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Joined: 21/03/2009
Posts: 5
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I am looking for some help or insight in to where myself and my partner
stand with regards to a recent delivery of a motor yacht from San
Juan Puerto Rico to Fort Lauderdale, Florida. Our I-94 entry was
stamped in to the usa on 24 jan 10 and the end date was 9th Feb 10.
We
left San Juan on the 5th of Feb and arrived to Fort Lauderdale on 9th
Feb at around 10pm. The stand in Captain informed us that we would be
clearing in to either Dominican Republic or The Bahamas during the
trip, which would enable us to be stamped in on a new B1 visa for 90
days(the length of our yard period)upon arrival to USA. The captain did
not notify San Juan customs & immigration of our departure to my
knowledge and did not clear any foreign immigration during the voyage.
After
arriving in FL the captain told us we were all OK to leave the boat(i
knew this was not the case). I went straight to immigration and
informed them of our arrival. The Officer told us that the captain was
´playing with our lives´ and we needed to leave the country before
midnight so we would not be arrested & deported.He drove us to the
airport to help us out because he thought we were not at fault.The
flight left at 11:59pm.Phew!
I am writing from the Dominican
Republic know, and would like to know what duty of responsibility or
duty of care that captain has in this situation and if hes has done any
wrong doing.
This trip has been very costly and i would just
like to know if it all falls on my shoulders to ensure this did not
happen and is my fault or responsibility which i will take in full OR if it is the captains wrong
doing, and if so -will seek compensation through legal avenues.
Thank you for your time and look forward to any response or help received.
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Joined: 19/05/2008
Posts: 49
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Who was responsible for having the correct visas will be down to your employment contract. The contract should also state where any dispute is to be litigated. This will also tell you which lawyer, in which jurisdiction, you need to consider your rights. If there was no contract, then you’ll have little or no comeback in practical terms – just learn the lesson never to work without a contract. If there was a contract, but no ‘law and jurisdiction’ clause, then the contract will probably be governed by the yacht’s Flag State. You may not have any comeback in any case if you knew you shouldn’t have left the boat, but did so anyway. The most likely scenario is that the governing law obliged the employer to arrange for the correct visas, but only as seafarers, which often does not allow you to leave the boat or sometimes the port precincts.
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Joined: 21/08/2008
Posts: 30
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I am curious. Did you contact the captain and tell him what happened? If so, did he not acknowledge his fault and try to do the right thing? If I have learned nothing else from reading forums on this website, it is that there are a lot of people out there who think they know what to do and don't. I think the take-away message is that it is okay to trust your captain, but you should always verify what you are told if it does not sound right. Rough luck.
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Joined: 21/03/2009
Posts: 5
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Matrix & Tiffany- thankyou for your responce We do have a contract but it does not state anything about visas. It does state information with regards to where dispute is to be litigated etc. We are currently gathering as much peprwork and information as possible before contacting a maritime lawyer.Upon arrival back to the yacht after this mess, the Owners assistant told us that we had been made redundant, and had 1 hour to leave the yacht(another breach of the contract). After reading through my contract i have found these 2 pieces of information that should be of help! 1'''Either the Crew Member or the Employer or may give to the other notice (in writing) to terminate the Crew Member's employment under this Agreement at a port set forth in such notice, such notice to be given two weeks before the date of termination except in the following situations where no notice is required, as follows:''(We did not breach our contract therefore this should stand) 2''Crew Member’s phone and travel related expenses attributable to the Vessel will reimbursed by the owner/vessel provided the costs are reasonable.'' Tiffany- i did contact the captain when we were on our way to the airport. His reply was 'oh sh*&$'. I have not heard from him since. The owner has also stated that he will only pay us up until the evening we left the boat to go to Dominican republic. If anyone would like the boat name & details of the vessel i would be more than happy to give it to them. They have treated us like animals after working so hard and being so loyal, and i do not wish any other crew member in this industry to have to work for them
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Fair Dismissal
Dismissal is only fair if the employer can show that the reason for the dismissal was for a fair and valid reason and was dealt with in a fair manner. It must include one of those reasons listed below and the tribunal must be satisfied that the employer acted reasonably in the circumstances to justify dismissing the employee. The acceptable reasons are
1. One related to the employee’s capability or qualification for the job, ill health or a change in qualification requirements.
2. One related to employee’s conduct, (a paragraph 5 or 9 breach of the MN Code of Conduct). 3. Redundancy. 4. A statutory duty or restriction on either the employer or the employee which prevents the
employment being continued, for example a suspension of a certificate of competency.
The following cannot complain of unfair dismissal: 1. Those who are not employees, e.g. independent contractors or free-lance agents. 2. Employees who have not completed two years continuous employment with their employer at
the effective date of termination. The qualification period of two years is reduced to four weeks where an employee is dismissed on medical grounds in consequence of certain health and safety requirements or recommendations. There is no qualification time at all for employees who are dismissed for their own trade union membership or trade union activities.
3. Part-time employees who normally work less than 16 hours a week, unless they have been continuously employed by their employer for at least 8 hours a week for five years or more.
4. Employees who, before their effective date of termination had reached the normal retiring age for their employment or, if there is no normal retiring age, had reached the age of 65 for men or 60 for women. (63 for MN officers).
5. Employees with fixed term contracts for one year or more where the dismissal consists only of the expiry date of the contract without renewal and the employee has previously agreed in writing to forego the right of complaint in such circumstances
6. An employee who is the husband or wife of the employer 7. Employees who ordinarily work outside the United Kingdom under the terms of their
contract of employment. Most merchant seamen on UK registered ships and most employees working on off-shore oil and gas installations in British sectors of the Continental Shelf can complain of unfair dismissal
8. Members of the police service and the armed forces. 9. Masters and crew engaged in share fishing who are paid solely by a share in the profits or
gross earnings of a fishing vessel. 10. Employees covered by a dismissal procedures agreement which has been exempted from the
unfair dismissals provisions by an Order made by the Secretary of State for Employment
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Joined: 05/08/2008
Posts: 84
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It is absolutely the Captain who is responsible for clearing Customs and Immigration on your behalf when employed on the yacht especially during passages, my God what was the stupid relief Captain thinking. Unfortunately the Customs and Immigration officers are not interested in your case and not interested in taking it further and their brief is really issuing you with a notice that you are not able to return for xyz years etc or deporting you. In the meantime the idiot who didn´t clear you through the system has joined another yacht and probably doing the same thing to other crew. The owner won´t be interested probably, the current Captain who was away at the time neither and the contracts, often written to cover the boats bum are not worth tackling either. Sadly it is too costly to pursue much at all. Legal fees will eat you up and owners and management companies will fob you off until the cows come home. If you have a contract, they are worth something if they are fair to both sides. My contract I had passed by Flagstate, and they state quite clearly everything that might come up during a course of someones employment, after all it is a work contract and has to cover all eventualities from both sides. Really there should be a standard contract covering a persons rights on all yachts, perhaps the MCA and Flagstates should write one. The British Merchant Shipping have thier own contracts which is what I have pretty much adopted and chaged about to suit our operation, but again nothing in it to take away the crews rights. It appears there are a number of yachts out there that write contracts that are able to flick crew at a moments notice anywhere. Remember the basic rights that even if you don´t have a contract a yacht MUST pay for your repatriation, they cannot dump you in some remote location. Even if you have done something wrong, they might sack you but still have to repatriate you. It is hight time the industry got this side sorted......among other things as well which lag way behind other similar industries such as Merchant Shipping, Airline industry and the Transport industry. It will and is happening but not fast enough. Capt Kaj
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