Solicitud directa (CEACR) - Adopción: 1995, Publicación: 83ª reunión CIT (1996)

Article 1, paragraph 1 (scope of the Convention), together with Article 11 (equality of treatment for all seamen irrespective of nationality, domicile or race). In previous comments, the Committee questioned the effect on the application of the Convention of section 688(b)(1) of the Jones Act, as amended in 1982 which prohibits non-resident foreign seamen from claiming sickness, injury or death benefits if: they are employed in an enterprise engaged in exploration, development, or production of off-shore mineral or energy resources in the territorial waters or waters overlaying the continental shelf of a foreign nation; and they have a remedy available under the law of the nation asserting jurisdiction over the territorial waters, or under the law of either the seaman's country of nationality or residence. In reply to the Committee's comments the Government states in its report that the benefits prescribed under the Convention may be claimed by all seamen, regardless of nationality, in a common law maintenance and cure claim brought under the general maritime law. The Government adds that the Jones Act, as amended in 1982, bars foreign seamen in certain circumstances from bringing claims for additional damages which a seaman may be entitled to as a result of fault or negligence on the part of the shipowner, but that these claims are outside the scope of the Convention.

The Committee notes this information, as well as the extensive documentation supplied by the Government in its report. It also notes, however, that in Camejo v. Ocean Drilling & Exploration, the United States 5th Circuit Court of Appeals interpreted the clause "under any other maritime law of the United States for maintenance and cure or for damages" of section 688(b)(1) of the Jones Act as amended in 1982, as barring all claims under the general maritime law, and not just Jones Act-based claims (838 F.2d 1374, 1377). Therefore, it appears that foreign seamen who fit the conditions set out in the 1982 Amendment are also barred from bringing a common-law maintenance and cure claim. The Committee requests the Government to take the necessary measures, such as amending section 688(b)(1), to ensure that all foreign seamen employed on board any vessel engaged in maritime navigation, excluding ships of war, have the right to recover all entitlements specified in the Convention. It asks the Government to supply in its next report information on any progress made in this respect.