Special cases

• Temporary employment as owner’s inspector
• Insurance under a foreign flag

Temporary employment of seafarers as owner’s inspectors

The employment of seafarers as owner’s inspectors in shipyards is, with regard to statutory social security, regarded as an employment ashore. In order to avoid a gap in the qualifying period for the bridging allowance of the social insurance for seafarers, such employments ashore may, under the following conditions, be regarded as sea service:

1. The employment ashore must be temporary only. Temporary means that it is expected to last not more than 6 months. If it evolves at a later date that its duration will exceed 6 months, the sea service will be regarded as ending at that date. The period prior to that date will still be regarded as sea service.
2. The period of the temporary employment ashore must be consecutive to the service at sea.
3. After the temporary employment ashore the seafarer returns to permanent sea service.

If all three conditions are met, the employment is regarded as sea service, resulting in wages still being accounted for as seagoing staff. Contributions to the social insurance for seafarers during the employment ashore are calculated in accordance with section „G“ of the contribution tables by the BG Verkehr. In the calculation of the average wages during the employment ashore the catering rate is neglected. Entitlement to leave from the temporary employment ashore is determined in accordance with the consideration of this employment as sea service or service ashore.

Insurance of German seafarers on ships flying a foreign flag

The normal cases are easy:

• German flag = German social security law
• Foreign flag = foreign social security law.

However, there are three exceptions: the insurance by power of an area of the law (Ausstrahlungsversicherung), mandatory insurance on application (Antragsversicherung) and mandatory insurance acc. to Art. 11 Para. 3 Letter e) of Regulation (EC) No 883/2004.

The insurance by power of an area of the law (Ausstrahlungsversicherung; also called Entsendung) has the following conditions:

• German or foreign seafarer with place of residence or habitual abode in Germany,
• employer established in Germany,
• fixed-term employment relationship on a foreign-flagged ship (for example during a temporary change to a foreign flag in accordance with § 7 of the German flag act (in German only)),
• no indication that the seafarer will not return to Germany after the end of the term of employment.

If all of these conditions are met, the seafarer is insured in all branches of the German social security. Specifics apply to the postings on ships under EU flag; in this case, EU law is prior.

In practice, insurance on application (Antragsversicherung) hardly ever applies and has the following conditions:

• German shipowner established in Germany,
• German seafarer,
• work onboard a ship under foreign flag, which is either registered in the German shipping register or in a foreign register + the shipowner holds a majority of the beneficial ownership of the ship.

In these cases, the shipowner has to apply for an inclusion of his German seafarers in the German social security. The shipowner can choose the extent of this insurance:

• in all social security branches or
• only in health, nursing care, pension and unemployment insurance as well as the social insurance for seafarers (i.e. without accident insurance).

An obligation of insurance acc. to Art. 11 Para. 3 Letter e) of Regulation (EC) No 883/2004 has to be verified if the conditions for an insurance by power of an area of the law (Ausstrahlungsversicherung) are not met, for example, because the employment relationship is with a foreign employer in another EU/EEA member state or Switzerland and work is performed on a ship flying a foreign flag of a third country.

According to a judgement of the European Court of Justice of 08.05.2019 (C-631/17), for a person  

• who is a national of an EU/EEA Member State or Switzerland,
• who is employed as seafarer on-board a ship flying the flag of a third state and
• whose employer's location is in a different member state as the domicile member state of the seafarer

the social security rights of the domicile member state of the seafarer apply (Art. 11 Para. 3 Letter e) of Regulation (EC) No 883/2004).

If a seafarer starts to work for an employer with the location in a member state on a ship flying the flag of a third state and keeps the permanent residence in the original member state, acc. to the judgement of the European Court of Justice, the national law of the domicile member state of the seafarer applies.

In this case, for seafarers with their residence in Germany, German social security law applies.

During the verification of the residence or habitual residence, the actual circumstances are decisive. In cases of any doubt, the centre of the person's life (personal, family-related and economic ties in the country) counts.

Foreign employers with employees falling under German social security obligations have to employ an authorized person who is obliged to maintain and store wage doucmentation in the German language for company audits.

The “Knappschaft” published a leaflet about insurance by power of an area of the law, insurance on application and mandatory insurance.

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