Seafarer Subject Guide Abandonment in Hong Kong

SEAFARER SUBJECT GUIDE

ABANDONMENT IN HONG KONG

This Guide deals with the situation where seafarers are abandoned in a port in Hong Kong or on a Hong Kong flagged vessel in a port outside Hong Kong. This document is not intended to be legal advice, nor does it constitute legal advice. If a seafarer is abandoned, he is strongly advised to consult a lawyer qualified to practise in Hong Kong.

Preliminary: Hong Kong has ratified the International Labour Organization (ILO) Repatriation of Seamen Convention, 1926 (C23). Hong Kong has not ratified the International Labour Organization (ILO) Repatriation of Seafarers (Revised) (Geneva, 9 October 1987) (C166). Hong Kong has not ratified the International Labour Organization (ILO) Maritime Labour Convention 2006.

1. When is a seafarer considered abandoned according to national case law or legislation? Is there any special legislation concerning abandoned crew?

1.1 There is no specific definition of an abandoned seafarer in Hong Kong.1

1.2 The Merchant Shipping (Seafarers) (Repatriation) Regulation (Cap 478Q) applies to seafarers of any nationality on Hong Kong ships, who ‘became so employed outside Hong Kong and left behind in Hong Kong.’

1.3 For seafarers employed on non-Hong Kong ships, section 78 of the Merchant Shipping (Seafarers) Ordinance applies to ‘any seafarer’ discharged or left behind on ‘any ship.’ This section provides for the procedure upon discharge and for seafarers left behind in Hong Kong.

2. What is the immigration status of abandoned seafarers?

2.1 Pursuant to section 12 of the Immigration Ordinance (Cap 115), the Hong Kong Immigration Department may permit seafarers to land in Hong Kong, without being examined on arrival. Their immigration status would be as seafarers and they could work in Hong Kong as seafarers only.

2.2 Pursuant to regulation 2 (5) of the Immigration Regulation (Cap 115A), the conditions of stay for a seafarer are that he shall not remain in Hong Kong after the date of departure of the ship or later than 14 days after the date of landing.

1 See Halsbury’s Laws of Hong Kong volume 18 (1) para 250.322.

Abandonment in Hong Kong: This Guide reflects the law in 2013. © SRI Copyright 2013 Disclaimer: Seafarers’ Rights International (SRI) endeavours to keep the contents of this Guide up to date and correct in all respects. However SRI makes no representations or warranties of any kind, express or implied, about the completeness, reliability, or applicability of this Guide to any individual case. Any reliance placed on this Guide is strictly at the person’s own risk. SRI disclaims any liability for any loss or damage of any kind arising from the use of this Guide. Page 1/8

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2.3 An abandoned seafarer will be illegally in Hong Kong when the ship leaves Hong Kong waters and he is in breach of his conditions of stay.

2.4 Pursuant to section 13 of the Immigration Ordinance (Cap 115), the Immigration Department has a discretion to allow abandoned seafarers to remain in Hong Kong subject to conditions of stay.

2.5 If the permit of a seafarer to stay is extended, the abandoned seafarer will be permitted to stay in Hong Kong as a visitor and he cannot work in Hong Kong.

3. Can an abandoned seafarer get shore leave?

3.1 An abandoned seafarer will be allowed to land in Hong Kong.

4. Is abandonment of seafarers considered a crime?

4.1 Abandoned crew are dealt with by the Superintendent of the Mercantile Marine Office as specified in section 5 (1)(b) and s 76(1) of the Merchant Shipping (Seafarers) Ordinance (Cap 478)). For seafarers employed on ships from countries other than Hong Kong, pursuant to section 78 of the Merchant Shipping (Seafarers) Ordinance, the master or employer shall notify the consulate (if available) or in the alternative the Superintendent of the Mercantile Marine Office (the ‘Superintendent’) of the abandoned seafarer. Unless due provision is made for the subsistence and maintenance of the abandoned seafarer to the satisfaction of the consulate or Superintendent, the master or employer has committed an offence and is liable to imprisonment and a fine. Further, the employer may be ordered to pay the costs of transporting the seafarer to any place outside of Hong Kong as a fine in the criminal proceedings.

4.2 Pursuant to section 78(3) of the Merchant Shipping (Seafarers) Ordinance (Cap 478):

‘any master or any other person who forces on shore and wrongfully leaves behind in Hong Kong any seafarer belonging to such ship before the completion of the voyage, commits an offence and is liable on conviction to a fine of Hong Kong$10,000 and to imprisonment for 6 months.’

4.3 If a seafarer is abandoned in Hong Kong and is employed by a Hong Kong ship under a crew agreement outside of Hong Kong, then the employer is responsible for his return and also his relief and maintenance until the return.2

2 Ibid, para 250.322.

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4.4 The provision for relief and maintenance includes food and lodging, clothing, toilet and other personal necessaries, surgical or medical treatment, reasonable costs for the defence of the seafarer in any criminal proceedings, and sufficient money to meet ancillary expenses.

4.5 An employer who fails to return the seafarer, make the statutory provision, inform the Superintendent or keep him informed as required commits an offence, punishable by a fine (pursuant to the Merchant Shipping (Seafarers) (Repatriation) Regulation s 4(7), 5 (4) and 6(2)).

4.6 A master who fails to make entries, in relation to a seafarer left behind by the ship, of the relevant date, place and reason in the official logbook and the list of crew, or of any provision made on the employer’s behalf to ensure that the Superintendent is informed of the particulars in the official log book commits an offence punishable by a fine.

4.7 Should the employer fail to make any or sufficient provision for the seafarer, then the Superintendent should make such a provision. Any expenses incurred by the Hong Kong government or seafarer for relief and return for which an employer is responsible are recoverable as a civil debt against the employer.

4.8 If the abandoned crew has a consulate, then the consulate should be contacted. If not, then the abandoned crew can contact the Superintendent at (852) 2852 3063.

5. What entities and/or persons may be involved with or assist an abandoned crew?

5.1 The following entities and/or persons may be involved with or assist an abandoned crew.

5.2 Lawyers

5.2.1 Lawyers who have subscribed to the SRI Charter of Good Practice for the Provision of Legal Services to seafarers are listed below and the list is kept up-to-date at

https://www.seafarersrights.org/seafarers_subjects/using_lawyers_/find_a_lawyer

Stephenson Harwood LLP Hong Kong 35th Floor, Bank of China Tower, 1 Garden Road, Hong Kong, China

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Andrew Rigden Green Email: [email protected] Telephone: +852 2533 2761, mobile: +852 6013 2520

5.2.2 In addition, reference might be made to the Guide on Using Lawyers and Fact File available at

https://www.seafarersrights.org/seafarers_subjects/using_lawyers/

5.3 Government departments/bodies

Superintendent of the Mercantile Marine Office +852 2852 3063.

5.4 Embassies and consuls

5.4.1 Below are central contact details of embassies and consuls for major labour supply countries.

India Unit D, 16th Floor, United Centre 95 Queensway Admiralty, Hong Kong Telephone: +852 3970 9900 Fax: +852 2866 4124 Email: [email protected]

Indonesia Blk B, 2/FI., Unit 202, Tonic Industrial Center 19 Lam Hing Street, Kownloon Bay, Kowloon Hong Kong, SAR. Telephone: +852 2180 9888 Fax: +852 2151 9191 Mobile: +852 6222 4345 E-mail: [email protected]

Malaysia Consulate General of Malaysia, Hong Kong 24th Floor, Malaysia Building 47-50 Gloucester Road Wanchai, Hong Kong Telephone: +852 2821 0800

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Fax: +852 2865 1628, +852 2527 8826 Email: [email protected], [email protected]

The Philippines The Philippine Consulate General in Hong Kong SAR 14/F United Ctr, 95 Queensway, Admiralty, H.K. Telephone: +852 2823 8500 / +852 2823 8501 Fax : +852 2866 9885 / +852 2866 8559 Email: [email protected]

Russian Federation Consulate General of the Russian Federation in the Hong Kong SAR, Macao SAR, PRC Rm. 2106-2123, 21/F, Sun Hung Kai Centre, 30 Harbour Road Wanchai, Hong Kong Telephone: + 852 2877 7188, Emergency: + (852) 9194-7659 Fax: + 852 2877 7166; E-mail: [email protected]

Turkey Consulate General of Turkey in Hong Kong Room 301, 3/F, Sino Plaza, 255-257 Gloucester Road, Causeway Bay, Hong Kong S.A.R. Telephone: +852 2572 1331, +852 2572 0275 Fax: +852 2893 1771 E-mail: [email protected] Website: hongkong.bk.mfa.gov.tr

United States U.S. Consulate General Hong Kong & Macau Address: 26 Garden Road, Hong Kong Telephone: +852 2523 9011 Fax: +852 2845-1598 Email: [email protected]

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5.5 ITF Inspectors and union officials

Jason Lam Wai Hong, ITF Inspector ITF (FOC) Campaign Office Rooms 11105 Alliance Building 130-6 Connaught Road C Sheung Wan Telephone: +852 2541 8133 Mobile: +852 9735 3579 Email: [email protected]

Yu-Sak Ming, ITF Inspector Merchant Navy Officers' Guild - Hong Kong Rooms 11105 Alliance Building 130-6 Connaught Road C Sheung Wan Telephone: +852 2541 8133 Fax: +852 2541 5045 Mobile: +852 9352 8651 Email: [email protected]

Amalgamated Union of Seafarers, Hong Kong Flat C 2nd Floor Sun Shing Building 6 Belchers Street Telephone: +852 2819 7694 Fax: +852 2855 0775 Email: [email protected]

Federation of Hong Kong Transport Workers' Organizations 19/F. Wing Wong Commercial Building 557-559 Nathan Road, Kowloon Telephone: +852 2770 8668 Fax: +852 2770 7388 Email: [email protected]

Hong Kong Seamen's Union A4 2F United Court 37G Jordan Road, Kowloon

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Telephone: +852 2332 0766 Fax: +852 2770 2015 Email: [email protected]

Hong Kong Storehouses, Transportation & Logistic Staff Association Flat F, 5/F Cheung Shing Building 1-5 Cheung Sha Wan Road Telephone: +852 2776 3876 Fax: +852 2788 0600 Email: [email protected]

Merchant Navy Officers' Guild - Hong Kong Rooms 1401 Alliance Building 130 - 136 Connaught Road Central Sheung Wan Telephone: +852 2545 8269 Fax: +852 2541 5064 Email: [email protected]

Union of Hong Kong Dockers 7/F Wing Wong Commercial Building 557-559 Nathan Road, Kowloon Telephone: +852 2770 8668 Fax: +852 2384 0261 Email: [email protected]

ITF (FOC) Campaign Office Rooms 11105 Alliance Building 130-6 Connaught Road C Sheung Wan

5.6 Welfare agencies

Mariners Club Kwai Chung Address: Mariners' Club 2 Container Port Road Kwai Chung New Territories, Hong Kong Facilities: Bar, pool table, darts, table tennis, barber's shop, souvenirs, library, postal facilities, money exchange, IDD call, TV lounge, Launch picnics, internet, email, wi-fi Opening Hours: 1000-2300

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Telephone: +852 2410 8240 Email: [email protected]

Mariner’s Club Address: Mariners' Club 11 Middle Road Kowloon Hong Kong Facilities: Restaurant, bars, ten pin bowling, darts, table tennis pool table, swimming pool, photocopying, fax, money exchange, international calls, internet, wi-fi Opening Hours: 24 hours Telephone: +852 2368 8261 Email: [email protected]