Seafarer Discharge in South Africa

Discharging a Seafarer or Cadet in South Africa with Unresolved Disputes

• Procedure applies when discharging a seafarer or cadet from a South African ship in a South African port.
• This occurs before the agreed contract expires.
• It involves a legitimate dispute over unpaid overtime wages.
• The master is willing to report the seafarer or cadet.
• The proper officer must be present during the discharge.
• An account of wages must be completed, which shows all income, deductions, and the balance due.
• Any disputed sum of money should be paid to the seafarer or cadet.
• Allotments must be stopped
• An OLB (Official Log Book) report must be completed on the seafarer or cadet's service.
• The 'Seafarer’s Record Book and Certificates of Discharge' must be completed and signed.
• Personal documents and effects of the seafarer or cadet must be returned.
• Details of the discharge are entered into the TV5/204 - Crew Agreement form.
• The release column is endorsed with "See TV5/209 & TV5/215".
• Details of the discharge are also entered in subsection (c) of the TV5/209 form.
• The release column is endorsed to read "See TV5/215".
• Details are entered in the prescribed TV5/215 form, named "Release on Termination of Service with Note of Excepted Claims and Demands."
• The seafarer or cadet has to sign the TV5/215 in the presence of the proper officer.
• The form should state that the seafarer or cadet releases the master and ship from all claims, except for the disputed non-payment of overtime wages.
• The proper officer signs as a witness to the conditional release on the TV5/215 form
• The master confirms the conditional release by signing the TV5/215 and TV5/209 forms.
• A copy of the completed TV5/215 is provided to the seafarer or cadet upon request.
• A comprehensive narrative entry must be made in the ship’s OLB regarding the discharge process.
• The completed TV5/209 and TV5/215 forms are given to the proper officer before the ship leaves port.
• The master has to endorse the TV5/204 to confirm the seafarer or cadet has been lawfully discharged.
• The master obtains a TV5/210 form, stating the discharge was completed according to the law.
• The TV5/210 may need to be shown to customs, if required

Discharging an Ill Seafarer or Cadet Outside South Africa

• This procedure is used to discharge an ill seafarer or cadet from a South African ship outside of South Africa.
• The procedure is used when there is no protest, dispute, or DR to be considered.
• The seafarer or cadet must be hospitalised and conscious.
• The proper officer has to be notified in writing to obtain authority to discharge the seafarer or cadet, and to leave them in the local hospital.
• The ship’s agent must be notified to arrange the seafarer or cadet's return to their proper port.
• The P&I Club representative of the ship owners has to be notified, to arrange payments for medical, recuperation, accommodation, and repatriation expenses
• Compliance with local immigration regulations and procedures are required, as advised by the agents.
• An account of wages for the seafarer or cadet has to be completed, using the TV5/213 form.
• Allotments must be stopped.
• An OLB report must be completed on the seafarer or cadet’s service.
• The seafarer’s 'Record Book and Certificates of Discharge' must be completed and signed.
• The seafarer or cadet's property must be collected, and a comprehensive list of their effects must be made.
• The list of effects must be signed by the packer and a witness.
• All documents belonging to the seafarer or cadet have to be gathered and included in the list of their other effects.
• Details of the ill seafarer or cadet's discharge are entered in the TV5/204.
• The release column of the TV5/204 must be endorsed with “See TV5/209”.
• Discharge details are entered in subsection (c) of the TV5/209 form.
• This concerns "Changes affecting the Agreement with the Crew before its termination".
• The seafarer or cadet has to sign the release column on the TV5/209 form at the hospital.
• A witness must countersign the release of the seafarer or cadet on the TV5/209.
• The master then has to date and sign the TV5/209 to confirm the release.
• The seafarer or cadet is handed a copy of the TV5/213, which shows the balance of wages due and a list of their effects and documents.
• The seafarer or cadet must check their possessions.
• All money due must be paid in full.
• The seafarer or cadet must sign for their money, personal effects, and documents.
• The master endorses the TV5/204, stating that the seafarer or cadet was lawfully discharged.
• The completed TV5/209 and TV5/213 forms are given to the proper officer before the ship leaves.
• These forms are then forwarded to the proper officer at the port where the crew was originally engaged.
• A detailed entry has to be made in the OLB.
• It must include illness, treatment given onboard, discharge from the ship, and subsequent hospitalisation.
• Statutory manning levels must be checked.
• A substitute seafarer must be engaged, or an exemption must be applied for if necessary.

Additional Procedure if the Master Declines a Report

• If a master declines to express an opinion on a seafarer or cadet's conduct, character, and ability, the discharge is made before a proper officer.
• A report is furnished on a TV5/238 form, stating the master's decline to provide an opinion.
• The proper officer gives the seafarer or cadet a copy of/or endorses their certificate with a copy of that report.
• The master enters the reasons for declining the report in the OLB's narrative section.
• Upon request, the master reads the reason aloud in front of the proper officer.
• The seafarer or cadet can request their union or legal representative to be present.
• The proper officer has to give the seafarer or cadet a reasonable opportunity to make a statement on the report, when possible.
• The proper officer who receives the TV5/238 forwards it to the proper officer at the port where the crew agreement was initially opened.
• A master declines a report on a seafarer or cadet's conduct, character and ability at the end of the voyage or engagement.
• A history of bad conduct/poor performance should have been recorded in the OLB, with written warnings provided.
• Master is justified in declining a report on past behaviour, provided all procedures were correct.
• The procedure is additional to those discussed earlier.
• The master must enter their reasons for declining a report in the OLB.
• The master has to give the proper officer a signed TV5/238, with parts A to D completed.
• The proper officer has to attend the discharge proceedings.
• The master has to read their OLB entry aloud upon request of the seafarer in the presence of witnesses.
• The seafarer or cadet may now respond, with their reply recorded in the OLB and in part E of the TV5/238.
• A relevant report by the proper officer is recorded in the OLB and in part F of the TV5/238.
• A copy of the TV5/238 is given to the seafarer or cadet upon request.
• A copy of the TV5/238 may be appended to the OLB, if necessary.
• Entries in the OLB must be dated, signed, and witnessed.
• The completed TV5/238 must be given to the proper officer before the ship leaves port.

Seafarer's and Cadet's Wage Rights

• The owner of a foreign-going ship pays each seafarer or cadet when they lawfully leave the ship at the end of their engagement.
• This includes the sum of R50,00, or half of the balance of wages due, whichever is lesser, and the remainder of wages within two days after leaving the ship.
• If wages are not paid or settled as indicated, they shall continue to run and be payable until final payment, unless the delay was because of:
  • The act or default of the seafarer or cadet.
  • A reasonable dispute as to liability.
  • Any cause not being the wrongful act/default of the master.
  • Any cause not being the wrongful act/default of the owner or contracted employer.
• The owner or master of a coasting ship or fishing vessel must pay the seafarer or cadet within two days of their lawful discharge the full balance of wages due.
• Failure to pay wages without reasonable cause results in owing 2 days' pay for each day the payment is delayed.
• The additional sum payable should not exceed 10 days' double pay, and may be recovered by the seafarer or cadet as wages under the Merchant Shipping Act.
• If a seafarer or cadet's service is terminated before the agreed date due to being left behind at a place other than a proper return port owing to illness, hurt or injury:
  • They are entitled to wages at the contracted rate from the date of termination until their arrival at a proper return port.
  • Unless their illness, hurt, or injury was caused by their own wilful act, default, or misbehaviour.
  • Unless they unreasonably refused medical or surgical treatment without risk to life.
  • The period cannot exceed 90 days or be less than 60 days, or when the agreement expires (whichever is shorter).
• A seafarer or cadet is not entitled to wages for any period:
  • During which they are absent without leave from their ship or duty.
  • During which they unlawfully refuse/neglect to work when required.
  • During which they are lawfully imprisoned, unless the court directs otherwise.
  • During which they are incapable of working due to being under the influence of liquor or a drug.
• A deduction from income due to these events is known as a forfeiture.