention does not allow for the right to protection to be made subject to any prior condition, foreign seafarers should therefore be able to claim for compensation in the same way as national seafarers. In these circumstances, the Committee hopes that the Government will be able to take the necessary measures to amend section 688(b), so as to ensure without any prior condition that all foreign seafarers employed on board any vessel, registered in the United States and engaged in maritime navigation, benefit from the protection accorded by the Convention. It asks the Government to supply in its next report information on any progress made in this respect.