Merchant Shipping (Seafarers) (Repatriation) Regulation
(Cap. 478, sections 86, 96, 104, 119 and 134)(Enacting provision omitted—E.R. 3 of 2022)
[2 September 1996] L.N. 342 of 1996
(Format changes—E.R. 3 of 2022)
(Omitted as spent—E.R. 3 of 2022)
In this Regulation, unless the context otherwise requires—
repatriation destination (遣返目的地), in relation to a seafarer who is entitled to be repatriated, means the place of return ascertained under section 7; (L.N. 76 of 2016) ship (船、船舶) means a Hong Kong ship.This Regulation applies to a seafarer who is employed to work on board a ship.
Subject to section 3B, a seafarer employed to work on board a ship is entitled to be repatriated under any of the circumstances specified in subsection (2).
The circumstances are—
the seafarer’s crew agreement expires;
the seafarer’s crew agreement is terminated—
by the employer of the seafarer; or
by the seafarer for justifiable reasons;
the seafarer has served on board the ship consecutively for—
11 months; or
any longer period agreed to by the seafarer in writing;
the employer is unable to fulfil the employer’s legal or contractual obligations to the seafarer because—
the employer is insolvent;
the ownership of the ship has changed; or
the ship has ceased to be registered in Hong Kong;
the seafarer—
is unable to or cannot be expected to carry out the duties under the crew agreement due to illness, injury or other medical conditions; but
is medically fit to travel;
the ship is on its way to a war zone to which the seafarer does not consent to go;
the ship is wrecked.
A seafarer’s entitlement to repatriation ceases if—
the seafarer, without reasonable cause, fails to comply with any reasonable arrangement made by the employer of the seafarer for the seafarer’s repatriation;
the seafarer informs the employer in writing that the seafarer does not wish to be repatriated; or
the employer does not know and could not reasonably have known of the seafarer’s whereabouts within 3 months after the date when the seafarer becomes entitled to be repatriated under section 3A.
If a seafarer is entitled to be repatriated under section 3A, the employer of the seafarer must make provision—
for the seafarer to be returned to the repatriation destination as soon as practicable;
for the seafarer’s relief and maintenance from the time the seafarer is entitled to be repatriated until the seafarer is returned to the destination; and
if the seafarer dies before the seafarer is returned to the destination, for the burial or cremation of the seafarer.
For subsection (1)(a), the seafarer must be returned to the repatriation destination—
by air; or
by any other appropriate and expeditious means that is agreed between the seafarer and the employer of the seafarer.
For subsection (1)(b), the seafarer’s relief and maintenance includes—
food and lodging; and
surgical, medical, dental or optical treatment (including the repair or replacement of any appliance) for any condition of the seafarer which requires immediate medical care.
For subsection (1)(b), if the seafarer is entitled to be repatriated because the ship on which the seafarer is employed to work is wrecked, the seafarer’s relief and maintenance also includes—
clothing;
toilet and other personal necessities;
if the seafarer is not entitled to legal aid, or legal aid is insufficient, reasonable costs for defending the seafarer in any criminal proceedings in respect of any act or omission in connection with the shipwreck that is within the scope of the seafarer’s employment; and
sufficient money to meet any minor ancillary expenses necessarily incurred or likely to be so incurred by the seafarer for relief and maintenance.
Subsection (4)(c) does not apply if the employer of the seafarer or the employer’s agent is a party to the criminal proceedings.
An employer who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5.
The employer of a seafarer must not—
require the seafarer to make an advance payment towards the cost of repatriation at the beginning of the seafarer’s employment; or
recover the cost of repatriation from the seafarer’s wages or other entitlements.
Subsection (1)(b) does not apply if the seafarer is in serious default of the seafarer’s obligations under the crew agreement concerned.
An employer who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5.
(Repealed L.N. 76 of 2016)
As soon as practicable after a seafarer has, for the purpose of repatriation, left the ship on which the seafarer is or was employed to work, the employer of the seafarer must inform the Superintendent of the particulars specified in subsection (2).
The particulars are—
the name of the seafarer;
the seafarer’s home address as stated in the list of crew;
the name and address of the seafarer’s next of kin as stated in the list of crew;
the name of the ship;
the date when the seafarer left the ship;
the circumstances under which the seafarer was entitled to be repatriated;
the name and address of the employer; and
if the ship was wrecked—
the date of the shipwreck;
the date when the seafarer was brought ashore;
the place where the seafarer was brought ashore; and
the present whereabouts of the seafarer.
Subsection (1) does not apply if a notice of the seafarer’s discharge has been given to the Superintendent in accordance with section 21 of the Merchant Shipping (Seafarers) (Crew Agreements, Lists of Crew and Discharge of Seafarers) Regulation (Cap. 478 sub. leg. L). (L.N. 76 of 2016)
The master of the ship must make entries, in relation to the repatriated seafarer, recording— (L.N. 76 of 2016)
both in the official log book and in the list of crew— (L.N. 76 of 2016)
the date when the seafarer left the ship; and
the circumstances under which the seafarer was entitled to be repatriated; and
in the official log book, any provision which he has made on the employer’s behalf to ensure that the Superintendent is informed of the particulars referred to in subsection (1).
An employer who fails to comply with an obligation imposed on him under subsection (1) commits an offence and is liable on conviction to a fine at level 2.
The master of a ship who fails to comply with an obligation imposed on him under subsection (3) commits an offence and is liable on conviction to a fine at level 1.
The employer shall ensure that the Superintendent is kept informed of the arrangements he has made (including any changes in those arrangements) pursuant to his obligation to make provision for a seafarer under section 3C. (L.N. 76 of 2016)
An employer who fails to comply with an obligation imposed on him under subsection (1) commits an offence and is liable on conviction to a fine at level 2.
A seafarer who is to be repatriated under this Regulation must be returned— (L.N. 76 of 2016)
in the case of a seafarer who is resident in Hong Kong, to Hong Kong;
in the case of a seafarer who is not resident in Hong Kong, to a place in the country in which he is resident being—
if he joined the ship in that country, the place where he joined the ship; or (L.N. 76 of 2016)
if he did not join the ship in that country, the place in that country at which he was employed to join the ship; or
to any other place which may be agreed between the seafarer and his employer.
Where it appears to the Superintendent that a seafarer’s employer has failed to make or to continue to make any or sufficient provision with respect to any matter for which he is required to make provision for that seafarer under section 3C, the Superintendent shall make that provision.
Where the Superintendent is requested by an employer who is under an obligation under section 3C to make provision for a seafarer’s return, he shall or, where he is himself under an obligation under section 8 to make provision for the return of a seafarer, he may, subject to subsection (2)— (L.N. 76 of 2016)
by means of a conveyance order in writing require the master of a ship (which, where the order is made at the request of the employer, shall be specified by the employer) to convey the seafarer from any place specified in the order to such other place so specified as lies on a reasonable route between the place specified in the order and the repatriation destination; and (L.N. 76 of 2016)
give to the master of that ship such directions as may be necessary for the purpose of that requirement,
and more than one such order may be made in the course of the seafarer’s return.
The master of a ship shall not be required under subsection (1) to convey a seafarer in the ship or to obey any direction given for the purpose of the requirement—
if the ship is a fishing vessel;
if any provision of an enactment would be infringed by reason of that seafarer being conveyed in the ship in addition to other persons carried in the ship;
if his ship would be required to go to any place to which it would not otherwise go in the course of the voyage then being undertaken or about to be undertaken;
if, by reason of compliance with such requirement or direction, his ship would be unreasonably delayed; or
if the master has other reasonable cause for objecting to the requirement or direction, as the case may be.
The master of a ship who fails to comply with a requirement made of him by a conveyance order under subsection (1)(a) or with a direction given to him under subsection (1)(b) for the purpose of that requirement commits an offence and is liable on conviction to a fine at level 2.
The master of a ship shall make entries in the official log book recording the particulars of any requirement made of him under section 9 and of any directions given to him by the Superintendent for the purpose of that requirement.
The master of a ship who fails to comply with an obligation imposed on him under subsection (1) commits an offence and is liable on conviction to a fine at level 1.
The master of a ship in which a seafarer is conveyed in accordance with section 9 shall be entitled to payment for the conveyance at a rate not exceeding $100 per day for every day (including part of a day) on which that seafarer is on board the ship; and payment shall be made to him or to his order by the person specified in subsection (2) upon presentation both of the conveyance order and of an account showing the total amount claimed and how that amount is calculated.
The person by whom payment is to be made to the master in accordance with subsection (1) is the seafarer’s employer or, where the conveyance is required by the Superintendent pursuant to his obligation under section 8, the Government.
If a seafarer is returned to a repatriation destination under section 3C, the employer of the seafarer must, within 28 days after the date of return—
pay the outstanding wages in full to the seafarer; and
deliver to the seafarer and the Superintendent an account of the wages paid.
Subsection (1) does not apply if the seafarer is discharged from the ship on which the seafarer is employed to work and is entitled to receive wages and an account of the wages under sections 84 and 85 of the Ordinance. (L.N. 76 of 2016)
Where the amount shown in the account delivered to a seafarer and the Superintendent pursuant to subsection (1) as being the amount payable is replaced by an increased amount shown in a further account delivered to the seafarer and to the Superintendent, the balance shall be paid to the seafarer by the employer (or the master acting in that behalf) within the time specified in that subsection.
If a seafarer’s entitlement to repatriation ceases under section 3B, the employer of the seafarer must, within 28 days after the date of cessation—
if the employer knows the seafarer’s current address—
pay the outstanding wages in full to the seafarer; and
deliver to the seafarer and the Superintendent an account of the wages paid; or
if the employer does not know the seafarer’s current address, deliver to the seafarer’s last known address and the Superintendent—
an account of the outstanding wages; and
a notice to the effect that the seafarer may contact the employer regarding the payment of wages.
An employer who contravenes subsection (1)(a) or (3)(a)(i) commits an offence and is liable on conviction to a fine at level 6 and to imprisonment for 2 years.
An employer who contravenes subsection (2) commits an offence and is liable on conviction to a fine at level 3. (L.N. 76 of 2016)
An employer who contravenes subsection (1)(b) or (3)(a)(ii) or (b) commits an offence and is liable on conviction to a fine at level 1. (L.N. 76 of 2016)
Where wages cannot be paid to a seafarer in accordance with section 12 and the seafarer is not known to be dead, then, notwithstanding anything contained in sections 84 and 85 of the Ordinance or this Regulation, the wages shall be paid to the person named in the list of crew as the seafarer’s next of kin, and accounts thereof delivered to that person and to the Superintendent as soon as is practicable after the expiration of 4 months from the time for payment specified in that section.
The employer of a seafarer and the Superintendent shall each keep records of all expenses respectively incurred and sums respectively paid by them in the discharge of their respective obligations under this Regulation.
Where, in respect of any expense incurred or sum paid by him in discharge of his obligations under this Regulation, the employer of a seafarer makes a deduction authorized by the Merchant Shipping (Seafarers) (Wages and Accounts) Regulation (Cap. 478 sub. leg. S) from the wages due to a seafarer under a crew agreement, the employer shall render an account of all such expenses and sums to the seafarer and to the Superintendent or, if the wages are payable by virtue of section 13 to the seafarer’s next of kin as named in the list of crew, to that next of kin and to the Superintendent. (L.N. 76 of 2016)
An employer who fails to comply with an obligation imposed on him under this section commits an offence and is liable on conviction to a fine at level 2.
This section applies to any property (including money) left on board a ship by—
a sick or injured seafarer who has been repatriated; or
a seafarer who was to be repatriated, but has died before the repatriation. (L.N. 76 of 2016)
(Repealed L.N. 76 of 2016)
The master of the ship on which the seafarer is or was employed to work shall— (L.N. 76 of 2016)
take charge of that property; and
enter in the official log book—
a list of all the property so taken into his charge;
in the case of the sale under subsection (4)(a) of any part of the property, a description of each article sold and the sum received for it; and
in the case of the destruction or disposal of any part of the property under subsection (4)(b), a description of each article destroyed or disposed of and the name of any person to whom disposal was made.
The master may at any time—
sell, by public auction or otherwise, any part of the property which is of a perishable or deteriorating nature; and the proceeds of sale shall form part of the property; and
destroy or otherwise dispose of any part of the property which, in his opinion, endangers or is likely to endanger the health or safety of any person on board the ship.
Subject to subsection (6)—
the master shall, when directed by the employer of the seafarer, cause the property to be delivered to the employer at an address in the repatriation destination; and (L.N. 76 of 2016)
the employer shall notify the seafarer or, if the seafarer’s wages are payable by virtue of section 13 to his next of kin as named in the list of crew, notify that next of kin, that the property is available for collection, and will be delivered to him, at an address specified by the employer.
If a seafarer or his next of kin notified under subsection (5)(b) so requests, the employer shall deliver the property to an address specified by the seafarer or next of kin, as the case may be, and the expense of such delivery shall be borne by the person to whom the property is delivered.
The employer, when delivering the property to a seafarer or his next of kin in accordance with subsection (5)(b) or (6), shall also deliver to the seafarer or his next of kin, as the case may be, a record of all the property delivered and—
where any property has been sold under subsection (4)(a), a description of each article sold and the sum received for it; and
where any property has been destroyed or disposed of under subsection (4)(b), a description of each such article.
The master of a ship who fails to comply with an obligation imposed on him under—
subsection (3)(a) or (5)(a) commits an offence and is liable on conviction to a fine at level 2; and
subsection (3)(b) commits an offence and is liable on conviction to a fine at level 1.
An employer who fails to comply with an obligation imposed on him under subsection (5)(b), (6) or (7) commits an offence and is liable on conviction to a fine at level 2.
All entries in the official log book required to be made by the master of a ship under section 5(3) or 15(3)(b) shall be signed by the master and by a member of the crew.
A copy of this Regulation must be kept on board a ship.
The master of a ship must, if requested by a seafarer employed to work on board the ship, make a copy of this Regulation available to the seafarer.
If subsection (1) is contravened, the master of the ship concerned and the master’s employer each commits an offence and is liable on conviction—
for the master, to a fine at level 1; and
for the employer, to a fine at level 2.
The master of a ship who contravenes subsection (2) commits an offence and is liable on conviction to a fine at level 1.