FOR 2005-02-18 no 146: Regulations relating to guaranteed remuneration and repatriation of employees aboard ships registered in the Norwegian International Ship Register (NIS).

Laid down by the Resolution in Council of 18 February 2005 under and in pursuance of s. 32 of Act no. 18 of 30 May 1975 relating to the Employment of Seamen. Proposed by the Ministry of Trade and Industry. Cf. Appendix XVIII no. 24 to the EEA Agreement (directive 80/987/EEC and Regulation (EEC) no. 1408/71).

CONTENTS
   Section 1. Application
   Section 2. The ship owner’s duty to provide a guarantee for the payment of due remuneration and repatriation in the event of insolvency
   Section 3. Restricted obligation to meet demands for the payment of remuneration due
   Section 4. Minimum guarantees 
   Section 5. Guarantor requirements
   Section 6. The Government’s obligation if no guarantee exists
   Section 7. Rights triggered by meeting an employee’s claim for remuneration
   Section 8. Creditor’s right to initiate legal proceedings 
   Section 9. Entering guarantees in the Ship Register  
   Section 10. Documentation verifying the necessary guarantees
   Section 11. Commencement

Section 1. Application

       The present Regulations apply to employees who are not covered by Norwegian social security schemes under Norwegian law or mutual agreement, or by the EEA Agreement’s social security provisions, Regulation (EEC) no. 1408/71 article 14b, and who are employed aboard a ship registered in the Norwegian International Ship Register.

Section 2. The ship owner’s duty to provide a guarantee for the payment of due remuneration and repatriation in the event of insolvency

       For each of their ships registered in the Norwegian International Ship Register, ship owners shall provide a guarantee for the payment of remuneration due to employees, as defined in section 1, following the initiation of winding up proceedings against a company or bankruptcy proceedings against a person who is directly or indirectly responsible for remunerating employees who work aboard the ship. Such guarantee shall include:

a)         The employees’ claims for payment of remuneration due in accordance with statute or accord at the insolvency of their employer.

b)         Any other benefit due in respect of work in employment, such as holiday pay, claims for the payment of repatriation expenses pursuant to legislation or accord, claims on the employer for pension payments and any other loss of benefit earned whilst in service aboard the ship.

c)         Any interest accrued, and the cost of collecting claims listed under letters a and b.

Section 3. Restricted obligation to meet demands for the payment of remuneration due

       The duty to pay is restricted to 8 weeks’ remuneration, or remuneration for a number of shorter periods which in sum total 8 weeks. The claim for remuneration must have been earned within the last 18 months of the employment contract or the employment period prior to the cut-off date, cf. ss.1 (1) and 1(2) of the Norwegian Payment Act. In each case, the claim of any individual employee is limited to an amount equal to three times the National Insurance Base Rate on the cut-off date, cf. s. 6-2 of the Norwegian National Insurance Act.

       Claims for remuneration due must be submitted to the Receiver by the deadline set in the liquidation announcement. Claims against the Guarantor must be submitted by the Receiver prior to the distribution of assets from the estate in liquidation.

Section 4. Minimum Guarantees

       The present Regulations’ requirement relating to insurance or guarantee in case of insolvency will be considered to have been fulfilled if a ship has secured a guarantee of at least NOK 500,000. This stipulation may be scaled down as follows, provided agreement is reached between the trade unions and employers’ organisations involved:

a)         total crew from 1 to 5 employees; NOK 250,000

b)         total crew from 6 to 10 employees; NOK 350.000.

       For ships classified as vessel types 5 B and 5 F under the Norwegian Maritime Directorate’s coding system, the guarantee for each ship shall amount to no less than NOK 2 million.

       With respect to repatriation expenses, the Guarantor may limit his liability to NOK 15,000 per crew member within the liability restrictions set out under the first subsection.

       The Guarantor may restrict his total liability for a number of ships, yet never to less than a net total of NOK 10 million. If the Guarantor’s total liability under this section should total less than NOK 10 million, the liability restrictions of this section will be consolidated.

Section 5. Guarantor requirements

       The guarantee defined under s. 2 shall be provided by an insurance company which has obtained a licence to conduct such activities in Norway. The Ministry of Trade and Industry may on application accept that others provide the guarantee, in full or in part.

       The Guarantor must be a corporate body of independent status vis á vis the ship’s owner/ the employer.

       A national social security scheme in the employee’s country of residence may be approved as guarantee under the first subsection above, provided the social benefits concerned meet the requirements of these regulations.

Section 6. The Government’s obligations if no guarantee exists

       If no such surety exists which is mentioned under s. 2, and the guarantee incident has occurred, the Norwegian Government guarantees payment of undisputed claims for the remuneration of employees, to the extent that these would have been covered by a valid guarantee. In such case, the Government’s claim against the debtor in liquidation and his estate will replace that of the employee, while enjoying the same charge and level of priority, pursuant to ss. 51 - 52 of the Maritime Act and s. 9(3) of the Payment Act. This applies even if the conditions for payment under the Wage Guarantee have not been met.

Section 7. Rights triggered by meeting an employee’s claim for remuneration

       Whoever meets an employee’s claim to remuneration or repatriation under these regulations, will have a claim against the debtor in liquidation and his estate which replaces that of the employee, while enjoying the same charge and level of priority, pursuant to ss. 51 - 52 of the Maritime Act and s. 9(3) of the Norwegian Payment Act.

Section 8. Creditor’s right to initiate legal proceedings

       If a claim is disputed, in full or in part, by a debtor in liquidation, the estate in liquidation or the Guarantor, the creditor may be asked to initiate legal proceedings in respect of his claim.

Section 9. Entering guarantees in the Ship Register

       It is a condition of registration that any guarantee provided under to s. 2 be recorded in the Ship Register.

Section 10. Documentation verifying the necessary guarantees

       The Ministry of Trade and Industry, or a person authorised by the Ministry, may request the presentation of documentation to verify that the necessary guarantee has been provided. Such documentation would include the necessary accord between the organisations involved.

Section 11. Commencement

       The present Regulations shall come into force with immediate effect. As of the same date, Regulation no. 1162 of 17 December 1993 relating to statutory guarantee schemes for employees aboard Norwegian ships, shall be set aside, as shall Regulation no. 1253 of 23 December 1993 relating to guaranteed wages and repatriation at the insolvency of employers, and Regulation no. 1254 of 23 December 1993 relating to guaranteed for social security rights for EEA citizens who work within the hotel and restaurant industry aboard tourist ships registered in the Norwegian International Ship Register.