Maritime Labour Law – Labour Law for Captains and Seafarers
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Maritime Labour Law – Your Rights as a Captain or Seaman at a Glance
The working life of seafarers and captains is unique in many ways. The legal framework for seafarers also differs from general labor law, as the Maritime Labor Act (SeeArbG) provides special regulations for captains and crew members. Here you will find a clear summary of the most important features and regulations of maritime labor law.
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3Scope of the Maritime Labour Act (SeeArbG) –
What applies to ships and flag law?
The Maritime Labour Act (SeeArbG) regulates working conditions on merchant ships, i.e. sea-going vessels that are used for commercial maritime purposes. The relevant types of ships include cargo ships, passenger ships, tugs, salvage ships and offshore installation vessels. Ships operated by authorities or the navy, as well as offshore facilities and inland vessels, are not subject to the SeeArbG, but to the respective national labour law.
With regard to the application of law at sea, the SeeArbG generally applies to ships under the German flag. This law also remains valid for German ships on international waters. A distinction must be made between public and private labor law. Public regulations such as occupational health and safety follow the flag statute according to Art. 92 Paragraph 1 Clause 1 of the UNCLOS, with only a few exceptions. Under private law, the Rome I Regulation is mainly applied, according to which the law of the usual place of work applies or, if this cannot be determined, the law of the hiring branch. In rare cases, the applicable law can also be specified contractually (Art. 8 Rome I Regulation).
In summary, the SeeArbG applies primarily to commercially used sea-going vessels under the German flag.
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Social Law for Seafarers – What You Should Know
German social security law generally applies to crew members on ships flying the German flag. This means that all seafarers who work on German ships are automatically included in the German social security system. In addition, German seafarers who work on ships flying a foreign flag have the option of voluntarily taking out social insurance in Germany in accordance with Section 2 Paragraph 3 of the Social Security Code (SGB IV). This means that German social security law generally applies to crew on ships flying the German flag.
Employment relationship in maritime labour law –
Your employment relationship at sea
In maritime labour law, the employment relationship of crew members is referred to as an employment relationship, as regulated in Sections 28 to 80 of the Maritime Labour Act (SeeArbG). The classification of an employment relationship as an employment relationship follows Section 611a of the German Civil Code (BGB). Accordingly, crew members who are employed as employees are subject to general labour law, unless the SeeArbG provides for different provisions.
Interestingly, the Seafarers' Employment Act can also apply to self-employed seafarers under certain conditions, as set out in Section 148 of the Seafarers' Employment Act. The employment relationship can be with the shipowner or with another employer. According to the legal text in Section 28 of the Seafarers' Employment Act, the term "shipowner" is often used, which is defined as the owner or operator of the ship according to Section 4 of the Seafarers' Employment Act and assumes all employer obligations.
According to Section 28 Paragraph 1 Sentence 1 of the Seafarers' Employment Act, an employment contract must be concluded in writing, although the prevailing opinion also recognizes oral contracts as valid in order to ensure the protection of employees. In addition, the provisions of the Seafarers' Employment Act may not be amended by private agreements unless otherwise provided for in the law (Section 9 Sentence 1 of the Seafarers' Employment Act).
In summary, it can be said that the employment relationship can exist either with the shipowner or with another employer, and that this relationship can be legally valid both in writing and orally, with the protection of employees always being the priority.
Right to Give Instructions and Wage in Maritime Labour Law – Your Rights and Obligations on Board
The employer's right to give instructions to a crew member on a ship is subject to specific maritime rules and, according to nautical practice, even extends to leisure activities on board. The main responsibility for exercising the right to give instructions rests with the captain of the ship. In his absence, this task is taken over by the first officer, as stipulated in Section 5 of the Maritime Labour Act (SeeArbG). Furthermore, crew members are generally obliged to be present on board, and are granted the right to go ashore in accordance with Section 35 SeeArbG. This right to give instructions reflects the unique requirements and conditions of maritime travel.
The wages, i.e. the remuneration of the ship's crew, include all financial and material benefits, but exclude benefits in kind such as accommodation, food and medical care (§§ 93, 97, 99 SeeArbG). The composition of the wages includes the basic wage, which is comparable to a basic salary on land, as well as possible additions such as allowances according to § 46 Paragraph 1 Sentence 3 SeeArbG or overtime allowances according to §§ 51, 53 SeeArbG. In addition, the travel time to the ship is also paid according to § 37 Paragraph 2 SeeArbG. It is important to note that accommodation and food are not considered part of the wages, which clearly separates the financial structure of the remuneration from other services on board.
Working hours and holiday arrangements for seafarers –
What the SeeArbG prescribes
working hours on board
The general Working Hours Act (ArbZG) does not apply to seafarers on merchant ships, as stipulated in Section 18 Paragraph 3 ArbZG. Instead, working hours are specifically regulated by Sections 43 to 55 of the Maritime Labour Act (SeeArbG). The provisions of the SeeArbG differentiate between working hours at sea and working hours in port, which allows for more flexible handling of the maximum permissible working hours: up to 14 hours within 24 hours or 72 hours within seven days in accordance with Section 48 SeeArbG. Further details on recording and documenting working hours are regulated in the Maritime Working Hours Record Ordinance (See-ArbZNV).
For overtime and night, Sunday and public holiday work, additional remuneration is provided for in accordance with Section 51 of the SeeArbG or time off in lieu in accordance with Section 52 of the SeeArbG. In Germany, the public holiday regulations are based on the public holidays of the place of berth and abroad or at sea on those of the ship's port of registry. It is important to understand that the working time regulations for seafarers are anchored exclusively in the SeeArbG and that the general Working Hours Act does not apply.
vacation for sailors
The Seafarers' Employment Act supplements the Federal Holiday Act (BUrlG) with specific holiday regulations for seafarers. According to the Seafarers' Employment Act, seafarers are entitled to at least 30 calendar days of holiday per year. Shore leave, i.e. short stays on land during working hours, do not count as holiday days.
In addition, in certain cases the shipowner is obliged to cover the travel costs for the journey to and from the holiday destination, as set out in Section 60 of the Seafarers' Employment Act. In the event of premature termination of the employment relationship, the holiday entitlement is granted pro rata for each full month of employment, in accordance with Section 63 Paragraph 1 of the Seafarers' Employment Act.
The existing case law on the transfer of holiday entitlements could potentially also be applicable to holiday within the meaning of the SeeArbG, which would allow seafarers to carry over unused holiday to subsequent years under certain conditions.
Termination and Fixed-Term Employment in Maritime Labour Law
In maritime labour law, the general termination regulations apply when the employment relationship ends, but these are specifically supplemented or replaced by the Maritime Labour Act (SeeArbG) in Sections 65-72.
notice periods according to Section 66 SeeArbG
Within the first three months of the engagement, the engagement can be terminated with one week's notice. After a voyage lasting more than three months, the engagement can also be terminated with one week's notice within three days of the end of the voyage. Captains or officers can only be terminated by the shipowner, if he is the employer, and this requires not only a formal signature but also actual decision-making authority.
deadlines for the unfair dismissal claim
Special deadlines apply for filing a wrongful termination suit: The suit must be filed within three weeks of receipt on land. If the notice of termination was served while on the ship, this deadline is extended to six weeks after the end of service in accordance with Section 24 Paragraph 4 of the KSchG.
Extraordinary termination
The Seafarers' Employment Act regulates specific reasons for extraordinary termination without notice, such as concealing infectious diseases, serious breaches of duty or criminal offenses that make continued employment on board unreasonable. These reasons must be noted in the sea logbook and a copy must be given to the person concerned. Crew members can also terminate their employment without notice under certain circumstances, such as family emergencies.
limitation of the employment relationship
According to Section 28 Paragraph 2 No. 5 of the Seafarers' Employment Act, fixed-term employment contracts are generally permissible. However, ordinary termination within the fixed term is only possible if this has been contractually agreed in accordance with Section 15 Paragraph 3 of the Part-Time Employment Act.
Overall, the SeeArbG offers an adapted set of rules for the specific conditions of the maritime industry by providing for shorter notice periods and clear guidelines for extraordinary dismissals.
Co-determination on board in maritime labour law – Other important regulations
There are special regulations for maritime shipping in the Works Constitution Act. According to Section 114 Paragraph 1 of the Works Constitution Act (BetrVG), the provisions of the Works Constitution Act also apply to ships that are considered a joint maritime operation within a maritime shipping company, as defined in Section 114 Paragraph 3 of the BetrVG. Ships that regularly return to the shore operation within 24 hours are assigned to the shore operation. A maritime shipping company can therefore include both shore operations and a maritime operation.
Ships with at least five eligible crew members can elect a shipboard representative body, in accordance with Section 115 of the Works Constitution Act. This shipboard representative body has similar rights and obligations to a works council on land. The shipboard representative body and the captain can reach agreements, provided that these are not regulated by a works agreement of the maritime works council. In the event of differences of opinion on co-determination issues, the shipboard representative body has the option of calling in the maritime works council. If no maritime works council has been elected, the conciliation board or the labor court can be called upon as a last resort, as stipulated in Section 115 Paragraph 7 No. 2 of the Works Constitution Act.
Maritime works councils elected in accordance with Section 116 Paragraph 1 Sentence 1 of the Works Constitution Act (BetrVG) assume co-determination in matters that affect several ships or have been delegated to them, particularly in matters under Section 87 of the Works Constitution Act (BetrVG). Other special labor law provisions for maritime shipping are regulated in the Maritime Election Regulations (WOS) and in Sections 33 of the SprAuG, 34 of the MitbestG and Section 10i of the MontMitbestErgG.
certificate of service for crew members
In addition to a conventional employment reference, which is issued in accordance with Section 109 of the Trade Code (GewO), the shipowner is obliged to issue a service certificate to each crew member in accordance with Section 33 of the Maritime Labour Act (SeeArbG).
collective agreements for maritime shipping
Special collective bargaining regulations apply in maritime shipping, including the general collective agreement for German maritime shipping (MTV-See) and the wage agreement for German maritime shipping (HTV-See). These collective agreements are only effective if both parties are bound by the collective agreement or if a corresponding contractual agreement exists.
Public Maritime Labour Law and the Professional Association
The Transport, Postal, Logistics and Telecommunications Accident Insurance Association is responsible for monitoring compliance with the public law provisions of the Seafarers' Employment Act. This includes working time regulations, fitness for sea service and the control of social facilities on board, as set out in Section 2 Nos. 4 and 5 of the Seafarers' Employment Act.
Have you been dismissed as a crew member or are you unsure how much vacation you are entitled to? Our maritime labor lawyers are available to answer your labor law questions
Maritime labor law attorney: Professional advice and representation in labor law matters on board
Seafarers and captains have a unique working environment that requires special labor law regulations. Whether it is about compliance with working hours, correct wages or the right to service certificates - there are numerous special features in maritime labor law that are often difficult to understand without professional advice. As maritime labor law lawyers, we know the specific legal requirements that are set out in the Maritime Labor Act (SeeArbG) and the Works Constitution Act (BetrVG).
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