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PART 83-PROTESTS, DISPUTES AND

Sec.

83.1

83.2

83.3

83.4

83.5

83.6

83.7

83.8

83.9

OFFENSES

Legal right of seamen to protest.
Seamen's rights under collective bar-
gaining agreements.
Seamen's right to survey.

Mandatory survey upon complaint of

seamen.

Consular investigation of disputes between seamen.

Consular arbitration of disputes. Jurisdiction over offenses committed on the high seas.

Jurisdiction over offenses committed in port or territorial waters. Jurisdiction over offenses committed ashore.

83.10 Consular responsibility for offenses within foreign government's jurisdiction.

83.11 Consular responsibility for offenses outside foreign government's jurisdiction.

AUTHORITY: The provisions of this Part 83 issued under sec. 302, 60 Stat. 1001; 22 U.S.C. 842, except as otherwise noted.

SOURCE: The provisions of this Part 83 appear at 22 F.R. 10852, Dec. 27, 1957, unless otherwise noted.

§ 83.1 Legal right of seamen to protest. American seamen are entitled by statute to lay before United States consular officers their complaints with regard to provisions, condition of water, the unseaworthiness of their vessel, or continuance of the voyage contrary to agreement. No seaman may be restricted by the master from coming ashore to bring his complaints to the Foreign Service office unless circumstances render this action impossible. In such case the master must advise the consular officer of the seaman's desire to see him, at the same time setting forth the reasons why the seaman is not allowed ashore. Upon receipt of such communication, the consular officer shall proceed to the vessel to hear the complaint and take whatever action is indicated.

§ 83.2 Seamen's rights under collective bargaining agreements.

In practice, the seamen's right to complain is extended to almost any incident aboard ship. However, when seamen approach a Foreign Service office with complaints concerning failure of the master or ship's agents to extend them benefits provided by their collective bargaining

agreements in such matters as lodging, repatriation, food allowances, and the like, the seamen may be informed that consular officers are authorized to protect seamen's rights under the statutes but are not authorized to inject themselves into disputes between parties signatory to collective bargaining agreements. Moreover, most of these agreements contain provisions for settlement of disputes upon completion of the voyage, both operators and unions preferring to use machinery established at domestic ports for this purpose.

§ 83.3 Seamen's right to survey.

When complaints are received in writing in accordance with statutory requirements, concerning alleged unseaworthiness of a vessel or its improper provisioning, the consular officer must have made or make an appropriate survey. § 83.4 Mandatory survey upon complaint of seamen.

(a) Complaint that condition of vessel is unseaworthy. When a consular officer receives a written complaint signed by the first and second officers or the majority of the crew that their vessel is unseaworthy or unsuitably provided because of its condition, equipment, crew or some other particular, the officer shall have a survey made with or without the consent of the master. In almost every port or port area, there are representatives of one or more classification societies such as American Bureau of Shipping, Lloyds, or Veritas. The consular officer shall arrange for one of these bureaus to make a survey and to report to him on their own form. The consular officer shall certify the report and give it to the master for appropriate action. If there is no classification society in the area, the consular officer shall obtain the services of three qualified persons to make the survey, who will report their findings to him in the same manner as outlined above. In case of complaint of unseaworthiness based upon deficiency of lifesaving equipment, the Certificate of Inspection serves as a criterion.

(b) Complaint regarding provisions or water. When a consular officer receives a written complaint signed by three or more crew members relative to the provisions or water aboard their vessel, he shall examine the provisions or water, or cause them to be examined by competent persons. Report of the findings

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shall be certified by the consular officer and furnished the master for entry in the official log and for rectification of conditions if necessary. A report shall

also be made to the Judge of the District Court for the district to which the vessel is returning.

(c) Payment of expenses of survey. Sections 659 and 663, title 46 of the United States Code, provide that if a survey reveals that the complaint of the seamen was without good and sufficient cause, the master may retain from the wages of the complainants, divided in proportion to their wages, a sufficient amount to cover costs of such survey. (Exception is made in connection with fishing or whaling vessels or yachts when the survey concerns food or water.) those surveys where there appears to have been reasonable basis for complaint, the expenses of survey must be borne by the master.

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(R. S. 4559, as amended, 4565, as amended; 46 U.S. C. 656, 662)

§ 83.5

Consular investigation of disputes between seamen.

When a dispute arises between the master and the crew of an American vessel or between seamen shipped on such a vessel, a United States consular officer shall investigate the circumstances in any manner appropriate to the situation.

§ 83.6 Consular arbitration of disputes.

A United States consular officer may act as arbiter in a dispute between the master and crew or between the seamen. If possible, arbitration should be conducted on an informal basis and a satisfactory solution worked out orally. However, in the more serious cases, the consular officer should take sworn statements of the parties in interest for possible future action and reference. A consular officer has no authority to try or to punish offending parties.

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courts of the United States and they are incorporated into Federal statutes. Piracy is a notable exception to this rule since the law of nations recognizes this crime as punishable by the authorities of any nation capturing the accused persons and bringing them within the jurisdiction of its courts. Piracy should not be confused with mutiny, which is not an international crime in this sense. § 83.8 Jurisdiction over offenses committed in port or territorial waters.

(a) Offenses involving the peace of the port. When an offense is committed aboard a merchant vessel in the port or territorial waters of a nation other than the nation of registry, and when the offense involves the peace of the port, the nation in whose waters the offense is committed has jurisdiction under an accepted principle of international law.

(b) Offenses not involving the peace of the port. When an offense is committed aboard a merchant vessel in the port or territorial waters of a nation other than the nation of registry, but does not involve the peace of the port, such offense is usually left by local governments to be adjusted by officers of the vessel and the diplomatic or consular representatives of the nation of registry. In the case of vessels of the United States, the right to protection against intervention by a foreign government in this class of cases is safeguarded in many areas by a treaty of friendship, commerce and navigation or by a consular convention between the United States and the foreign government concerned. Even where no treaty or convention exists, the local foreign government will usually refrain from intervening in such cases on the basis of comity between nations.

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officer shall see that the offender is properly cared for and justly treated. However, he shall not expend any money for the defense of the accused unless he has prior specific authorization of the Department of State. Also, the authorities having jurisdiction over the offense are responsible for the punishment of the offender.

§ 83.11 Consular responsibility for offenses outside foreign government's jurisdiction.

(a) Assumption of jurisdiction. When an offense is committed on board a vessel of the United States while on the high seas (see § 83.7) or in foreign port or territorial waters under the circumstances described in § 83.8(b), a United States consular officer shall assume jurisdiction for the United States Government in every case where local authorities will permit him to do so, either by virtue of treaty arrangements or under comity between nations.

In any

(b) Consular investigation. case of misdemeanor or crime involving seamen on board vessels of the United States or American seamen, the consular officer shall investigate the circumstances in a manner appropriate to the situation. He should question witnesses separately and obtain their signatures to their statements as soon after their giving testimony as is possible. When there is apparent conflict in testimony, a witness may be allowed to make a second affidavit to supplement his first statement if that appears desirable.

(c) Consular action on misconduct cases. Consular officers shall discourage insubordination by every practicable means. The master of a vessel has considerable disciplinary power under the statutes to cope with minor misdemeanors of which seamen may be guilty aboard ship. Masters should be assisted in taking authorized disciplinary measures when the evidence to support such action is considered sufficient. The consular officer may make suitable entries

in the ship's log as an official record of his recommendations to the master in the premises. Seamen guilty of misconduct should not be discharged unless their acts were caused by cruel treatment, or their presence on board ship would constitute a menace to the discipline of the vessel or endanger its operation. In discharging such seamen, the consular officer will give the reason therefor on the ship's articles and official log, properly certified by him.

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(d) Consular action on criminal cases. When seamen accused of crime come under the jurisdiction of a consular officer, he shall obtain all possible sworn testimony and on the basis of such information take appropriate action. consular officer has discretionary authority to return a seaman to the United States for trial. If the circumstances demand that the offender be sent to the United States for trial, the consular officer may discharge the seaman and apply to the local authorities for means to secure and detain him while he remains in port. Arrangements for return of witnesses will be made by the Department of Justice at the appropriate time.

(e) Consular action on mutiny cases. Consular officers shall investigate promptly reports of mutinies on vessels of the United States which arrive in their districts and, when necessary, shall take measures, consistent with treaties and usage, to establish order on the vessel and to return the mutineers to the United States for trial. Consular officers have a wide discretion in deciding whether evidence justifies the detention and return to United States for trial of persons charged with mutiny.

(f) Detention of accused aboard ship. The accused shall be placed in the custody of the master who shall take such measures as he deems necessary to detain the seaman. The master will be given certified copies of the affidavits taken in the case to be turned over to the authority taking custody of the accused in the continental United States.

(R. S. 4600, as amended; 46 U. 8. C. 703)

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Repatriation ports.

84.10 84.11 Necessity for prompt repatriation. 84.12 Repatriation of seamen without consular authorization.

AUTHORITY: The provisions of this Part 84 issued under sec. 302, 60 Stat. 1001; U.S.C. 842, except as otherwise noted.

SOURCE: The provisions of this Part 84 appear at 22 F.R. 10854, Dec. 27, 1957, unless otherwise noted.

§ 84.1 Financial responsibility of owners or operators of American vessels. By maritime practice, Comptroller General decisions or maritime bargaining agreements, United States owners or operators are held responsible for relief and repatriation of all seamen separated from their vessels at foreign ports for any reason except desertion or shipwreck.

§ 84.2

Financial responsibility of United States Government.

By statute, a United States consular officer must furnish or cause to be furnished relief and repatriation to any destitute American seamen, including seamen from documented fishing vessels of the United States. He is responsible in a like manner for shipwrecked or ill or injured American seamen, and is solely responsible for certified deserters who are United States citizens. He has temporary responsibility for the relief of stranded alien seamen signed on abroad and separated from vessels of the United States because of shipwreck, illness or injury, or bankruptcy on the part of the shipowner.

§ 84.3 Consular investigation of applicants for relief.

Before granting relief, a consular officer shall satisfy himself that the seaman is entitled to relief under the statutes, maritime usages, and Comptroller General decisions.

§ 84.4 Destitute seamen.

The question as to whether an American seaman is destitute within the meaning of R.S. 4577 (46 U.S.C. 678) is one for determination in the first instance by the United States consular officer to whom the seaman applies for relief. The consular officer's decision, in the absence of contrary facts, is sufficient. [2 Comp. Gen. 317]

§ 84.5 Shipwrecked seamen.

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When seamen from vessels of the United States arrive after shipwreck at a port within a consular district, the consular officer concerned shall make immediate arrangements for their relief. lief may be afforded without regard to the nationality of the seaman, whether he has status as an American seaman (see § 81.1(j) of this chapter) or whether he has funds in his possession. In addition, American seamen, if they cannot be reshipped, should be provided with passage to the United States or to an intermediate port where employment may be had or passage obtained. Alien seamen shipped at foreign ports are not entitled to transportation to the United States or to the port of shipment. However, an alien seaman may be granted temporary relief until reshipment is possible or until arrangement can be made with representatives of the government of which the alien seaman is a citizen or subject, for his care and transportation or other relief at the expense of that government. If the owners or operators of a shipwrecked vessel assume responsibility for the relief and repatriation of survivors, consular officers should interpose no objection. This assumption of responsibility which is customary, is on a voluntary basis and is in no sense demanded by the Department of State or consular officers. Seamen from shipwrecked yachts are to be granted relief only if destitute in fact, although seamen from fishing and whaling vessels may be furnished relief as outlined above.

(R. S. 4526, as amended; 46 U. S. C. 593)

§ 84.6 Ill or injured seamen.

(a) Statutory responsibility of Government. The statutes provide that when a seaman becomes ill or is injured in the service of a vessel of the United States and is formally discharged before a consular officer by reason of being in

capacitated on account of such injury or illness relief may be furnished the seaman by the consular officer, regardless of the cause of his illness or injury and regardless of whether or not the said seaman may have funds of his own sufficient for his immediate needs. Also relief may be furnished ill or injured seamen from documented fishing vessels even if not signed on shipping articles.

(b) Responsibility of owners under maritime practice. Maritime usage has placed upon the operator of the vessel the primary responsibility for ill or injured seamen whose disability is not the result of their own misconduct.

(c) Responsibility according to Comptroller General. The Comptroller General, to whom United States consular officers must account for expenditure of Government funds, has placed responsibility for all ill or injured seamen, regardless of the cause of their disability, upon the operators and has indicated that consular officers should not discharge seamen until responsibility for their care and repatriation has been assumed by the master or agent on behalf of operators. The Comptroller General has stated that notwithstanding a seaman's discharge from a vessel on account of venereal disease, a duty devolves upon a shipping company to furnish hospitalization, subsistence and repatriation to a seaman then and previously in its employ, and to furnish such reasonable medical care and treatment as may be necessary during the return voyage. Under maritime custom and as a matter of public policy, the obligation of the shipping company goes further than a mere contractual relationship with the seaman, and said obligation is not terminated on the discharge of the seaman in a foreign country. [Comp. Gen. A-17383, April 1, 1927]

(d) Effect of failure to discharge before consular officer. If the seaman becomes ill or is injured in the service of a vessel, whether or not through his own fault, but is not discharged before a consular officer, the consular officer is not required by law to furnish relief to the seaman from United States funds unless the said seaman is found destitute within the consular officer's district. If a seaman becomes ill or is injured while a member of the crew of a vessel and is placed in a hospital by the master of the vessel prior to his being discharged before a consular officer, the consular

officer is not authorized to pay from Government funds any part of the hospital expenses incurred, either after discharge if later accomplished or prior thereto.

(e) Emergency relief at Government expense. Where conditions are such that United States consular officers cannot procure prompt medical and hospital treatment and subsistence for American seamen at the expense of the master or owner of the vessel upon which the seaman last served, relief may be furnished at the expense of the Government and payment made therefor from the appropriation for the relief of American seamen. Refusal on the part of a master or owner should be in writing in order that the consular officer may show basis for expenditure of funds.

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(f) Liability of shipowner. officers shall report promptly all cases where vessels or owners refuse to assume responsibility for the care and repatriation of seamen in accordance with law. 29 Op. Att. Gen. 54 states:

An American seaman, disabled in the service of the vessel and who was left in a hospital at a foreign port, is entitled to medical expenses incident to a recovery from the injury and transportation back to the United States, and where these expenses are paid out of funds belonging to the United States, after notice to the owners of the vessel that they were liable for the same and demand made for payment, the owners of the vessel may be held liable therefor. (R. S. 4581, as amended; 46 U. S. C. 683)

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(a) Responsibility of the Government. There is no obligation on the owner of a vessel from which an American seaman has deserted while the vessel was at a foreign port to transport the seaman back to the United States, and where such seaman has become destitute while abroad payment from public funds for transportation back to the United States, even though furnished on a vessel of the same company as the vessel on which the seaman originally shipped, may be made under the laws applicable to destitute American seamen. [3 Comp. Gen. 936] (See § 82.19 of this chapter.)

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