Crew Agreements?January 16, 2013
Yes, crew agreements. Federal law requires that the owner of a fishing vessel sailing from a U.S. port and of 20 gross tons or over must have a written employment agreement with each seaman. The agreement must state the effective dates of the agreement, and “the terms of any wage, share, or other compensation arrangement peculiar to the fishery in which the vessel will be engaged.” It may also include other provisions. I’ll give you a tour of the crew contract I supply to clients.
It begins with the personal data of the crewmember: Full name, mailing address, date of birth, Social, phone.
Then the fact that the ship and the crewmember are entering into a crew contract, and a rough description of the duties he or she will perform: “Crew Member shall perform such duties as are customarily performed by one who holds such a position on other similar fishing vessels operating in the Northwest Atlantic Ocean, and shall render such other services and duties as may be assigned to him from time to time by the Master of the Vessel. Crew Member’s duties include mending and maintaining all associated gear in such as manner that it is ready for fishing. Crew Member understands that if he does not assist in off loading and preparation for the next trip, he is subject to forfeiture of earnings for the trip for which he did not assist in unloading.”
That’s followed by the statement that the crew is hired for one trip at a time, although the contract terms apply to all trips made. Because of this clause, if the sailor is injured the ship can pay him full wages or shares only through that single trip.
The contract makes clear that crew are independent contractors. That way the ship doesn’t have to pay employment taxes.
Then a detailed outline of the plan of compensation, typically stated as a percentage of gross earnings (lay share), and including a careful definition of gross earnings. We make clear that the point of hire is dockside: No pay or compensation for travel.
The crew member then warrants that there is no medical or physical reason why he would be unable to perform all duties. If the sailor is hurt or gets sick, he is to promptly report that to the master. Maintenance (the sum paid to an injured or sick sailor while he convalesces) is limited to $25.00 per day, “the parties agreeing that said amount sufficiently replaces the value of food and quarters otherwise provided on board.” (Did I mention I represent owners?)
Crew agrees to obey all laws and rules. No drugs or firearms allowed, and no visitors without permission. If you misrepresent your skills you can be canned immediately. Finally, a jurisdictional clause, the parties agreeing that no suit will be brought except in Maine. That’s important.
The agreement is signed by the sailor and by the owner. There is good law that the master can sign for the owner. My practice is to make sure the master always signs. Both parties get a copy of the contract.
If there is no written, signed crew agreement, crewmembers can sue the ship for “the highest rate of wages at the port from which the seaman was engaged or the amount agreed to be given the seaman at the time of engagement, whichever is higher.” In addition, the ship loses many of the contractual protections these contracts afford: limiting the time to sue for wages, limiting the voyage pay if there is an injury, controlling the forum and choice of law if there is a suit, and many other terms.
Postscript, United States v. Maine Lobstermen’s Association. A few months back I wrote that there was going to be filed a motion to amend the consent decree reached in this case, in which a judgment, still important today, was reached in 1958. That judgment is the consent decree which prohibits anyone in the lobster industry from colluding with others to set prices, collusion which could include an organized mid-summer tie up. The clerk of court told me the MLA and the U.S. Department of Justice were going to file a joint motion to amend the decree, and in my article I suggested that the way was being paved for an in
dustry-wide effort to organize the fishery so better prices might be obtained.
I just contacted the court for an update, and nothing has been filed. Maybe nothing will be. I’ll continue to follow the story.
Nicholas Walsh is an attorney specializing in maritime law and waterfront matters. He can be reached at 772-2191, or firstname.lastname@example.org.
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