Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the Government’s first report on the application of the Convention.

Article 1 of the Convention. Scope of application and exceptions. Section 4 of the Code on Sea Labour (Code) states that “the provisions of this Code will be applied to the seamen who work on the ships that are included in the scope of this Code and are the citizens of the countries, which according to the principle of reciprocity grant the rights of the same nature to the Turkish seamen”. Article 1, paragraph 1, does not limit the scope of application of the Convention to seafarers whose countries grant reciprocal rights but “to all persons employed on board any vessel”.

Furthermore, section 1 of the Code indicates that it “will be applied to the seamen who work under contract in the ships carrying the Turkish flag and sailing on the seas, lakes and rivers and weighing 100 gross tons (GT) and over and to the employers of the seamen. The vessels such as boats, barges, flat-bottomed boats, small lighters will also be considered as ships”. The Convention, however, does not link its application to a minimum weight of 100 GT, but requires the ship to be “ordinarily engaged in maritime navigation”; it permits exceptions only for persons employed on board boats of less than 25 GT (Article 1, paragraph 2(a)(iii)).

The Committee requests the Government to indicate the measures taken or envisaged to ensure that the Convention is applied to all persons employed on board any Turkish vessel ordinarily engaged in maritime navigation (Article 1, paragraph 1). Furthermore, it requests the Government to ensure that no exceptions to the application of the provisions of the Convention are made, in national law and practice, for vessels of less than 100 GT, as provided for in Article 1, paragraph 2(a)(iii), which only permits exceptions for boats of less than 25 GT.

Article 2, paragraph 2(a). Exceptions to shipowner’s liability. According to section 1 of the Social Insurance Act, benefits to insured seafarers are paid for the cases of “work accidents, occupational diseases, sickness, maternity, invalidity, old age and death”. Neither the Government report nor the available legislation provide an indication whether exceptions exist to the shipowner’s liability in respect of injuries incurred otherwise than in the service of the ship. The Committee requests the Government to provide information whether any national laws or regulations make exceptions to the shipowner’s liability in respect of injuries incurred otherwise than in the service of the ship.

Article 2, paragraph 3. Refusal to undergo medical examination. In the absence of relevant information, the Committee requests the Government to provide information whether the Social Security Institution’s or the shipowner’s liability can be restricted, if at the time of engagement the person employed refused to be medically examined.

Article 3, paragraph (b). Provision of board and lodging. Although section 12, paragraph (F), of the Social Insurance Act requires the institution to pay for all costs resulting from a necessary treatment outside of Turkey, it is not clear whether the institution, in lieu of the shipowner, has to provide board and lodging to the seafarer after an occupational injury. The Committee requests the Government to indicate what, if any, standards of board and lodging are prescribed in the national legislation, and what, if any, limitation of the total or rate of expenditure for board and lodging is provided for.

Article 5, paragraph 1(a). Scope of shipowner’s liability. Whereas according to section 15, paragraph 1, of the Social Insurance Act, the primary responsibility for the provision of sickness and accident benefits remains with the shipowner, the institution may take over this responsibility (section 12, paragraph (B), of the Act). While the Convention provides for the shipowner to pay full wages as long as the sick or injured person remains on board, the Act does not differentiate between the sick or injured person being on or off board. According to section 89, paragraph 1, of the Act, an insured person who suffers from a temporary incapacity for work, receives an “allowance of temporary incapacity amounting to two-thirds of his or her daily earnings when receiving outpatient treatment and one-half when receiving hospital treatment”. The Committee requests the Government to provide information whether measures are taken or envisaged to ensure that full wages are paid to the sick or injured person while remaining on board.

Article 6, paragraph 2. Destination for repatriation. Section 21 of the Code states that “the employer or the representative of the employer has the obligation to return the seaman to the registration port of the ship”. If the termination of the employment contract occurs in a Turkish port, the employer is responsible to return the seafarer to the Turkish port where the ship is registered in (section 23 of the Code). Section 22 of the Code permits foreign seafarers to determine their place of repatriation, by stating that “the employer or the representative of the employer has the obligation to return the foreign seaman to the port at the residence of the seaman, if there is no separate provision in the contract concluded with the foreign seaman”. It appears, however, that Turkish seafarers do not have the right to choose the place to which they are to be repatriated. The Committee asks the Government to indicate the measures taken or envisaged to ensure that destinations to which all seafarers, Turkish as well as foreign, may be repatriated, include the port at which the seafarer was engaged
(paragraph 2(a)), the place at which the voyage commenced (paragraph 2(b)) or another port agreed upon by the seafarer and the master or shipowner, with the approval of the competent authority (paragraph 2(d)).

Article 6, paragraph 3. Repatriation expenses. According to section 21 of the Code, the obligation of the employer encompasses “to return the seaman to the registration port of the ship and pay for expenses related to returning the seaman such as the transport and food costs, and the unavoidable expenses”. The Committee requests the Government to provide information as to whether the cost to be borne by the Social Security Institution or the shipowner includes medical treatment, when necessary, until the seafarer is medically fit to travel to the repatriation destination.

Article 8. Property left on board. According to section 83 of the Regulations for Seafarers, only the seaman’s book and certificates of a deceased seafarer are to be delivered to the nearest harbour authority. The Convention requires that all property left on board by sick, injured or deceased persons has to be safeguarded by the shipowner. The Committee requests the Government to indicate whether national laws or regulations exist ensuring that the shipowner or his representative takes measures for safeguarding property left on board by sick, injured or deceased persons to whom this Convention applies.

Article 9. Settlement of disputes. The Committee requests the Government to indicate whether national laws or regulations exist ensuring the rapid and inexpensive settlement of disputes concerning the liability of the shipowner under the Convention. It further requests the Government to provide information what, if any, provision is made for decisions having interim effect as regards disputes which occur abroad.

Article 11. Equal treatment. The Government reports that section 4 of the Code provides that “the provisions of this Code will be applied to the seamen who work on the ships that are included in the scope of this Code and are the citizens of the countries, which according to the principle of reciprocity grant the rights of the same nature to the Turkish seamen”. The Committee requests the Government to provide information on how national laws and regulations relating to benefits under this Convention are interpreted and enforced in order to ensure equality of treatment to all seafarers working on Turkish vessels.

Part III of the report form. The Government indicates that the Ministry of Labour and Social Security and the inspectors of the Social Security Institution are entrusted with the application of the relevant national legislation. The Committee requests the Government to indicate by what methods the application of national legislation is supervised and enforced and to supply information on the organization and working of the inspections.

Part IV of the report form. The Committee requests the Government to provide information whether courts of law or other tribunals have given decisions involving questions of principle relating to the application of the Convention, and, if so, to supply the text of these decisions.

Part V of the report form. The Government has specified the total number of seafarers serving on ships which are subject to the provisions concerning shipowners’ liability, etc. The Committee requests the Government to give a general appreciation of the manner in which the Convention is applied in Turkey, by providing the number of seafarers who have been assisted in virtue of these provisions, distinguishing, if possible, between persons left ashore in the territory in which the ship is registered and those left ashore elsewhere; and the total expenditures incurred by the Social Security Institution.