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Article 1, paragraph 1, of the Convention, read in conjunction with Article 11. Scope of application and equality of treatment for all seafarers irrespective of nationality, domicile or race. In its previous comments, the Committee asked the Government to take the necessary measures to amend section 688(b) of the Jones Act which prohibits non-resident foreign seafarers from claiming injury or death benefits if they are employed in an enterprise engaged in the 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 laws of the nation asserting jurisdiction over the area in which the incident occurred, or under the laws of either the seafarer’s country of nationality or residence.
The Government states in its report that, since the United States believes that section 688(b) of the Jones Act, as amended in 1982, is in compliance with Convention No. 55, there are currently no plans to amend this provision of the Jones Act. The Government explains that the 1982 amendment to the Jones Act recognized the practical reality that offshore oil worker activities related to exploration, development or production of mineral or energy resources generally take place without the worker leaving his or her own national waters. The Government recognizes that the amendment creates a difference of treatment for foreign nationals who are not residents of the United States, but considers this difference justified since non-resident foreign seafarers may pursue remedies in more appropriate forums.
In accordance with Article 11 of the Convention, however, 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, non-resident foreign seafarers should be able to claim for compensation in the same way as national or resident seafarers.
A distinction might be drawn between different activities encompassed by the terms of section 688(b) of the Jones Act: “exploration, development or production of offshore mineral or energy resources”. According to the Act, such activities may include drilling, mapping, surveying, diving, pipelaying, maintaining, repairing, constructing, or transporting supplies, equipment or personnel. While the application of the Convention could be limited with regard to drilling activities, as drilling platforms are not ordinarily engaged in maritime navigation, the Convention remains fully applicable with regard to the other activities, and equality of treatment is to be ensured.
The Committee hopes that the Government will reconsider its position on this matter, and take the necessary measures to amend section 688(b), possibly taking into account the distinction between drilling activities and other activities, so as to ensure that all foreign seafarers employed on board any vessel, registered in the United States and ordinarily engaged in maritime navigation, benefit without any prior condition 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.
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.
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.
In its previous report, the Government 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.
Article 1, paragraph 1 (scope of the Convention), together with Article 11 (equality of treatment for all seamen irrespective of nationality, domicile or race). In previous comments, the Committee questioned the effect on the application of the Convention of section 688(b)(1) of the Jones Act, as amended in 1982 which prohibits non-resident foreign seamen from claiming sickness, injury or death benefits if: they are employed in an enterprise engaged in exploration, development, or production of off-shore mineral or energy resources in the territorial waters or waters overlaying the continental shelf of a foreign nation; and they 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. In reply to the Committee's comments the Government states in its report that the benefits prescribed under the Convention may be claimed by all seamen, regardless of nationality, in a common law maintenance and cure claim brought under the general maritime law. The Government adds that the Jones Act, as amended in 1982, bars foreign seamen in certain circumstances from bringing claims for additional damages which a seaman may be entitled to as a result of fault or negligence on the part of the shipowner, but that these claims are outside the scope of the Convention.
The Committee notes this information, as well as the extensive documentation supplied by the Government in its report. It also notes, however, that in Camejo v. Ocean Drilling & Exploration, the United States 5th Circuit Court of Appeals interpreted the clause "under any other maritime law of the United States for maintenance and cure or for damages" of section 688(b)(1) of the Jones Act as amended in 1982, as barring all claims under the general maritime law, and not just Jones Act-based claims (838 F.2d 1374, 1377). Therefore, it appears that foreign seamen who fit the conditions set out in the 1982 Amendment are also barred from bringing a common-law maintenance and cure claim. The Committee requests the Government to take the necessary measures, such as amending section 688(b)(1), to ensure that all foreign seamen employed on board any vessel engaged in maritime navigation, excluding ships of war, have the right to recover all entitlements specified in the Convention. It asks the Government to supply in its next report information on any progress made in this respect.
Article 1, paragraph 1 (scope of the Convention), together with Article 11 of the Convention (equality of treatment to all seamen irrespective of nationality, domicile or race). The Committee takes note of the information supplied by the Government in reply to its earlier comments. It notes, in particular, that the courts have not yet addressed the specific issue that concerns the effect of a 1982 amendment to the Jones Act (46 USC section 688) on the application of the Convention to certain foreign seafarers. It also notes the Government's statement that, should the issue be presented in some future case, a court may conclude that, in view of the legislative history of the amendment, the amendment may be construed in a manner consistent with the Convention. The Government suggests that it may be useful to await further judicial development of the issue before reaching another conclusion about the proper interpretation of the amendment.
The Committee takes due note of the Government's views on the subject. It hopes that it will be possible to review, in the near future, the effect of this amendment on the application of the Convention to foreign seafarers - other than permanent residents in the United States - employed by enterprises engaged in the exploration, development or production of offshore mineral or energy resources, on vessels operating in the waters overlying the continental shelf of a nation other than the United States. The Committee is, however, of the opinion that, to avoid any doubts on the effect of the 1982 amendment to the Jones Act on the application of the Convention, it would be advisable to modify the legislation to more clearly reflect the requirements of the Convention. It asks the Government to provide, in its next report, information on any progress made in this regard.
Article 1, paragraph 1, together with Article 11 of the Convention. In its previous direct request the Committee noted that the amendment of 29 December 1982 to the Jones Act (46 USC section 688) appeared (subject to an exception the burden of proof of which is on the seaman) to exclude from the protection provided by these provisions of the Convention foreign seafarers employed by enterprises engaged in the exploration, development or production of offshore mineral or energy resources, in the case of injury occurring in the territorial waters or waters overlaying the continental shelf of a nation other than the United States.
The Committee notes the Government's statement that, in so far as the activities concerned involve transportation on water, this need not involve "maritime navigation" as it understands this term, namely navigation on the high seas only. The Committee would point out that, under the 1958 Convention on the High Seas (in particular article 1) and the 1958 Convention on the Continental Shelf (in particular articles 1 and 3) waters overlaying the continental shelf form part of the high seas. The Committee therefore requests the Government, in the light of these considerations, to review the effect of the 1982 amendment to the Jones Act on the application of the Convention to foreign seafarers - other than permanent residents in the United States - employed by enterprises engaged in the activities covered by this amendment on vessels operating in the waters overlaying the continental shelf of a nation other than the United States.