German Courts issue a landmark judgement on non EU crew working in German waters
In October 2017, the Atlantic Tonjer was working at sea in German waters when the German police boarded the ship and issued an order to the Master and owners to remove two crew, both non EU nationals, from the ship immediately. They also ordered the two crew members to leave the country. This order was issued by the marine police on the basis that the non EU nationals were not entitled to be working on board a “mobile working platform” inside German waters (12M limit).
One of the crew members was the Chief Engineer and this action was taken whilst the ship was actually at work, at sea. Owners then had to obtain an urgent permit from the flag state to remain at sea while a replacement was found. Despite excellent work cover from the other engineering officers on board, this left the vessel operating without a C/E for 24 hrs and was a clear breach of the crew MLC agreements, not to mention the safety aspects of removing a senior officer whilst the vessel was at sea in operation.
Atlantic Marine have therefore challenged the police decision through the German courts.
Firstly, the court found itself competent to decide this matter, thereby rejecting the attempt of the Federal Police to refer this matter to a different court by arguing that their orders have been issued on behalf of the Ministry of Inner Affairs of the State Mecklenburg-Vorpommern.
The court further decided that our application to suspend the police orders (technically speaking: to reinstate the suspensory effect of our objections against the police orders) is admissible and justified. In the view of the court the orders of the police were clearly unlawful. The reasons therefore are, in summary, as follows:
· The Federal Police was not competent to issue an order setting a deadline to leave German territory. Only the Ausländerbehörde (foreigners’ registration authority) would be entitled to such measure.
· The prerequisites to request the applicants to leave German territory have not been fulfilled.
· There is no requirement for a visa or work permit for crew members on board of a vessel in German territory waters.
· The applicants have been in possession of a Schengen Visa respectively biometric passport which allows them to enter the Schengen territory.
· The “ATLANTIC TONJER” cannot be regarded as a mobile working platform. She is rather comparable with a salvage vessel and is considered to be a seagoing vessel.
I am providing this information to my linked-in contacts on the basis that we at Atlantic Marine wish to ensure that ALL seafarers are treated fairly and correctly under international laws, and should not be discriminated against on the grounds of Nationality. Atlantic Marine has stood by its crew and the Master in this matter and we are proud to do so. We have since learned that several other ship owners have also had similar problems, include a German owner, so I felt that this article would assist with guidance in the event this happens again.
It should be noted that the German Police do have 14 days to appeal this decision, so it is not yet set in stone.
The principal and judgement have both been set here and I believe it is important that vessel owners and charterers note this judgement and support international law in respect of non EU crews. Atlantic Tonjer continued with the charter contract after this police visit and carried out a successful charter for our clients. Only a few hours of operational time was lost as a result of the police action, but as a result of our application to the courts, we are now we are pleased to say that our EU and our non EU crew can continue to work and support the Atlantic Marine fleet in German waters with a knowledge that they are entitled to be there and to work on board.
Source: Paul Crowther, CEO / CHAIRMAN Atlantic Marine & Aviation LLP