Introduction

This article has been prepared to answer the question, “I work as a seafarer, my wages haven’t been paid, what can I do?” Seafarers’ wage claims may be subject to different legal regimes depending on several variables such as the flag, tonnage, nature of the employment contract, and legal status of the employer of the vessel they work on. This study analyzes various Supreme Court, Regional Court of Justice, and Court of First Instance decisions presented, revealing with a holistic perspective what steps seafarers should take in this complex legal process, what rights they possess, and critical points they need to pay attention to. The study aims to illuminate the fundamental problems a seafarer may encounter during the process of seeking their rights and the solutions to these problems.

1. Determination of Applicable Law and Competent Court

In a seafarer’s wage claim lawsuit, the first and most critical distinction is determined by the status of the vessel they work on. This status determines which law will be applied and in which court the case will be heard.

Turkish Flagged Vessels and Vessels of 100+ Gross Tonnage: 

Workers on these vessels are subject to Maritime Labour Law No. 854 (MLL). As stated by the Court of Cassation, “According to Article 1 of Maritime Labour Law No. 854, this law applies to seafarers working under a service contract on vessels of one hundred gross tons or more carrying the Turkish Flag in seas, lakes, and rivers, and to their employers.” (Court of Cassation 9th Civil Chamber, 2011/17974 E.). In this case, pursuant to Article 46 of the MLL, the competent court is the Labour Courts. The authorized court, unless otherwise specified in the contract, is “the court competent to hear labour cases in the vessel’s home port.” (Regional Court of Appeals Istanbul 32nd Civil Chamber, 2017/597 E.).

Foreign Flagged Vessels or Vessels Under 100 Gross Tons:

 Workers on these vessels are outside the scope of the MLL. In this case, disputes are resolved according to the articles of the Turkish Code of Obligations (TCO) concerning service contracts, which is the general provision. While these cases were previously heard in Civil Courts of First Instance or Commercial Courts, with the Labour Courts Law No. 7036, a trend has emerged indicating that the competent court for all disputes arising from service contracts is the Labour Courts. Indeed, a decision by a Regional Court of Appeals has confirmed this situation by stating that “since the dispute between the parties arises from Articles 393 et seq. concerning the service contract regulated in the sixth section of the second part of the Turkish Code of Obligations No. 6098, there is no error in the court’s decision that the competent court is the Labour Courts” (Regional Court of Appeals Istanbul 18th Civil Chamber, 2022/2039 E.).

2. Who the Seafarer Should Sue: The Issue of Proper Defendant

Directing a claim lawsuit against the correct person/company is a prerequisite for the court to address the merits of the case.

Shipowner and Vessel Operator: Primarily, those who hold the status of employer are responsible for wage claims. This could be the shipowner, who is the owner of the vessel, or the vessel operator, who operates the vessel in their own name and for their own account. The Supreme Court emphasized that the operator who keeps the vessel under their own command and management is responsible, stating, “it belongs to the vessel operator” (Supreme Court 11th Civil Chamber, 2012/361 E.). Courts state that for the lawsuit to be directed against the correct defendant, it is necessary to “investigate the true owner of the vessel on which the plaintiff worked, along with its operator if any, and determine the responsibility of the defendants” (Supreme Court 7th Civil Chamber, 2013/6772 E.).

Agent and Company in Liquidation: If a foreign shipowner does not have a branch in Turkey, a lawsuit can also be directed against their agent who acts on their behalf. The Supreme Court has accepted that an agent who mediates the establishment of a seafarer’s contract may have passive legal standing as a defendant (Supreme Court 13th Civil Chamber, 2017/9430 E.). If the employer company has been liquidated, it may first be necessary to file a lawsuit for the “reinstatement of its legal personality” in order to file a claim lawsuit (Supreme Court 9th Civil Chamber, 2016/22828 E.).

3. Avenues for Seeking Rights and Powerful Legal Instruments

There are multiple legal avenues a seafarer can use to collect their claim.

Enforcement Proceedings and Action for Annulment of Objection: The most common method is to initiate enforcement proceedings without judgment through the enforcement office for unpaid wages. If the employer objects to these proceedings, an action for annulment of objection is filed in the competent court (usually the Labor Court) to ensure the continuation of the proceedings.

Maritime Claim, Statutory Lien Right, and Provisional Attachment: The seafarer’s wage claim qualifies as a “maritime claim”, which is a privileged claim under the Turkish Commercial Code. This was clearly stated in a decision by a Regional Court of Justice as: “claims related to wages to be paid to seafarers for their work on board the ship and other amounts owed to them confer a right of maritime claim” (Regional Court of Justice Istanbul 43rd Civil Chamber, 2020/1498 E.). This right grants the seafarer a statutory lien right over the ship. Consequently, a provisional attachment order can be requested to ensure the vessel is prohibited from sailing and to secure the claim.

Termination for Just Cause and Severance Pay: The non-payment of wages on time and in full, pursuant to Article 14/II-a of the Seafarers’ Labour Law (DİK), grants the seafarer the possibility to immediately terminate the employment contract for just cause. As emphasized by the Court of Cassation, this termination is “a unilateral declaration of will that must be directed to the other party,” and the seafarer exercising this right is also entitled to severance pay (Court of Cassation 7th Civil Chamber, 2013/2307 E.).

4. Burden of Proof and Evidence

In legal proceedings, proof is the most crucial element directly affecting the outcome.

Proof of Wage Amount and Employment: If there is a written contract, proving the wage becomes easier. If there is no contract or the wage amount is uncertain, the court “must determine an equivalent wage according to maritime customs, traditions, and practices” (Court of Cassation 9th Civil Chamber, 2010/51107 E.). The seafarer must prove their employment and claim with evidence such as a seafarer’s book, witnesses, and bank statements.

Proof of Payment: The burden of proving that wages have been paid rests with the employer. According to the Court of Cassation, “it is not possible to prove the payment of a monetary debt, such as wages, with witness testimony” (Court of Cassation 22nd Civil Chamber, 2012/11492 E.). The employer must prove payment with written documents such as bank statements or signed payrolls.

Conclusion

The process for a seafarer whose wages have not been paid to seek their rights is a complex path involving numerous legal and technical details. The court decisions reviewed clearly demonstrate how carefully the steps in this process must be planned.

In light of the reviewed court decisions, the fundamental steps to be followed and the points to be considered by a seafarer whose wages have not been paid in the process of seeking their rights can be summarized as follows:

Determination of Legal Status: The first and most important step is to determine the flag of the ship (Turkish/foreign) and its tonnage (below/above 100 gross tons). This determination directly affects the applicable law (Maritime Labor Law, Law of Obligations, Labor Law) and consequently the competent court (Labor Court, Civil/Commercial Court of First Instance).

Identification of the Correct Defendant (Party to Sue): The lawsuit should be directed towards the correct defendants, such as the ship owner (demise charterer/operator), ship operating contractor, the company appearing as the employer in the employment contract, or, in some cases, the Turkish agent of a foreign company. Filing a lawsuit against the wrong party may lead to the dismissal of the case.

Burden of Proof: The seafarer is obliged to prove that they worked and the amount of their claim, while the employer is obliged to prove that the wages were paid. Collecting and preserving evidence such as employment contracts, seafarer’s booklets, payrolls, bank records, and witness statements is of vital importance.

Use of Legal Remedies: A seafarer’s wage claim is considered a “maritime claim” under the Turkish Commercial Code (TCC), and this makes it possible to use strong security mechanisms on the ship, such as a statutory lien and precautionary attachment. The standard procedure, however, is generally to initiate enforcement proceedings and, in case of an objection, to file a lawsuit for “cancellation of objection”.

Right to Terminate the Contract: Non-payment of wages in accordance with the law or contract gives the seafarer the right to immediately terminate the service contract for just cause and claim severance pay.

As a result, it is recommended that a seafarer whose wages are unpaid follow these steps:

First, they should try to resolve the situation by communicating with the employer.

If no resolution is reached, they should determine the flag and tonnage of the vessel they work on to identify which law applies to them.

They should meticulously gather all evidence, such as the employment contract, seafarer’s book, payrolls, and bank records.

To collect their claim, they should initiate enforcement proceedings or file a direct lawsuit. They should not forget that their claim constitutes a “maritime claim” and that they can request a lien on the vessel and a precautionary attachment.

They should direct their lawsuit against the correct defendants, such as the actual owner (shipowner) or operator of the vessel.

Given the technical nature of seafarer’s claims, and the difficulties in determining the applicable law and competent court, it is essential to obtain professional legal assistance from an attorney specialized in maritime law and labor law from the outset of the process, to prevent loss of rights and ensure the process is conducted most effectively. An article suggestion.

Why is Expert Lawyer Support in Tuzla Necessary?

Lawsuits concerning seafarers’ wage claims are highly technical and require specialized expertise, as they involve both maritime law and labor law rules. This legal structure, which can vary according to the ship’s flag, tonnage, and the employer’s status, can lead to the procedural dismissal of the case or loss of rights if a wrong step is taken.

Especially in the Tuzla region, where shipyards, maritime companies, and agencies operate intensively, working with a Tuzla maritime law attorney specialized in this field provides a significant advantage.

Working with an experienced Tuzla lawyer who actively practices in the regions of Istanbul, Tuzla lawyer, Pendik lawyer, Maltepe lawyer, Kartal lawyer, Gebze lawyer, Aydınlı lawyer, Orhanlı lawyer, Tepeören lawyer, Darıca lawyer, Bayramoğlu lawyer, and Çayırova lawyer, ensures that you receive proper guidance at every step taken in this process and prevents serious losses of rights.

Thanks to the support of a Tuzla lawyer; the correct determination of the assigned and authorized court, the accurate identification of the shipowner or ship operator, the swift implementation of strong measures such as preliminary injunctions and statutory lien rights, the collection of necessary legal evidence at every stage of the process, and the ability to file a lawsuit without procedural error become possible. A Tuzla maritime lawyer is proficient in disputes encountered in shipyard areas and has experience in similar cases. For this reason, it is recommended that especially seafarers working in Tuzla shipyards seek expert support to avoid losing their rights.