Employment of Spanish crew on foreign-flagged yachts in the Balearics: legal considerations and challenges

It is quite common that our foreign flagged fleet in the Balearics employs Spanish nationals as crew members. In these cases we are often asked if there could be any complications or difficulties with the Administration (mainly with the Spanish Social Security and the Tax Authorities).

The first thing we have to know is that the labour obligations of any yacht owner with respect of the crew according to national and international conventions are ruled by those of the flag state, no matter the crew nationality nor where the vessel is lying.

Any ship owner – no matter if charter or private use – must observe all flag state national and also international rules, regulations and standards for seafarers (STCW 95 , Code ISM, 2006 Maritime Labour Convention, etc) and have  all members of the crew  according  the Manning Certificates with their national seafarer´s qualifications, certificates and endorsements, together with the seafarer´s  certificates of medical fitness and covered with medical insurance.

That means, even if the vessel has its main port base in Spain, he crew is from Spanish nationality with Spanish qualifications and endorsements  and the charter is in Spanish waters  the vessel is considered as foreign territory if she flies foreign flag and no Spanish Law is applicable in labour matter. This has been also ratified by Court decisions in claims of Spanish crew members employed by foreign flagged vessels  launched against  the ship-owners trying to submit their labour relationship to Spanish Law  (applying for rights and benefits in matters of Social Security, disability, retirement, or widow´s pension. This was the case for example in a recent Court Decision of 4.11.2015 in the High Court of the Balearic denying the request to the Spanish Social Security to pay widow´s pension to the skipper and captain of a Bahamas flagged vessel that never had paid in Spain social contributions.

However, there are much more doubts when the vessel is not sailing nor moored but in a shipyard. The shipyard might attract to non Spanish flagged vessels Spanish Labour legislation due mainly to labor risk policy. The shipyard is considered a separate place of activity different from the vessel and also due to the specific labour risks matters we have seen in some occasions Labour Inspections on foreign flagged vessels discussing the possibility of the crew members  working on the vessel while ashore. The problem is that cases is that neither the Law nor the Labour Inspection have a clear definition of what is the ship as “labour centrer”. In all the occasions we were involved with this problem at the end the Labor Inspection refuse to apply Spanish legislation assess Social  Security contributions, penalties and sanctions.

 

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