132Wages of seaman left on shore sick or injured

#### 132 Wages of seaman left on shore sick or injured (1) Where a seaman belonging to a ship is left on shore at his or her proper return port by reason of illness, hurt or injury, or the need for essential dental care, the seaman is, subject to this section and section 132B, entitled to receive wages, at the rate fixed by the seaman’s agreement, in respect of each day during the period commencing on the day on which the seaman was left on shore and ending: (a) on the day of his or her recovery; or (b) at the expiration of a period of 3 months after the day on which he or she was left on shore; whichever first occurs. (2) Where a seaman belonging to a ship is left on shore at a port other than his or her proper return port by reason of illness, hurt or injury, or the need for essential dental care, the seaman is, subject to this section and section 132B, entitled to receive wages, at the rate fixed by the seaman’s agreement, in respect of each day during the period commencing on the day on which the seaman was left on shore and ending: (a) in a case in which the seaman arrives at that port before his or her recovery: (i) on the day of his or her recovery; or (ii) at the expiration of a period of 3 months after the date of that arrival; whichever first occurs; and (b) in a case in which the seaman does not arrive at that port before his or her recovery: (i) when the seaman arrives at that port; (ii) when the seaman rejoins the ship; or (iii) when the seaman engages in other employment; whichever first occurs. (3) If, after the recovery of a seaman entitled to receive wages under subsection (2) and before the seaman arrives at that port: (a) he or she refuses or fails, without the approval of a proper authority to accept an offer of employment on a ship which is proceeding to that port, being employment under the terms of which: (i) he or she would have been paid wages at a rate not less than the rate fixed by the agreement under which he or she served on the ship from which he or she was left on shore; and (ii) he or she would have had the right to be discharged on arrival at that port; or (b) the seaman refuses or fails, without reasonable excuse, to rejoin the ship from which he or she was left on shore or to accept conveyance back to that port by or at the cost of the owner of that ship; the seaman is not entitled to receive wages in respect of any period after that refusal or failure. (4) A seaman who, before his or her recovery, is fit to travel is not entitled to wages under subsection (2) in respect of a day on which the seaman’s conveyance to the seaman’s proper return port by or at the cost of the owner of the ship from which he or she was left on shore is delayed by an act, default or neglect on the part of the seaman. (4A) Where a seaman becomes entitled to receive wages under this section but dies before he or she ceases to be so entitled, the period in respect of which the seaman is entitled so to receive wages is the period commencing on the day on which he or she was left on shore and ending on the day of his or her death. (5) If: (a) a seaman who is left on shore from a ship is not paid wages to which the seaman is entitled under subsection (1) or (2); or (b) a seaman who is left on shore at a port other than that port, being a seaman who is entitled to be paid wages under subsection (2), is brought or taken back to that port at the direction of the owner or agent of the ship at a time before his or her recovery when the seaman is not fit to travel; the owner and agent of the ship are each guilty of an offence punishable on conviction by a fine not exceeding $2,000. (5A) An offence under subsection (5) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. (6) A seaman is entitled to wages under this section by reason of an illness, hurt or injury, or a need for essential dental care, only if the illness, hurt or injury, or need for essential dental care,: (a) is not due to a wilful act or default, or to misbehaviour, on the part of the seaman; (b) is such as to incapacitate the seaman wholly from the performance of his or her duty; and (d) was not knowingly concealed by the seaman from the person who employed or engaged the seaman at the time the seaman was employed or engaged. (6A) A seaman is not entitled to wages under this section by reason of an illness, hurt or injury, or a need for essential dental care,, occurring after the day on which this subsection commences, if the seaman is entitled to compensation under Division 3 of Part 2 of the Seafarers Rehabilitation and Compensation Act 1992 in respect of that illness, hurt or injury, or need for essential dental care. (6B) A seaman can be taken, for the purposes of subsection (6A), to be entitled to compensation under Division 3 of Part 2 of the Seafarers Rehabilitation and Compensation Act 1992 even though the seaman: (a) has failed to give written notice of the illness, hurt or injury, or need for essential dental care, under section 62 of that Act; or (b) has failed to make a claim for compensation under section 63 of that Act. (6C) If: (a) a seaman is left on shore by reason of illness, hurt or injury, or a need for essential dental care; and (b) the owner: (i) considers the seaman is entitled to compensation under the Seafarers Rehabilitation and Compensation Act 1992; and (ii) because of the operation of subsection (6A), intends not to pay wages in respect of any period during which the seaman is left on shore; the owner must advise the seaman, by notice in writing given to the seaman, of that intention. (6D) A notice given under subsection (6C) is not to be taken as a determination of liability under section 73 of the Seafarers Rehabilitation and Compensation Act 1992. (7) For the purposes of paragraph (6)(a), where a seaman suffers from a venereal disease, that disease shall not be deemed to be due to a wilful act or default, or to misbehaviour, on the part of the seaman. (8) In this section: > agreement, in relation to the master of a ship, means the agreement made by the master to serve on the ship. > recovery, in relation to a seaman, means the recovery of the seaman as certified by a Medical Inspector of Seamen or any other duly qualified medical practitioner. > seaman includes master.