The yacht’s flag does not decide the law that applies to the crew. A seafarer who lives in France and serves under the flag of a third State falls under the seafarers’ social security scheme, and French labour law prevails as soon as the connection with France is the strongest. Dismissal of the captain is decided by the judicial court, after conciliation.
The captain lives in Antibes, the yacht flies the Maltese flag, the owning company is registered in the Isle of Man, the contract was signed with a Monaco management company, and the owner, who lives in Geneva, decided one Sunday evening to part with him by text message. On Monday the captain consults a lawyer. The first question is not whether the dismissal is justified. It is which law applies, before which court, and who, in this chain of companies, is the employer.
These questions arise at every termination, every accident and every inspection, and they are rarely settled the way the contracts intended. French law has precise rules for seafarers, case law that is not impressed by the flag, and a social security regime that catches up with seafarers residing in France. Here is what the owner, the management company and the crew need to know before signing, and what they can still do afterwards.
The seafarer’s employment agreement and what it must contain
Anyone who carries out a professional activity on board a ship, in whatever capacity, is a seafarer (gens de mer) within the meaning of article L. 5511-1 of the Transport Code, and those whose activity is directly linked to the operation of the ship are mariners (marins). A captain, a mate, a chief engineer, a chef or a stewardess serving on a commercially operated yacht are merchant mariners. Article L. 5541-1 applies the Labour Code to them, subject to the adaptations specific to work at sea.
The contract binding them to the shipowner or any other employer is a seafarer’s employment agreement (contrat d’engagement maritime) under article L. 5542-1, and it may be concluded for an indefinite period, for a fixed term or for a voyage. Article L. 5542-3 requires writing, with particulars that the Anglo-Saxon contracts used in the market often omit: wages and extras, leave entitlement or its method of calculation, health and social security benefits guaranteed by the shipowner, the seafarer’s right to repatriation, reference to the applicable collective agreements and, for a fixed-term contract, its end date. Article L. 5542-5 requires the seafarer to be given enough time to read the contract and seek advice, and to receive a copy before embarking.
Several rules of the Transport Code run against yachting habits. Contractual notice may not be less than seven days and must be the same for both parties, except in an emergency or on humanitarian grounds invoked by the seafarer (article L. 5542-4). A fixed-term contract renewed before the accrued leave has been taken becomes a contract of indefinite duration (article L. 5542-12), as it does where successive contracts have bound the seafarer to the employer for at least eighteen months, nine of them actually on board, over a period of twenty-seven months (article L. 5542-13). The probationary period, in which only periods actually on board count, may not exceed four months for an officer, eight if renewed (article L. 5542-15). Food is due free of charge throughout the contract (article L. 5542-18), a seafarer injured or ill in the service of the ship is cared for at the employer’s expense (article L. 5542-21), and repatriation costs are borne by the employer, with no advance payment required from the seafarer (article L. 5542-32).
Seasonal crews, taken on each season on a three-month contract renewed every year, and captains paid by a management company without a written contract, are the two situations that produce most litigation. In the first, recharacterisation as a contract of indefinite duration is frequent. In the second, the lack of writing is penalised in itself, and deprives the employer of any evidence of the terms it thought it had negotiated.
The flag does not decide the governing law
The contract of a captain engaged on a Maltese yacht by a Monaco company almost always contains a choice of law clause, Maltese or English. That clause is not void, but it has much less effect than people think.
Article 8 of the Rome I Regulation of 17 June 2008 provides that the choice of law may not deprive the employee of the protection of the mandatory provisions of the law that would have applied absent a choice, that is the law of the country in which, or from which, he habitually carries out his work. The Court of Justice held in Koelzsch of 15 March 2011 (case C-29/10) that this criterion must be interpreted broadly, looking for the place from which the worker organises his activities and to which he returns after his assignments. In Voogsgeerd of 15 December 2011 (case C-384/10) it specified, in relation to a seafarer, that the place of engagement does not prevail and that the flag is not the connecting factor.
For a yacht based in Antibes or Golfe-Juan, which winters at the La Ciotat yard and cruises in summer between the Riviera, Corsica and Sardinia, the place from which the crew works is France, and the mandatory provisions of French maritime labour law apply, whatever law is chosen. The Aix-en-Provence court of appeal so held on 10 December 2021 (no. 20/11511) in respect of the French captain of a Maltese-flagged yacht, owned by an Isle of Man company and managed from Switzerland, moored at Port Gallice: absent a clear choice of law, the contract was governed by French law, the country where the work was habitually performed, and the claims relating to the dismissal fell under French law.
Jurisdiction follows the same logic. Article 21 of the Brussels I bis Regulation allows the employee to sue the employer before the court of the place where he habitually works, including where the employer is not domiciled in the Union, and article 23 makes jurisdiction clauses concluded before the dispute unenforceable against the employee. A Swiss employer falls under the Lugano Convention, which contains the same rules. The Antibes captain therefore sues in France, and the clause designating the courts of Valletta does not prevent him from doing so.
Who pays social security, and to whom
This is the question that costs ill-advised owners the most, because it is settled through retroactive contributions.
Under the French flag, the answer is simple: seafarers serving in commercial yachting are affiliated to the seafarers’ scheme managed by the Établissement national des invalides de la marine (ENIM), under article L. 5551-1, I, 1° of the Transport Code.
Under the flag of another Member State, Regulation (EC) no. 883/2004 in principle designates, in article 11(4), the legislation of the flag State, except where the seafarer resides in the State where the employer has its registered office, in which case the law of that State applies. A captain residing in France on a Maltese yacht employed by a Maltese company falls under Maltese social security; if employed by a French company, he falls under French social security. The Aix-en-Provence court of appeal, in the decision cited above, thus rejected affiliation to the ENIM for the captain of the Maltese yacht, while applying French labour law on the merits: the law of the contract and the social security law are not the same thing.
Under the flag of a third State, such as the Cayman Islands, the Marshall Islands or Panama, article L. 5551-1, I, 2° affiliates to the seafarers’ scheme seafarers residing in France on a stable and regular basis, unless they fall under a foreign legislation by virtue of an international agreement or enjoy social protection at least equivalent to that of the general scheme. That last exception, introduced by article 26 of Act no. 2017-1836 of 30 December 2017 after Decree no. 2017-307 of 9 March 2017 had driven many yachts to Italy, requires genuine coverage of sickness, accident, invalidity, old age and family risks, not mere private health insurance. An employer unable to show it is liable for contributions from day one.
In addition, for any foreign ship providing a service mainly in French waters, the regime of articles L. 5561-1 et seq. of the Transport Code requires a written contract, the French minimum wage and working hours, and a social protection scheme of an EU or EEA State that must cover health, maternity, unemployment and old age (article L. 5563-1). Failure to provide it is punishable by a fine of 3,750 euros per seafarer (article L. 5566-2).
Dismissing the captain: the rules that cannot be negotiated
As regards termination of the contract, the captain is a seafarer like any other, with a few specific rules. The Labour Code applies to dismissal for personal and economic reasons, with the adaptations of a Conseil d’État decree (article L. 5542-42): a preliminary meeting, a letter stating the grounds, genuine and serious cause, a severance payment and, where the dismissal is unjustified, the compensation scale of article L. 1235-3 of the Labour Code.
Notice is mandatory. Except for serious misconduct, the seafarer is entitled to one month’s notice if he has six months of actual and continuous service on board and between one and two years’ seniority, and to two months beyond two years’ seniority (article L. 5542-43). Its starting point is set so that the seafarer has ashore, in the port nearest his residence, a paid period at least equal to a quarter of the notice, without counting his leave (article L. 5542-44). Termination during the probationary period decided by the employer only takes effect on arrival at the first port of call, with the employer organising repatriation (article L. 5542-16). Repatriation is at the employer’s expense, except for serious misconduct, and even then the employer must advance the cost (articles L. 5542-32 and L. 5542-33).
Two features are worth knowing for owners. A captain engaged for a voyage must complete it, on pain of damages (article L. 5542-47), which prevents dismissing a voyage captain mid-passage without serious cause, but also prevents the captain from abandoning the vessel. And serious misconduct, in this profession, is judged in the light of safety duties: drinking while under way, concealing damage, endangering passengers or crew are serious misconduct; disagreement over an itinerary, an inappropriate remark to the owner or a refusal to sail in bad weather are not, the last being on the contrary the exercise of the authority that article L. 5531-1 confers on the master.
Dismissal by text message on a Saturday, with no meeting and no letter, which is more common in this world than one might think, is irregular in form and unjustified in substance. For a 40-metre yacht captain paid 9,000 euros a month with five years’ seniority, it costs the notice, the severance payment, compensation for dismissal without genuine and serious cause within the statutory scale, leave pay and repatriation.
Procedure: the judicial court, after mandatory conciliation
Disputes arising from the formation, performance or termination of the seafarer’s employment agreement are brought before the ordinary courts, and the proceedings must be preceded by an attempt at conciliation before the competent State authority (article L. 5542-48 of the Transport Code). The court is the judicial court, not the employment tribunal (conseil de prud’hommes), and conciliation takes place before the departmental director of territories and the sea, under Decree no. 2015-219 of 27 February 2015.
This conciliation is not a formality that can be made good later. The Cour de cassation held on 2 October 2024 (Cass. soc., no. 22-10.649, published) that failure to refer the matter first to the competent authority is a bar to proceedings that cannot be cured in the course of the proceedings, even by the defendant employer. A seafarer who sues directly loses his case without the merits being examined. Conversely, the acknowledgement of receipt of the request for conciliation interrupts limitation and time limits, and conciliation may end in an agreement providing for a lump-sum indemnity under the scale of article L. 1235-1 of the Labour Code.
The time limits are those of the Labour Code: twelve months to challenge the termination, two years for claims relating to performance of the contract (article L. 1471-1), three years for wages (article L. 3245-1). A foreign captain who has left France often thinks he has time; he does not.
What to put in writing before embarking
Most difficulties can be prevented at recruitment, provided one knows that the documents used in the market are not designed for French law.
The contract must identify the employer unambiguously, and a management company that signs on behalf of an owner it does not name risks being treated as the employer, or as co-employer with the owner who gives the orders. It must contain the particulars of article L. 5542-3, specify leave and how it is taken, organise repatriation, and not purport to remove the seafarer from mandatory French rules by a choice of law clause that cannot do so. Social protection must be chosen according to the flag, the seafarer’s residence and the employer’s seat, before embarkation, with the documents that will show, in an inspection, coverage at least equivalent. Finally, for a foreign yacht whose activity takes place mainly in France, the declaration of activity under article R. 5561-2 must be sent to the departmental directorate of territories and the sea seventy-two hours before the activity begins.
What the firm does
We draft and review crew employment agreements, management agreements and ship’s documents, taking into account the flag, the seafarers’ residence and the cruising programme, and we determine the applicable social security regime before the URSSAF or the ENIM does it for you. In litigation, we assist owners, management companies and captains before the departmental directorate of territories and the sea and then before the judicial court, and we argue governing law and jurisdiction, which are often the real issues in the file.
Outside yachting, the employment agreement, wages, termination and accidents of seafarers on merchant ships are covered on the page seafarer employment disputes: contract, wages, dismissal, accidents and shipowner liability.
For a complete picture, our practical guide Operating a yacht in France: charter, crew, berth, accidents, what rules and what risks? brings together the ten building blocks of a lawful operation, from commercial status to crew contracts, berth and insurance; it can be downloaded free of charge. To have your own situation reviewed, contact the firm.
Frequently asked questions
Is a yacht captain a seafarer under French law?
Yes. Article L. 5511-1 of the Transport Code defines mariners as seafarers, employed or not, whose activity is directly linked to the operation of the ship, and the captain is one of them. His contract is a seafarer’s employment agreement (article L. 5542-1), to which the Labour Code applies with the adaptations specific to work at sea (article L. 5541-1).
Must the crew contract be in writing?
Yes. Article L. 5542-3 of the Transport Code requires a written contract containing, in addition to the particulars of the Labour Code, wages and extras, leave, the health and social security benefits guaranteed, the right to repatriation, the applicable collective agreements and, where relevant, the end date of the contract. The seafarer must receive a copy before embarking (article L. 5542-5).
Does the Maltese or English law chosen in the contract apply to a captain working from Antibes?
Not in its less protective provisions. Article 8 of the Rome I Regulation preserves for the employee the mandatory rules of the law of the country from which he habitually works, and the Court of Justice has held that the flag is not the connecting factor (CJEU, 15 December 2011, Voogsgeerd, case C-384/10). The Aix-en-Provence court of appeal applied French law to the captain of a Maltese yacht based at Port Gallice (10 December 2021, no. 20/11511).
Must a seafarer residing in France on a Cayman Islands-flagged yacht be affiliated to the ENIM?
In principle yes, under article L. 5551-1, I, 2° of the Transport Code, unless he falls under a foreign legislation by virtue of an international agreement or enjoys social protection at least equivalent to that of the general scheme, covering sickness, accident, invalidity, old age and family. Private health insurance alone is not enough.
What notice applies to the dismissal of a captain?
One month where he has six months of actual and continuous service on board and one to two years’ seniority, two months beyond two years’ seniority, except for serious misconduct (article L. 5542-43 of the Transport Code, mandatory). The starting point is set so that the seafarer has ashore a paid period at least equal to a quarter of the notice (article L. 5542-44).
Who pays for the repatriation of a dismissed captain?
The employer, without being able to require any advance from the seafarer (article L. 5542-32 of the Transport Code). In case of discharge for serious misconduct, the costs are borne by the seafarer, but the employer must advance them (article L. 5542-33).
Before which court can the captain challenge his dismissal?
Before the judicial court, after a mandatory attempt at conciliation before the departmental director of territories and the sea (article L. 5542-48 of the Transport Code and Decree no. 2015-219 of 27 February 2015). The Cour de cassation holds that failure to attempt conciliation is a bar to proceedings that cannot be cured during the proceedings (Cass. soc., 2 October 2024, no. 22-10.649).
Can an employer established outside the Union be sued in France?
Yes. Article 21(2) of the Brussels I bis Regulation allows an employee to sue an employer not domiciled in the Union before the court of the place where he habitually works, and article 23 makes jurisdiction clauses concluded before the dispute unenforceable. The Lugano Convention gives the same result for a Swiss employer.
Hervé Guyader, avocat at the Paris Bar, doctor of law.
For a recruitment or a termination in progress, the firm can be reached through its contact form.
On the same subject, the status of the vessel: illegal charter and its consequences; accidents: accidents on board and inexcusable fault; the flag: the French International Register.