MARITIME LIEN FOR SEAFARERS WAGES IN GREECE

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1 MARITIME LIEN FOR SEAFARERS WAGES IN GREECE This Guide deals with the rights of seafarers of any nationality to unpaid or underpaid wages in respect of Greek flagged ships, and foreign ships which are in the ports of Greece. These rights can be enforced in the Civil Courts of the port, where they may be secured and preferred by maritime liens and enforced by the arrest and forced (judicial) sale of the ships. This document is not intended to be legal advice, nor does it constitute legal advice. If a seafarer intends to claim his wages, he is strongly advised to consult a lawyer qualified to practise in Greece. *A full text version of this Subject Guide including footnotes will become available for subscription in due course. In the meantime if there is a specific inquiry on any Subject Guide, please contact SRI. 1. What is the maritime lien for seafarers wages? How is it enforced? 1.1 Greek Law recognizes the maritime lien for seafarers wages which attaches to the vessel itself. However, Greek law does not recognize an action in rem, which is an action against the vessel itself. A maritime lien for seafarers wages is directed against the registered owner of the vessel (company or person), or the shipowner of the vessel that is related to the work of the seafarer. 1.2 The maritime lien can take effect against the freight and so a preferential maritime creditor can satisfy his claim from the freight which the shipowner expects to collect for the carriage of passengers or goods. However, the maritime lien cannot be exercised against the insurance proceeds if the vessel is lost. 1.3 Maritime liens are deemed to be encumbrances on the vessel. Whether or not a claim is recognized as a maritime lien (that is, a privileged claim) depends on the law of the flag of the vessel. The law of the flag also determines the time limit for the existence of a privileged claim. The law governing a seafarer s employment contract will not be taken into consideration in determining whether a seafarer s claim is privileged or not. 2. Which courts have jurisdiction over seafarers wage claims? 2.1 Seafarers wage claims are enforced in the Civil Courts of the port where the vessel is located. Piraeus is the only port which has a specialist court section for maritime cases. Page 1/6

2 2.2 The four main ports in Greece (Piraeus, Lavrion, Elefsina and Rafina) are within the Attica region of Greece. Law 2172/1993 provides that all maritime cases of the Attica region will be heard by the special maritime section of the Court of First Instance and Court of Appeal of Piraeus. About 90 per cent of maritime disputes are heard by the maritime section of the Court of First Instance and Court of Appeal of Piraeus. Hence these courts largely determine the case law of the Greek maritime law. 2.3 The Civil Supreme Court Areios Pagos does not have a special maritime section. 3. Can the courts refuse to hear seafarers claims for wages? 3.1 Provided that the Greek court has international jurisdiction to hear the claim, it cannot refuse to hear a seafarer s claim for wages. There is no distinction between foreigners and nationals making a claim, and there is no requirement for the claimant to set up a warrant so that a hearing can proceed. Furthermore, arbitration for seafarers claims between the claimant and his shipowner is strictly prohibited. 3.2 Seafarers claims are always heard by the labour disputes section of the competent court and the hearing follows a less complicated procedure. 4. Who can claim seafarers wages? 4.1 To characterize the employment as maritime a seafarer must participate in a structured crew under a maritime capacity, and be ready to participate in the ship s sailings. 4.2 In view of this definition the service of a seafarer has to be rendered on board the ship so that his claims are considered preferential. 5. Which ships are subject to the jurisdiction of the courts? 5.1 Greek Law does not recognize an action in rem. Therefore, the jurisdiction of the national court will be established following criteria related mostly to the defendant shipowner or the employment contract itself or the port where the ship lies. 5.2 The flag of the ship has nothing to do with establishing the jurisdiction of the national court. 6. What is included in the maritime lien for seafarers wages? 6.1 Greek law is broadly worded and provides that all seafarers claims arising from their employment contracts, which are connected directly or indirectly with Page 2/6

3 providing maritime employment on the ship in question, are considered preferential claims. 6.2 The following crew claims are considered preferential: claims for wages in stricto sensu; overtime; leave pay and long service allowance; illness wages; compensation for termination of contract; damages for infringement of the right to protection of the personality of seafarers; repatriation costs; costs for accommodation and launches, food; and labour accident claims. 7. Can seafarers wages be claimed if there is no written contract of employment? 7.1 The existence of the maritime lien requires that there is a seafarer s employment contract in place; also that the nature of the employment is maritime. However, according to the Greek law, a seafarer s employment contract is informal, meaning that the written form is not essential but only of evidential value. 7.2 Therefore, a seafarer s maritime lien does not require a written employment contract, but merely an employment relationship. Both the written contract and the elements of an employment relationship (including, for example, shipping articles, crew list and wages slips), qualify as evidence proving the existence of an employment contract, which has been agreed or orally effected. 8. Must seafarers services have been rendered on board the ship? 8.1 For an employee to claim a seafarer s maritime lien within article 205 (b) of the Greek Code of Private Maritime Law, his employment must be characterized as maritime as opposed to land based. In the majority of cases, the distinction between maritime and land based employment is simple; for example, the employees of the shipping company ashore cannot be deemed to be seafarers, nor is their employment to be regarded as maritime, even though their employment is indirectly related to the management of the vessel. 8.2 There are cases where the distinction between maritime and land based employment is more difficult. Is an accountant working onboard to be deemed to be a seafarer? Is the photographer on board a cruise ship a seafarer? Also, it is often the case that crewmembers are abandoned at a port for a very long time, and then the question arises as to whether their employment continues to be maritime employment or is transformed to land employment. 8.3 In accordance with established case law in Greece, the criteria distinguishing land from maritime employment are the participation of the employee in a structured Page 3/6

4 crew in a maritime capacity, and his readiness to participate in sailing the ship. Therefore, the accountant and the photographer, as discussed above, would both be deemed to be examples of seafarers. Moreover, as per established Greek case law: the employment contract of a seafarer who signed on a ship which, for whatever reason, remains idle at the port does not lose its character of maritime employment nor is it transformed to land based employment or to any other kind of employment. If the ship remains at the port to undertake repairs or for any other reason, the seafarers that serve on board the ship are still considered to offer maritime employment and they are paid as per their agreed wages, or in absence thereof, as per the collective agreement. 8.4 Therefore, in cases of crew abandonment, the employment of the seafarers continues to be considered as maritime employment and comes under the maritime lien, until the maritime employment contract is terminated for a legal reason. 9. What is the ranking of seafarers claims for wages in the event that sale proceeds are distributed? 9.1 When a vessel is auctioned in Greece, the ranking among the privileged claims (maritime liens) is deemed to be a procedural matter and is accordingly governed by lex fori, that is, Greek law. Therefore, as far as crew claims are concerned, in order for the maritime lien for wages to be effective, it must be recognized as privileged both by the law of the flag of the vessel and by Greek law. 9.2 Greek law classifies seafarers claims as second in the rank of maritime liens. According to article 205 of the Greek Code of Private Maritime Law, the maritime liens that burden the ship and the freight are: (1) first, court costs incurred for the common interest of the creditors, taxes and fees due to the Greek Government, taxes and duties related to the sailing of the ship, contributions to the Seamen s Pension Fund concerning the sea service of seafarers and any fines imposed by the Employment Agency of Seamen in favour of the Unemployment and Health Fund of Seamen; (2) second, claims of the master and crew arising from their employment contracts and costs of safeguarding and maintaining their vessel from the arrival of the vessel at the last port of call, where she was auctioned; Page 4/6

5 (3) third, costs and fees regarding salvage services, rescue and wreck removal; and (4) fourth, compensation due to vessels, passengers and cargoes arising out of collisions between vessels. 9.3 Maritime mortgages rank after maritime liens. 10. Can wages be claimed if the employer is not the shipowner or acts illegally? 10.1 Wages are to be paid even if a seafarer s employer acts illegally. There is no contrary provision in the law since the wages of a seafarer are considered essential for the survival not only of the seafarer but also of his family In the absence of the shipowner (person/company), a seafarer s wages are to be paid by the following alternative entities (companies/persons): (1) by the entity that hired the seafarer acting as the representative of the shipowner, provided that the employment contract has been agreed (orally or in writing) in Greece, the shipowner is a foreigner and the law action against the representative is filed within six months from the date the seafarer signed off the ship. If the representative is a company, then the manager of it is jointly liable to pay the wages. A seafarer s maritime lien for wages is not addressed against the representative but a seafarer holds a preferential claim for unpaid wages against the representative in accordance with the general rule that makes an employee s claim preferential. (2) In Greek law, there is a distinction made in relation to Greek flag ship ownership. The entity that owns the ship but does not operate it is called owner of the ship. The entity that owns the ship and operates it is called shipowner (πλοιοκτήτης). The entity that does not own the ship but operates it and makes a profit out of it is called efoplistis (εφοπλιστής which is a concept close to the French armateur ). Usually a bareboat charterer is efoplistis. The efoplistis and the shipowner are fully liable to pay the wages of a seafarer, but the owner is liable only up to the value of the ship. The maritime lien for wages is addressed against all three. 11. Can the seafarer s maritime lien for wages be abandoned or waived by agreement? 11.1 As far as the maritime lien for seafarers wages is concerned, established opinion is that seafarers are not permitted to waive their maritime liens protecting their Page 5/6

6 claims, since the reason behind the establishment of the liens is to offer seafarers protection. Any private agreement to the contrary is null and void. 12. When is the seafarer s maritime lien for wages forfeited or not recognised or extinguished? 12.1 If the maritime lien for wages is forfeited when for whatever reason, it is extinguished In the concept of not recognizing the wages maritime lien does not exist, since that lien is based on the law Extinction of a maritime lien is effected: (1) by virtue of the preemption of a preferential claim; (2) when the claim is time-barred; (3) when the vessel is lost, since the maritime lien cannot be executed against the insurance proceeds; (4) by waiver; or (5) if the vessel is sold in a public auction. Page 6/6