Seafarer employment agreement (seafarers who reside outside France)
Key principle: distinction on the applicable labour law based on the place of residence
The labour law applicable under the French flag/RIF has the particularity of being specific based on the place of residence of the seafarer.
In accordance with art. L. 5612-1 of the French Transport Code, the body of law relating to working hours on board ships registered in the international register of the French flag (RIF) differs according to the seafarer’s place of residence:
| Seafarer’s place of residence | Legal framework | Note |
|---|---|---|
| Seafarers resident in France | Application of Book V of Part Five of the French Transport Code | This means that the employment rights of seafarers resident in France are the same under the French flag, whether the ship is in the First Register or the RIF |
| Seafarers who do not reside in France | Application in principle of Book VI of Part Five of the Transport Code and, where explicitly provided for, of the provisions of Book V (see the list of legal provisions concerned, mentioned in 2° of art. L. 5612-1 of the Transport Code) | Labour law differs than the one applicable to seafarers who reside in France |
With regard to the Seafarer Employment Agreement (SEA), as provided in art. L. 5542-1 of the French Transport Code, it is not applicable for seafarers who reside outside France (art. L. 5612-1, Transport Code).
Obligations related to SEA for seafarers who do not reside in France
Art. L. 5621-7, French Transport Code: « II. - Whatever law has been chosen by the parties in application of the part I, the seafarer employment agreement is established in compliance with the requirements of the Maritime Labour Convention, 2006, of the International Labour Organization, covering the employment contracts of seafarers, without prejudice to more favorable provisions.. »
In other words, the mandatory information as listed in Article L. 5542-3 of the French Transport Code shall appear in the employment contracts of employees working on board ships registered with the RIF French flag and who do not reside in France:
- 1° the surname and first name of the seafarer, date and place of birth, identification number;;
- 2° the place and date of the contract signature;
- 3° the surname and fist name or company name and address of the shipowner;
- 4° the functions performs by the seafarer;
- 5° the amount of wages and supplements;
- 6° paid leave entitlements or the formula used to calculate them;
- 7° the benefits in terms of health protection and social security that must be provided to the seafarer by the employer;
- 8° the seafarer rights to repatriation;
- 9° reference to the applicable collective agreements;
- 10° the term of the contract if it is concluded for a fixed period.
The SEA also specifies the modalities for repatriation of the seafarer, as an obligation borne by the employer (art. L. 5542-29 to 5542-33-3, French Transport Code).
Seafarer’s embarkation period
"The maximum embarkation period is 6 months. It may be extended to 9 months under a collective agreement and, in both cases, extended or reduced by a maximum of 1 month for reasons linked to the operation of the vessel" (Art. L. 5621-9, French Transport Code).
Probationary period
Art. L. 5621-9, French Transport Code: "During the first period of a seafarer being employed by a shipowner, the first 3 months of service are considered as a probationary period."
What kind of employment agreement for seafarers who reside outside France?
Art. L. 5621-7, French Transport Code: « I. - The seafarer employment agreement for seafarers residing outside France is subject to the law chosen by the parties, subject to the provisions of this chapter and without prejudice to more favorable provisions of collective agreements or agreements applicable to non-residents..»
International SEA
An employment contract is said to be international when there are one or more elements of foreign nationality: place of employment is foreign to the place of execution, place of execution is foreign to the nationality of the parties.
The determination of the applicable law for an international employment contract is governed by Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
In principle, it is the employment contract that determines the applicable law. However, this choice cannot deprive the employee of the protection from more favorable provisions by the law applicable in the absence of choice and which cannot be derogated.
The identification of provisions not liable for derogation result from decisions from the legislator or the judge.
In the absence of a choice on the applicable law for the international employment contract, the applicable law is:
- The law of the usual place of work. According to French jurisprudence, the usual place of work for seafarers corresponds to the ship navigation area;
- In the absence of a usual place of work, it is the location of the establishment that hired the employee;
- Unless the contract has closer links with another State than that of the usual place of work or the hiring establishment. This can be the country where the employee pays income taxes, the country in which he/she is affiliated to a social protection scheme and any other working conditions. For example, the French judges have considered that the contract has closer ties with France when the seaman resides in France and when the ship is berthed in a French port.
Service record to be given to seafarers by their employer
In accordance with Decree no 2015-440 of 17 April 2015 on the seafarers’ service record, this document must be given to the seafarer by the employer at the end of the SEA, regardless of where the seafarer lives. This document lists the identity of the parties, the period worked in the company, the duties performed on the ship(s) and the duration of embarkation, and the periods worked ashore.
The record does not include any assessment of the quality of the work done by the person concerned or any indication of his or her salary, and may be translated into English on request.
Employers who refuse to issue this service record are liable to a fine for 4th class offences (art. 5, decree no. 2015-440 of 17 April 2015).
End of the SEA
In accordance with Article L. 5621-14 of the French Transport Code, the notice period of 1 month upon termination of the SEA is not applicable in the event of:
- total loss of seaworthiness;
- ship being laid-up;
- gross negligence or serious misconduct of the seafarer;
- if the ship is heading to a war zone.
End of SEA indemnity
In accordance with Article L. 5621-15 of the French Transport Code, the end of contract allowance for seafarers who reside outside France but worked onboard a RIF ship under the French flag is equal to at least 2 months’ salary.
It is not due when the termination occurs during the probationary period, results from the employee’s decision or results from the employee’s negligence or serious misconduct.