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Maxim A. Kocherzhenko
The reimbursement of damages for the seamen's injuries and deaths is a rather topical problem both for shipowners and for seamen. This brings us to the necessity to analyze the existing situation from the legal viewpoint.
As the practice goes in case of the seaman's injury or death a one-time compensation is payable where the amounts of compensations are usually set in the employment contracts or collective agreements. But how to estimate the amount of the disability or the death compensation if there is no reference to these payments in the employment contract or a collective agreement? In order to do so we have to look into the active Ukrainian legislation.
Up to the 21 November 2002, the assessment of the sums due and payable to the employees (seafarers including) or to their relatives as a compensation for damage to health and death of the employee, related to fulfillment of his labour duties, has been governed by the Law of Ukraine “On Labour Protection”. This law established the order, forms, as well as the amounts of compensation to be paid by the owners of the enterprises for damage to health and for the death of all categories of workers.
On the 21 November 2002, the Ukrainian Parliament adopted the Law of Ukraine “On Insertions Of Amendments Into The Law Of Ukraine “On Labour Protection”, which enacted that henceforth damage to health or death of employee must be compensated in accordance with the Law of Ukraine “On Compulsory State Insurance Against Professional Accidents and Occupational Diseases Resulted In Disability”.
The aforementioned law set the procedure, forms and amounts of compensation for damage to health and for the death of workers. At that, the said compensation is paid by the Accident Social Insurance Fond, not by the owners of the enterprises, and only to those workers, for whom their enterprises pay social insurance fees.
Therefore, upon coming into force of the Law of Ukraine “On Insertions Of Amendments Into The Law Of Ukraine “On Labour Protection”, dated 21.11.2002, the point as to the amount of compensation for damage to be paid to workers, who are employed at enterprises that do not pay insurance fees to the Accident Social Insurance Fond turned out to be left undefined. Seafarers who sign employment contracts with foreign shipowners and serve on foreign flagged vessels can be referred to the above-mentioned category of workers.
Civil Code of Ukraine is the only law in Ukraine, which now can be applied to the procedure of damage compensation caused by injury or another damage to the health of a seafarers who work in a foreign shipping company.
According to the Civil Code of Ukraine compensation for damages are effected by monthly payments in the amount of lost seafarer’s wages which were lost by him due to the professional or general disability. The amount of seafarer’s lost wages to be compensated is determined as a percentage of average monthly wages that the victim had before the injury or another damage to health, taking into account the degree of seafarer’s disability. The average wages are calculated at the request of the victim for twelve or the last three calendar months of work. The lost earnings include all types of remuneration under the employment contract, excluding compensation for unused vacation and severance pay.
Thus, calculating the amount of damage, caused to the health of the seafarer, it is necessary to consider not only the basic wages, but also a fixed or guaranteed overtime.
According to the Civil Code of Ukraine in addition to the lost wages the injured seafarer is entitled to the additional costs caused by the need of high-calorie diet, sanatorium and health resorts, purchase of medicines, prosthetics, nursing care, etc.
Also, the Civil Code of Ukraine provides the victim (seafarer) with the right to claim moral damages.
In case of the seafarer’s death persons who are entitled to the compensation for damage receive average monthly wages of the victim with the deduction of share which was due to the victim and able-bodied persons, which were maintained by him. The family can also claim moral damages.
In addition, the shipowner must reimburse the funeral expenses and the costs of the memorial construction to the person who has incurred these expenses.
