Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 246, Noviembre 1986

1. 28. In a communication of 28 November 1985, the Panhellenic Union of Merchant Marine Engineers (PEMEN), the Panhellenic Union of Merchant Seamen (PENEN) and the Panhellenic Union of Certified Third-Degree Engineers and Stefenson Pumpmen presented a complaint alleging violations of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). The Government sent its observations in a communication of 10 April 1986.
2. 29. Greece has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.87), and the Right to Organise and Collective Bargaining Convention, 1949 (No.98).

A. The complainants' allegations

1. 30. The complainants allege that section 238 of Decree No. 187/1973 to institute a Public Law Maritime Code violates freedom of association. According to the complainants, this provision prohibits Greek seamen from filing appeals concerning disputes arising from their employment contracts, without the prior authorisation of the Ministry of the Merchant Marine, and authorises penalties of up to three months' imprisonment and a five-year confiscation of the seaman's work permit. According to the complainants, the councils responsible for examining seamen's appeals regard as foreign authorities not only foreign courts, but also foreign trade unions and the international federations and confederations to which the Panhellenic Seamen's Federation (PNO) and seamen's trade unions belong.
2. 31. According to the complainants, this provision constitutes a violation of Article 5 of Convention No. 87, since
3. (1) it infringes the right of trade unions to maintain relations with international organisations, federations or confederations to which they may or may not belong; (2) it infringes the right to request intellectual, material and legal assistance from local, foreign and international federations and confederations, and to request their support in connection with seamen's trade unions' claims or appeals in court; (3) it infringes the right of branch unions to request the assistance of local and foreign international federations and confederations in their struggles or those of their constituents, as well as their right to request solidarity action to protect the common interests of workers and their individual and collective rights on an international level; (4) lastly, it infringes the right to protest against the interference of government authorities when they impose legal or material constraints on Greek seamen, ships, or the ports at which they dock.

B. The Government's reply

1. 32. In its reply of 10 April 1986, the Government explains in general terms that a highly developed maritime sector must be in a position to ensure normal and peaceful maritime traffic throughout the world, and that ships must not only carry out their commercial tasks, but also shoulder their responsibilities for protecting the safety and lives of seamen. The Government adds that all maritime nations of the West as well as the East have adopted codes of penal and disciplinary provisions governing relations between persons working on board ships, and that Greece adopted such a Code in 1923, which has been subsequently amended.
2. 33. As regards Legislative Decree No. 187/1973 to institute a Public Law Maritime Code, the Government states that this text has not introduced any new provisions, but has merely codified the existing legislation. The Government explains, however, that, as the Code entered into force a number of years ago, it is to be updated, and that all interested parties, including seamen, have been invited to contribute their views. These amendments will be entrusted to a special committee, soon to be appointed, in which representatives of seamen are to participate.
3. 34. According to the Government, the correlation which the complainants allege to exist between the disciplinary laws of the merchant marine found in all maritime nations and the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), has no foundation, since there is no relation between the two. However, seamen's organisations are authorised by law to set up disciplinary councils responsible for the disciplinary control of their members who infringe the regulations. These councils are not composed of a single person but of a group of people; furthermore, seamen have the right to appeal before a second-degree council. The first- and second-degree councils are composed of a seamen's representative and a number of other persons familiar with the conditions of life on board ships, the requirements for safety in navigation and the equality of disciplinary treatment. According to the Government, such disciplinary councils exist in Italy, France, Argentina, Brazil and the United Kingdom.
4. 35. As regards the provision of Legislative Decree No. 187/1973 concerning the right of appeal before authorities other than those of the State of the ship's flag, the Government indicates that this is a very controversial point in international law. The issue has already raised a number of problems for Greek shipping, because the courts of the United States have decided to examine a number of complaints filed by Greek seamen.
5. 36. In support of its argument, the Government provides two recent examples of such complaints. The first concerns an appeal for damages filed by a Greek seaman before a court in the city of New Orleans concerning an employment injury which took place in May 1984 on a Greek ship anchored in the French port of Boulogne-sur-Mer. The second involves the payment of a substantial indemnity to the widow of another Greek seaman, who died as the result of an accident which took place on a ship anchored in the Greek port of Patras; his widow has threatened to file suit in an American court of law.
6. 37. The Government concludes that it could not remain indifferent to this type of situation and thus inserted section 238 in Legislative Decree No. 187/1973, with the consent of the representatives of seamen and shipowners' federations. This section provides that appeals concerning the work or rights of seamen, including those arising from illness or injury, may be judged on the basis of Greek legislation. Other maritime nations follow this practice, according to the Government. Such is the case, for instance, in Italy, Denmark, the Netherlands, Sweden and Iceland.
7. 38. Furthermore, the Government adds, Greece has taken all measures necessary to ensure that labour disputes involving seamen on board ships may be resolved fairly and promptly. The Greek maritime consular authorities are kept informed of all new provisions governing these matters as well as of the corresponding case law. Moreover, whenever a problem arises, seamen or shipowners may telex or write to the appropriate divisions of the Ministry of the Merchant Marine and obtain a reply within a matter of days. In cases in which a Greek seaman cannot benefit from the protection of the Greek authorities, for instance when he requests that a ship be confiscated in a foreign country, the Ministry of the Merchant Marine always grants its authorisation by telex, in accordance with section 238, subsection 3. The last subsection of section 246 provides that the ship's captain will be held liable if any crew member or passenger is unjustly prevented from filing a complaint with the Greek authorities.
8. 39. Consequently, the Government considers that any appeal filed by a seaman before a foreign authority or organisation concerning a dispute arising from a maritime employment contract is unjustified, since seamen are protected by Greek legislation and have the right to file appeals before the Greek consular authorities (in application of section 238). Furthermore, the Government adds, such actions may hinder the normal operation of ships and damage the reputation of Greece abroad, and are therefore prohibited.

C. The Committee's conclusions

1. 40. The Committee notes that the legislative provision impugned by the complainants concerns the prohibition of appeals by Greek seamen to a foreign authority to obtain the resolution of disputes arising from their employment contracts. In fact, section 238 provides that "any active or dismissed crew member who appeals to a foreign institution or authority to enforce his alleged rights or to obtain the resolution of a labour dispute arising from his maritime employment contract, in spite of the fact that he enjoys legal protection under Greek law and can appeal to a Greek consular authority, shall be punishable by imprisonment of up to three months. The following are aggravating circumstances: first, if the offender is the captain or an officer of a ship; secondly, if such appeal delays the departure of a ship which is ready to cast off. The foregoing provisions do not apply to cases where the Minister of the Marine, Communications and Transport has authorised appeals to foreign authorities or organisations, in consideration of the conditions of application of subsection (1)." According to the complainants, this provision violates Article 5 of Convention No. 87, inasmuch as it prohibits Greek seamen and their trade unions from contacting international trade union organisations to which they belong. On the other hand, the Government considers that this provision has no relation whatsoever with Convention No. 87; it explains that it is only intended to prohibit Greek seamen from appealing to foreign authorities, since they have the right to appeal to Greek authorities in disputes involving their employment contracts.
2. 41. The complainants did not furnish specific examples in their complaint to support their contention that this provision is used to prohibit Greek seamen's trade unions from contacting international trade union organisations to which they belong or to request their solidarity; furthermore, they have supplied no additional observations despite being offered the opportunity to do so. The Government, on the other hand, has furnished concrete examples to show that this provision is intended to prohibit Greek seamen who are involved in labour disputes with their employers from bringing the matter before foreign jurisdictions, since they have the right to appeal such matters to the Greek authorities. In these circumstances, the Committee considers that the provision in question does not violate freedom of association.