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AGREEMENT AND DEED OF ASSIGNMENT,
EXCLUSIVE MANDATE AND POWER OF ATTORNEY
This is an agreement and deed of assignment, exclusive mandate and power of attorney (the “Agreement”) between:
Name of Seafarer: {nameOf}
Address: {address}
Postal Code: {postal}
City: {city}
Country: {country}
(the “Seafarer”) and:
Stichting Equal Justice Equal Pay, with its office at Notarisappelpad 9, 4125 RD, Hoef en Haag, the Netherlands (“Foundation”).
The Seafarer and the Foundation are hereinafter collectively referred to as the “Parties”.
Background of this Agreement :
A. The Seafarer is someone who, while residing in the Philippines or Indonesia, works, or has worked at least once, as a crew member on a seagoing ship, which:
(i) he or she believes flies or flew the Dutch flag (a “Dutch Vessel”)
(ii) is not a ship used for military or non-commercial purposes, and
(iii) is either directly or indirectly owned or co-owned by a natural or legal person residing or established in the Netherlands (“Shipowner”), or is operated by a natural or legal person, agency or other body, alone or jointly with others, who has assumed the responsibility for operation of the ship from the Shipowner and who, on assuming such responsibilities, has agreed to take over all the attendant duties and responsibilities, such as the manager, agent or bareboat charter established in the Netherlands (“Ship Operator”), which Shipowner or Ship Operator will be identified by the Foundation on the basis of the information to be provided by the Seafarer to the Foundation.
B. The Foundation believes that as of any moment after 1 January 2016, the Seafarer was paid, is being paid and may continue to be paid after the date of this Agreement, less than he or she should have been paid, for performing the same or similar work compared to seafarers on the same or other Dutch Vessels who did or do not reside in the Philippines or Indonesia and that the Seafarer has missed out, and will continue to miss out, on salaries, bonuses, interest, cost compensation and/or other wage elements, and has accordingly suffered or may suffer losses in the future (other than losses, injury or harm arising from accident, illness or death) (“Harm”).
C. The Foundation’s goal is to achieve equal pay for all Seafarers. To achieve this, the Foundation is prepared to commence proceedings and to claim compensation (other than for losses, injury or harm arising from accident, illness or death) for all Seafarers, in particular those who resided in the Philippines and Indonesia when they worked on a Dutch Vessel of a Shipowner or Ship Operator. To this end, the Foundation wishes to acquire and control the following rights of the Seafarer (“Rights”):
1) The right to claim compensation for the Harm, both current and future
2) All accessory and ancillary rights arising out of this claim;
3) All absolute and relative future rights arising out of this claim;
4) The right to bring legal proceedings in relation to the Harm;
5) The right to take any legal action to preserve any right in respect of the Harm and this claim;
6) The right to opt-in or opt-out in any collective action in relation to the Harm
7) The right to settle this claim; and
8) The right to receive settlement payments, interest, costs, and all other forms of compensation in relation to the Harm.
D. The Seafarer wishes the Foundation to enforce his/her Rights by filing one or more complaints, petitions or claims with the appropriate body, organization or court, either on an individual basis, or in a collective or group action on behalf of the Seafarers against one or more Shipowners and Ship Operators and, if the Foundation deems it necessary or desirable, all respective parent companies, legal successors, legal predecessors, affiliated companies, divisions, business units and subsidiaries of such Shipowner or Ship Operator and any entity in which such Shipowner or Ship Operator has a controlling interest or that have a controlling interest in such Shipowner or Ship Operator (collectively, “Shipping Companies”), and, if the claim is or the claims are successful (including if there is a successfully negotiated settlement), will pay the Seafarer any compensation resulting from the proceedings, either by way of judgment, settlement, or unilateral voluntary payment of compensation after deduction of the Foundation’s costs, any financing fee and other fees.
E. The Foundation needs to be able to select the most appropriate litigation route, and may need to alter or amend its strategy or approach depending on the circumstances as they develop. The provisions of this Agreement are such that the Foundation has the required flexibility.
F. The Seafarer expresses that he or she believes that the Foundation is the representative for the group who have suffered Harm and expresses his/her support for the Foundation pursuing any and all claims against the Shipping Companies which it deems necessary for enforcing the Rights.
The Parties therefore agree as follows:
Article 1. Sale, Assignment and Transfer
1.1 By signing this Agreement, the Seafarer sells, assigns and transfers to the Foundation, by way of a public assignment pursuant to Articles 3:84 and 94 Dutch Civil Code (“DCC”), and the Foundation hereby buys, accepts and acquires in full (now, and in advance within the meaning of Article 3: 97 DCC), all of the Seafarer’s Rights under the terms and conditions of this Agreement (“Assignment”).
1.2 The Foundation shall determine the timing of the notification of this Assignment to the Shipping Companies. In view of the Seafarer’s right of withdrawal in the cooling-off period, as set forth in Article 6 of this Agreement, the Foundation shall not make the notification within two (2) weeks of the date of this Agreement.
Article 2. Price of the Assignment and Distribution
2.1 In exchange and as consideration for the Seafarer entering into this Agreement, and subject to Article 5, the Foundation assumes the obligation to pursue the enforcement of the Rights. If the Foundation succeeds in enforcing the Rights and collects proceeds (“Proceeds”), it must pay the Seafarer his or her pro rata share of the Proceeds minus:
a. All reasonable, prorated costs that the Foundation, the Funder, or their lawyers incurred assessing, establishing, or enforcing the Rights, including all judicial costs, legal and expert fees, and all other expenses incurred in pursuing the Rights (“Operational Costs”); and
b. the prorated fee that the Foundation is required to pay to its funder, which is equal to 20% of the Proceeds after deduction of Costs (“Financing Fee”). (The Proceeds minus the Operational Costs and the Financing Fee are the “Net Proceeds”. The Operational Costs and the Financing Fee together cannot be more than the Proceeds).
2.2 The Seafarer acknowledges that the total compensation amount, and his or her share of that amount, depends on the extent to which the Foundation successfully enforces the Rights; and that the Net Proceeds may be zero.
2.3 The Foundation, or any agent appointed by the Foundation to handle the administration and distribution of Net Proceeds, must pay the Seafarer’s pro rata share of any Net Proceeds into a bank account specified by the Seafarer as soon as practically possible after: (i) the Foundation or its agent receives the Proceeds of the successful enforcement of the Rights; and (ii) there is a final/irrevocable decision in the Proceedings (as defined below) or a definitive Settlement (as defined below) is reached. The Foundation or its agent may suspend the distribution of any Net Proceeds until all Proceeds with respect to the Rights of the other seafarer-victims in the same proceedings are received.
Article 3. Exclusive Mandate and Power of Attorney
3.1 For the period from the effective date of this Agreement until such time as the Foundation notifies the Shipping Companies pursuant to Clause 1.2 of the Assignment, the Seafarer grants to the Foundation an exclusive mandate to act in its own name and for the account of the Seafarer to enforce the Rights (“Exclusive Mandate”). As of the effective date of this Agreement, the Seafarer also grants the Foundation such Exclusive Mandate, retrospectively, in the event and to the extent that, at any time, the Assignment is found invalid.
3.2 The Exclusive Mandate shall permit the Foundation to file complaints and initiate legal proceedings, on a collective or individual basis, before any body, organization, court of law, or commence mediation, arbitration, or other ADR proceedings (“Proceedings”); take action to exercise the Rights for the benefit of the Seafarer; and pursue any form of settlement regarding the Rights for the benefit of the Seafarer (“Settlement”). Under the Exclusive Mandate, the Foundation may act as the Seafarer’s agent in any Proceedings and/or Settlement discussions or negotiations.
3.3 The Seafarer grants to the Foundation an irrevocable and exclusive power of attorney, with the power of substitution, (i) to do whatever is necessary on behalf of the Seafarer to repair or complete the Assignment and achieve the result ostensibly intended by this Agreement if it or any part of it is deemed invalid or inoperative and accepts that the Foundation will act as its counterparty and (ii) to sell, assign and transfer, on his or her behalf, in full the Rights of the Seafarer and any Rights arising under employment relationships entered into with Shipping Companies after the date of this Agreement, under the same conditions and with the same scope as those included in this Agreement and the right to take all actions in order to have the Rights exercised and (iii) to retransfer the Rights to the Seafarer without consideration, if this Agreement is terminated (“Power of Attorney”).
3.4 The Foundation is entitled to act as counterparty of the Seafarer within the meaning of Article 7:416 DCC and as mandate holder of the other principals. Based on the Foundation’s statutory objectives, the Foundation has a direct or indirect interest in acquiring and controlling the Rights within the meaning of Article 7:418 part 1 DCC. The Exclusive Mandate will not end as a result of the bankruptcy of the Seafarer.
3.5 The Power of Attorney includes the right to substitute and permits the Foundation to act as counterparty of the Seafarer.
3.6 The conditions applicable to the Exclusive Mandate and Power of Attorney are the same as the conditions (including but not limited to Articles 1 and 2 of this Agreement) applicable to the Assignment, such that they correspond with the Assignment and the applicable provisions of this Agreement as closely as possible. This means that the Foundation or its agent is entitled to withhold all Operational Costs and the Financing Fee from the distribution of the Proceeds.
Article 4. Obligations of the Seafarer
4.1 The Seafarer commits to:
a. promptly comply with any reasonable request from the Foundation for information and documentation;
b. promptly sign any relevant documentation and take all necessary steps to permit the Foundation to establish, acquire, control or enforce the Rights;
c. not communicate directly or indirectly with the entities against which the Rights are being pursued about the Rights, the Proceedings 0r the Settlement without the Foundation’s written permission;
d. immediately notify the Foundation of any communication received from the entities against which the Rights are being pursued regarding the Rights, the Proceedings or the Settlement;
e. not take any actions, including reaching any independent settlement, that may negatively affect the value of or the ability of the Foundation to enforce the Rights; and
f. not sell, assign, transfer, set off or give the Rights to any third party or join any other collective action seeking to enforce the Rights, from the effective date of this Agreement without the Foundation’s prior written permission;
g. not mortgage, pledge, or otherwise encumber or accept the seizure of the Rights or cash or assets that may form part of his/her share of the Proceeds from the effective date of this Agreement without the Foundation’s prior written permission;
h. not give a mandate or proxy in respect of the Rights to any third person or party from the effective date of this Agreement without the Foundation’s prior written permission.
4.2 In order to meet the above obligations, the Seafarer may seek the advice and assistance from the Foundation.
Article 5. Retransfer and Termination
5.1 The Foundation may decide not to enforce the Rights (or to suspend any Proceedings already pending) and return and transfer back the Rights to the Seafarer or, as the case may be, to terminate its Exclusive Mandate and/or Power of Attorney, only if (i) according to the lawyers or experts involved, the legal and factual positions in any Proceedings are no longer reasonably defensible, or proceeding with the Proceedings would be pointless or frivolous; the Rights appear unfounded; the Harm is not, or unlikely to be, recoverable, or there is insufficient evidence that one or more Seafarers suffered Harm; or (ii) the Foundation determines that qualifying Seafarers’ collective recoverable Harm is insufficient to render the Proceedings economically viable or financially justified. In such a case, the Foundation must inform the Seafarer within a reasonable period of time and shall promptly return and transfer back the Rights to the Seafarer, or, as the case may be, terminate the Exclusive Mandate and/or Power of Attorney.
5.2 Upon completion of a retransfer or termination, as set forth in Clause 5.1, or in the event the Foundation dissolves and ceases to exist, all obligations of the Foundation arising from this Agreement shall terminate immediately.
Article 6. Cooling-Off Period/Right of Withdrawal
6.1 The Seafarer has the right to withdraw from this Agreement, without penalty and without having to give a reason, by giving notice in writing to the Foundation within a cooling-off period of 14 days starting on the day on which this Agreement was signed. In the event the Seafarer exercises the right of withdrawal in the cooling-off period, the Foundation shall return and transfer back to the Seafarer any Rights previously transferred and/or, as the case may be, terminate the Exclusive Mandate and/or Power of Attorney.
Article 7. Limitation of Liability
7.1 The Seafarer acknowledges that the Foundation’s obligations are best effort obligations. The Foundation’s liability for breach of any of the Agreement’s provisions, or negligence or breach of any other obligation or duty to the other Party, is limited to intentionally caused loss or loss caused by gross negligence.
Article 8. Confidentiality
8.1 The Parties agree to maintain the confidentiality of all legally protected information, including the content and existence of this Agreement, and to maintain confidentiality regarding any Settlement negotiations and Proceedings concerning the Rights and to not disclose any of this information to any third parties, unless:
a. required by law;
b. regarding disclosure by the Seafarer, disclosure is made with the prior written consent of the Foundation (this consent may not be unreasonably withheld); or
c. regarding disclosure by the Foundation, disclosure is limited to its stakeholders, those entities against which the Rights are being pursued, the Parties’ representatives or advisors (including experts), the court, tribunal, mediator, or other persons to the extent required for the performance of this Agreement and in furtherance of the Proceedings.
8.2 The obligations in Article 8 continue for a period of two years after termination.
Article 9. Applicable Law; Arbitration
9.1 This Agreement is exclusively subject to Dutch law and all disputes arising under this Agreement are exclusively governed by the Arbitration Regulations of the Netherlands Arbitration Institute (NAI). The location of any arbitration is Amsterdam, the Netherlands.
9.2 If for whatever reasons the arbitration agreement included in Clause 9.1 is or becomes invalid, in whole or in part, then the competent court in Amsterdam will have exclusive jurisdiction.
Article 10. Severability
10.1 If one or more provisions of this Agreement are declared void or unenforceable, this will not affect the other provisions. The other provisions remain in effect and are enforceable to the fullest extent permitted under applicable law.
10.2 In the event of the above, the Parties must use their best endeavours to conclude and sign any additional deed, agreement, or any other document necessary to ensure that the Parties are able to achieve the objectives of this Agreement, be it under Dutch law or the laws of any other country.
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