Solicitud directa (CEACR) - Adopción: 2011, Publicación: 101ª reunión CIT (2012)

Convenio sobre las obligaciones del armador en caso de enfermedad o accidentes de la gente de mar, 1936 (núm. 55) - Djibouti (Ratificación : 1978)

Articles 2(2)(b) and 6 of the Convention. Exclusion from liability – Wilful misconduct of the seafarer. The Committee notes that, under the terms of section 123 of the Shipping Code, the seafarer must repay the cost of repatriation to the shipowner if he is injured or sick as a result of his own wilful act. It also notes that, under section 41 of the Code, in such a case, the captain is only obliged to provide the seafarer with food and all necessary care until the time of his disembarkation. The Committee draws the Government’s attention to the fact that, even though Article 2(2) of the Convention allows national law to make exceptions regarding shipowner liability in the event of sickness or injury of the seafarer in cases where such sickness or injury is due to wilful act, default or misbehaviour of the seafarer concerned, Standard A4.2, paragraph 5(b), of the Maritime Labour Convention, 2006 (MLC, 2006), which revises Convention No. 55, limits exceptions regarding shipowner liability to cases of injury or sickness due to the wilful misconduct of the seafarer. The preparatory work for the MLC, 2006, concluded that a narrow interpretation had to be given to these terms as the rights of individual seafarers were involved. Two elements were required to establish the existence of wilful misconduct: intentionally doing something which should not be done; and with knowledge of the probable result or with a wanton and reckless disregard of the possible result (see International Labour Conference, 94th (Maritime) Session, February 2006, Provisional Record No. 7, Part I, paragraph 771). The Committee requests the Government to clarify the scope of sections 123 and 141 of the Shipping Code so that it can evaluate whether the restrictions on shipowner liability established by the above sections apply only in cases of wilful misconduct containing the two elements referred to above.

Articles 4(3) and 5(3). Limitation of shipowner liability – sickness insurance. The Committee notes that, under section 139 of the Shipping Code, sick or injured seafarers are covered by the general scheme for occupational accidents and diseases from the time of disembarkation. It notes that if seafarers are left ashore outside national territory, they retain the right vis-à-vis the vessel to medical care and wages until the time of repatriation. The Committee recalls that Articles 4(3) and 5(3) of the Convention state that if there is in force in the territory in which the vessel is registered a scheme applying to seafarers of compulsory sickness insurance, compulsory accident insurance or workmen’s compensation for accidents, national laws or regulations may provide that a shipowner shall cease to be liable in respect of a sick or injured person from the time at which that person becomes entitled to medical and cash benefits under the insurance or compensation scheme. It notes that such sharing of liability between the shipowner and the compensation scheme has been established in national law in respect of cases of occupational accident or disease. Nevertheless, the Committee notes that the Shipping Code does not contain any provisions relating to expenses of sick or injured seafarers being covered by the general sickness insurance scheme. However, it is the Committee’s understanding that such a scheme currently exists in Djibouti. It notes the adoption of Act No. 212/AN/07/5ème L of 19 January 2008 establishing the National Social Security Fund (CNSS), section 3 of which states that the CNSS is responsible for the provision of daily allowances and medical benefits. The Committee therefore requests the Government to provide further information on health care and cash subsistence payments to which sick or injured seafarers are entitled from the time of disembarkation or, if applicable, from the time of repatriation.

Article 8. Measures for safeguarding property left on board by sick, injured or deceased seafarers. With reference to its previous comments, the Committee again requests the Government to include provisions in national law requiring shipowners or their representatives to take measures for safeguarding property left on board by sick, injured or deceased seafarers, and to keep the Office informed of any developments. It recalls that Standard A4.2, paragraph 7, of the MLC, 2006, imposes an identical obligation on the shipowner and also provides that measures must be taken for returning property to the seafarers concerned or to their next of kin.

Part V of the report form. Application in practice. The Committee requests the Government to provide a general description of the manner in which the Convention is applied in practice, including statistics for the next reporting period relating to: (1) the total number of seafarers serving on vessels covered by the Convention; (2) the number of seafarers who have been assisted pursuant to the provisions of the Convention, distinguishing if possible between persons left ashore in the territory of Djibouti and those left ashore elsewhere, and also between occupational accidents and diseases, on the one hand, and other accidents and diseases, on the other; and (3) the total expenditure incurred by shipowners in respect of their liability.

Furthermore, the Committee hopes that the Government will soon be in a position to ratify the MLC, 2006, which establishes an up-to-date and comprehensive legislative framework for regulating seafarers’ living and working conditions, promotes the creation of a level playing field for shipowners, and reproduces, in Regulation 4.2, Standard A4.2 and Guideline B4.2, the principal rules laid down by Convention No. 55. The Committee requests the Government to keep the Office informed of any decisions taken in this respect.