Didovsky Igor & 11 others v International Bulk Carrier Spa & 2 others [2015] eKLR

Key Facts

Issues

• The court assessed whether the Claimants could pursue legal remedies against the 1st Respondent. The 1st Respondent claimed it was not a party to the employment contracts. The court concluded the Claimants had no cause of action against the 1st Respondent, as their contracts were with the Charterers, and the 1st Respondent had no direct employment relationship.
• The court determined if the Claimants were entitled to general, punitive, and aggravated damages for their suffering. It ruled that the 2nd and 3rd Respondents breached the Crew Agreements by failing to provide basic amenities and abandoning the Ship. Each Claimant was awarded US$5,000 in damages, with costs and interest, to be paid from the MV BLIDA sale proceeds.
• The court determined whether an employment contract existed between the Claimants and the 1st Respondent (International Bulk Carrier SPA). The 1st Respondent argued there was no contract, as the Crew Agreement was between the Claimants and Sekur Holdings (3rd Respondent). The court found the employment relationship was with the Charterers (2nd and 3rd Respondents), not the 1st Respondent.
• The court evaluated if the Claimants faced slave-like conditions onboard MV BLIDA. Evidence showed the Ship lacked food, water, and electricity, with the Crew forced to endure harsh conditions. The court found the 2nd and 3rd Respondents' actions constituted forced labour under Kenyan and international law, as the Crew could not leave without being discharged and had not been paid wages.

Holdings

• The award was ordered to be satisfied in full from the funds held by the Admiralty Marshal following the sale of MV BLIDA.
• The 2nd and 3rd respondents acted in breach of the Crew Agreements with the claimants.
• The claimants were awarded the costs of the legal proceedings.
• Interest at 14% was awarded on the principal amount and costs from the date of the award until full payment.
• The 1st respondent's counterclaim for loss of the vessel was rejected by the court.
• The court declared that the claimants were subjected to forced labour by the 2nd and 3rd respondents in the abandoned Ship known as MV BLIDA.
• Each claimant was awarded general damages for breach of agreements at US$5000 per claimant.
• The balance of funds held by the Admiralty Marshal was to be released to the 1st respondent after satisfaction of the award.

Remedies

• Each claimant was awarded general damages of US$5,000 for breach of crew agreements and implied terms.
• The remaining funds from the MV BLIDA sale were to be released to the 1st respondent after the award was satisfied.
• The award was to be satisfied in full from the proceeds of the MV BLIDA's sale held by the Admiralty Marshal.
• The court found that the 2nd and 3rd respondents acted in breach of the crew agreements with the claimants.
• The court ordered that the costs of the claim be awarded to the claimants.
• The court declared that the claimants were subjected to forced labour by the 2nd and 3rd respondents in the abandoned MV BLIDA.
• The 1st respondent's counterclaim was dismissed as it lacked merit and evidence.
• Interest at 14% per annum was granted on the principal amount and costs from the award date until full payment.

Monetary Damages

Legal Principles

• The court reviewed the High Court's admiralty jurisdiction transfer to the Industrial Court, affirming the latter's exclusive authority over employment disputes under Article 162(2)(a) of the Constitution and Section 87 of the Employment Act 2007.
• The court applied a purposive interpretation of the Merchant Shipping Act 2009 and Employment Act 2007 to determine employer-employee relationships and obligations, emphasizing the intent behind the laws to protect seafarers' rights.
• The court prioritized the substance of the Bareboat Charter agreement over its formal terms, holding that the disponent owners (2nd and 3rd respondents) retained operational control and employer responsibilities despite legal ownership by the 1st respondent.

Precedent Name

• Daniel Mugendi v. Kenyatta University and 2 Others
• Leonard Sande v. Owners of MV ALPHA MANYARA
• United States International University v. Attorney General and Others

Cited Statute

• Supreme Court Act 1981 (UK)
• International Labour Organization Maritime Labour Convention 2006 (MLC 2006)
• Employment Act 2007
• International Labour Organization Convention 29 Concerning Forced or Compulsory Labour 1930
• Merchant Shipping Act 2009
• Constitution of Kenya
• Occupational Safety and Health Act 2007
• International Labour Organization Convention 105 on Abolition of Forced Labour 1957
• Judicature Act Cap 8, Laws of Kenya

Judge Name

Passage Text

• It is declared the Claimants were subjected to forced labour by the 2nd and 3rd Respondents in the abandoned Ship known as MV BLIDA;
• The Award shall be satisfied in full from the amount held by the Admiralty Marshal on account of the sale of MV BLIDA in the High Court Admiralty Claims Number 7 and 8 of 2012 [Consolidated]; and
• The Court is satisfied the Claimants have established their joint Claim against the 2nd and 3rd Respondents. The Claim against the 1st Respondent as a registered Owner of MV BLIDA is misplaced. They are entitled to general damages for breach of their Crew Agreements and breach of the terms and conditions implied by the law, in the Crew Agreements. The Court grants each Claimant damages assessed at US$5,000, with costs, and interest at 14% from the date of the delivery of this Award till payment in full.