Research On Crew’s Rights Under Ship Illegal Operation

At present,in China’s coastal waters,the ships without name,number,port of registry or certificate illegally engaged in fishing,transportation and other operations,the ships still engaged in illegal fishing during the closed fishing season and in the closed fishing areas,as well as the ships engaged in illegal sand mining,smuggling,smuggling and other illegal activities,have been constantly fighting.For the crew employed on these ships,whether they have the same right of claim for labor remuneration and compensation for personal injury as ordinary workers in the case of wages,labor remuneration default or personal injury,there are great disputes in both academic circles and judicial practice.Although the provisions of the Supreme People’s Court on Several Issues concerning the trial of cases involving crew disputes(hereinafter referred to as the Supreme People’s court’s judicial interpretation on crew)which came into effect on September 29,2020 has made clear the rules for the handling of the right of claim for labor remuneration of the crew working on such ships,the right of claim for personal injury compensation of the crew working on such ships has not been discussed.Moreover,even after the promulgation of the judicial interpretation,the other rights related to the claim for labor remuneration of the crew of illegal operation ships need to be further clarified.This paper intends to make a systematic study of the above problems,in order to clarify some theoretical misunderstandings,and to provide some useful guidance for our courts in dealing with such cases.This paper consists of four chapters.The first chapter introduces the general theory of the protection of workers’ rights under illegal operation,defines the meaning of "illegal operation" to be studied in this paper,expounds the influence of different illegal operation situations on the validity of labor contract,evaluates the different theoretical views on whether to recognize and protect workers’ rights under illegal operation,and puts forward the views of this paper.The second chapter introduces the crew’s right of claim for labor remuneration under the circumstances of illegal operation of ships,defines the "illegal operation of ships" to be studied in this paper,and expounds whether the crew can enjoy the right of claim for labor remuneration under the circumstances of illegal operation of ships,This paper analyzes whether the seafarers can enjoy the economic compensation for terminating the invalid labor contract according to the labor contract law and the claim right for damages caused by the invalid labor contract.The third chapter analyzes the right of claim for compensation for personal injury enjoyed by the crew in case of personal injury or death under the illegal operation of the ship.The crew with invalid labor contract can only claim the liability for compensation for personal injury based on work-related injury and tort.Firstly,this paper analyzes whether the seafarers can enjoy the right to claim compensation for work-related injury insurance under the illegal operation of the ship.Secondly,it analyzes the constitutive requirements and imputation principles of the seafarers’ claim for tort compensation under the illegal operation of the ship,and makes clear whether the seafarers can apply the principle of fault offset when they know the illegal operation.Finally,it analyzes the way to deal with the concurrence of industrial injury insurance liability and tort liability.The fourth chapter introduces the protection system of seafarers’ rights under the current law,analyzes the existing obstacles in the protection of seafarers’ rights under the current law,such as ship priority,P & I insurance,China’s implementation of the Maritime Labor Convention 2006,and draws relevant suggestions: first,learn from the German law to protect the rights of bona fide seafarers.Regarding the part of the invalid labor contract that has been performed as "factual labor relationship",the laborer has all the rights including labor remuneration and industrial injury insurance compensation claim under the assumption that the labor contract is valid,and explicitly excluding "criminal behavior or violation of public policy" from the factual labor relationship.Secondly,the application of fault liability principle in the maritime field under the limitation of labor relations.Thirdly,for the obstacles to the implementation of the Maritime Labor Convention 2006 in China,this paper proposes to draw lessons from the seafarer’s assignment reserve fund system to build a separate shipowner’s financial guarantee system.Finally,it is suggested that the claim for damages caused by the invalidity of the labor contract should be included in the scope of maritime lien guarantee.