The Maritime Labour Convention 2006 ( MLC 2006)

Полным ходом идет подготовка к вступлению в силу 20.08.2013 Конвенции о труде в морском судоходстве (MLC 2006). Апрельский выпуск информационного бюллетеня компании PL Ferrari представляет точку зрения клубов P&I на одно из ключевых положений MLC, регулирующее отношения по поводу репатриации моряков.

With just five months remaining to the introduction of The Maritime Labour Convention

2006 ( MLC 2006 ) on 20th August 2013 the purpose of this Newsletter is to provide:

– an introduction to the actions so far taken by the International Group of P&I

Clubs and the Fixed Premium P&I Market with specific regard to the Guideline B

2.5 of Regulation 2.5 of the MLC 2006 ‘requirements for repatriating seafarers’;

– an overview of the MLC 2006 scope , requirements and operation.

Significant information has already been circulated by P&I providers and the industry

press and our introductory Newsletter is aimed at condensing the fundamentals into a

single document which will be then be complemented and updated with further news

bulletins from a P&I perspective as time progresses up to the 20th August 2013.

The International Group of P&I Clubs current position

 The P&I Policy Year 2013/14 has seen all Clubs of the International Group issue

circular notices of Rule changes which have been adopted.

 These are intended to address and augment the scope of the basic Rules P&I

cover in respect of repatriation requirements in cases of insolvency and other

circumstances as set out under Guideline B2.5 of Regulation 2.5 of the MLC 2006

or domestic legislation by a state party implementing the Convention.  However they DO NOT, at this stage, contemplate the unpaid wages requirement

under MLC 2006. This does not become mandatory until 2016. Further discussion

is inevitable on this point.

 The Rule change wordings, although varying slightly from one club to another, all

provide that, “ in so far that MLC 2006 is applicable”. In this context it is

interesting to note that in a typical Cub Rule change the reference to “crew” or

“seaman” persists whereas MLC 2006 references “seafarer” with a wider

definition.

 The MLC 2006 does not make provision for a single acceptable form of evidence

of financial security to be provided to the flag State and each individual State is

able to determine the form of financial security in its own legislation implementing

the Convention. The International Group is currently approaching each State

Party to ascertain whether they will accept an International Group Club P&I

certificate of entry in the form issued at 20th February 2013 as evidence of

compliance, where a Member’s cover includes crew risks.

The Fixed Premium P&I providers current position

We are engaging with the main fixed premium P&I providers to ascertain their current

status of readiness and can advise that whilst none as yet have taken the steps of the

International Group with regard to Policy Wording amendments , all are in discussions

with their respective lawyers to examine the relevant changes to be adopted and

introduced. Our information indicates that Policy Wording changes in this sector will

most likely be following a very similar path to that so far taken by the International

Group with regards to Guideline B 2.5 of Regulation 2.5 of the MLC 2006,

Here follows, for reference purposes, a briefing note assimilating the industry information

which has so far been published.

Overview regarding seafarers’ repatriation requirements under Guideline B 2.5.1 of the

Maritime Labour Convention 2006 (MLC 2006).

Whilst lengthy we trust that this overview will provide useful background information in

the lead up to 20th August 2013 when the MLC 2006 comes into effect. For ease of

reference we have elected to deal with this subject under the following sub-headings:

– Background;

– Application and Definitions;

– Brief outline;

– Policing the MLC 2006;

– Requirements.Background

On 20th August 2012 the International Labour Organisation ( ILO ) announced that, with

the Philippines having become the 30th country to ratify the Maritime Labour

Convention 2006 (MLC 2006), the necessary threshold of adhering countries had been

reached and that with the requisite 12 month lead in time the Convention would enter

into force on 20th August 2013.

The MLC (2006) is heralded by the ILO as the ‘fourth pillar’ to the international regime for

quality shipping sitting alongside and complementing the existing Conventions of the

International Maritime Organisation ( IMO ) namely, the International Convention for

the Safety of Life at Sea ( “SOLAS” ) , the International Convention on Standard of

Training, Certification and Watchkeeping ( “STCW” ) and the International Convention

for the Prevention of Pollution from Ships ( “MARPOL” ), having its focus exclusively on

seafarers’ rights and working conditions.

Application and Definitions

– The requirements will apply to:

(a)ships of 500 GT or over, engaged in international voyages; and

(b)ships of 500 GT or over, flying the flag of a member state and operating from a

port, or between ports, in another country.

– The term ‘Seafarer’ is defined very broadly in the MLC as: “any person who is

employed or engaged or works in any capacity on board a ship to which this

Convention applies’. As noted by various industry observers this definition

necessarily extends beyond the term ‘crew onboard’.

– The obligations under the MLC 2006 fall to the “Shipowner” the definition of whom

encompasses the Owner of the ship or another organization or person to whom

the Owner has entrusted responsibility for her operation such as a shipmanager ,

manning agent or bareboat charterer.

Brief Outline

MLC 2006 has incorporated and consolidated 68 existing international labour standards

into a single text, consisting of 3 separate but related parts: 16 Articles, the Regulations

and the Code. The Articles and Regulations set out the essential rights, principles and

obligations of Members ratifying the Convention and the Code contains the detail for

the implementation of the Regulations. It consists of Part A (mandatory standards) and

Part B (non-mandatory guidelines). The Regulations and Code are broken down into

five main Titles with each containing provisions relating to particular right or principle.

Below are the five main headings of the Code: Minimum Requirements for Seafarers to Work on a Ship

 Minimum age;

 Medical certificate;

 Training and qualifications;

 Recruitment and placament.

Conditions of Employment

 Seafarers’ employment agreements;

 Wages;

 Hours of work and hours of rest;

 Entitlement to leave;

 Repatriation;

 Seafarer compensation for the ship’s loss or foundering;

 Manning levels;

 Career and skill development and opportunities for seafarers’ employment.

Accommodation, Recreational Facilities, Food and Catering

 Accommodation and recreational facilities;

 Food and catering.

Health protection, Medical Care, Welfare and Social Security Protection

 Medical care on board ship and ashore;

 Shipowners’ liability;

 Health and safety protection and accident prevention;

 Access to shore-based welfare facilities;

 Social security.Compliance and Enforcement

 Flag State responsibilities;

 Port State responsibilities;

 Labour-supplying responsibilities.

The language used in the MLC 2006 is often, and perhaps purposefully, slightly

ambiguous, for example the words “adequate”, “suitable”, “appropriate”,

“reasonable” could be open to wide interpretation.

Policing the MLC 2006

The Flag States are required to review, verify and certify Owners MLC 2006 compliance.

Owners of vessels of 500 GT or more engaged in international trading are will required

to submit a Declaration of Maritime Labour Compliance (DMLC) to their own Flag State,

which must be a party to the Convention. The respective Flag State will then be in a

position to issue a Maritime Labour Certificate a copy of which needs to be “posted in

a conspicuous place on board where it is available to seafarers”.

The issued Maritime Labour Certifcate will have a validity of a maximum 5 years with the

requirement for intermediate inspections to be held between the second and the third

year anniversary dates.

Flag States are to ensure that domestic regulations operate for vessels smaller than 500

GT. Whilst certification for these vessels is not obligatory the Flag State is mandated at

three year intervals to inspect the vessels and ascertain that 14 minimum requirements

are being met.

Even if vessels are under flags of non- ratifying countries the port state control of a

ratifying country will carry out inspections and these vessels which may be detained if

they do not the 14 minimum standards set out by MLC 2006, in the so called ‘no more

favourable treatment clause’. This policing is aimed to avoid a ‘flight of convenience’

for shipowners to non-ratifying flag states that do not require adherence to MLC (2006)

regulations towards seafarers.

Requirements

At this juncture we have deliberately avoided going into too much detail on the

specific requirements within the Code, rather we have concentrated on the matters to

date addressed by The International Group of P&I Clubs. The MLC 2006 stipulates, amongst other things, that Member States shall ensure that

seafarers on ships flying their flag are entitled to:

(a) repatriation, including repatriation in cases of a shipowner’s insolvency (effectively

abandonment) and for which financial security should be in place;

(b) compensation in the event of death or long term disability due to an occupational

injury, illness or hazard as set out in national law, the seafarer’s employment agreement

or collective agreement and for which financial security must be in place. Ships flying

the flag of a State Party to the MLC 2006 will therefore need to have evidence that

financial security is in place to ensure compliance with (a) and (b) above. There is no

explicit provision in the MLC 2006 which sets out definitions or acceptable instruments,

uniformly applicable to all flag state signatories with regards to satisfying ‘financial

security’.

Unlike other international conventions, for example the Bunkers Convention 2001 and

the 1992 CLC, the MLC 2006 does not require ‘blue cards’. Each flag state will

determine its own requirements within their own legislation for acceptable ‘financial

security’ to meet the obligations of (a) and (b) above.

Furthermore the MLC also provides that seafarers are entitled to unemployment

compensation resulting from a ship’s loss or foundering for each day the seafarer

remains unemployed, although here there is no requirement to have ‘financial security’

in place. The total sum of such compensation may be limited to two months wages.

Conclusion

We shall keep updating this Newsletter as more details are made available.

With just five months remaining to the introduction of The Maritime Labour Convention 2006 ( MLC 2006 ) on 20th August 2013 the purpose of this Newsletter is to provide:- an introduction to the actions so far taken by the International Group of P&I Clubs and the Fixed Premium P&I Market with specific regard to the Guideline B 2.5 of Regulation 2.5 of the MLC 2006 ‘requirements for repatriating seafarers’;- an overview of the MLC 2006 scope , requirements and operation.Significant information has already been circulated by P&I providers and the industrypress and our introductory Newsletter is aimed at condensing the fundamentals into a single document which will be then be complemented and updated with further news bulletins from a P&I perspective as time progresses up to the 20th August 2013.The International Group of P&I Clubs current position The P&I Policy Year 2013/14 has seen all Clubs of the International Group issue circular notices of Rule changes which have been adopted. These are intended to address and augment the scope of the basic Rules P&I cover in respect of repatriation requirements in cases of insolvency and other circumstances as set out under Guideline B2.5 of Regulation 2.5 of the MLC 2006or domestic legislation by a state party implementing the Convention.  However they DO NOT, at this stage, contemplate the unpaid wages requirement under MLC 2006. This does not become mandatory until 2016. Further discussion is inevitable on this point. The Rule change wordings, although varying slightly from one club to another, all provide that, “ in so far that MLC 2006 is applicable”. In this context it is interesting to note that in a typical Cub Rule change the reference to “crew” or “seaman” persists whereas MLC 2006 references “seafarer” with a widerdefinition. The MLC 2006 does not make provision for a single acceptable form of evidence of financial security to be provided to the flag State and each individual State is able to determine the form of financial security in its own legislation implementing the Convention. The International Group is currently approaching each State Party to ascertain whether they will accept an International Group Club P&I certificate of entry in the form issued at 20th February 2013 as evidence of compliance, where a Member’s cover includes crew risks.The Fixed Premium P&I providers current positionWe are engaging with the main fixed premium P&I providers to ascertain their current status of readiness and can advise that whilst none as yet have taken the steps of the International Group with regard to Policy Wording amendments , all are in discussions with their respective lawyers to examine the relevant changes to be adopted and introduced. Our information indicates that Policy Wording changes in this sector will most likely be following a very similar path to that so far taken by the International Group with regards to Guideline B 2.5 of Regulation 2.5 of the MLC 2006, Here follows, for reference purposes, a briefing note assimilating the industry information which has so far been published.Overview regarding seafarers’ repatriation requirements under Guideline B 2.5.1 of the Maritime Labour Convention 2006 (MLC 2006). Whilst lengthy we trust that this overview will provide useful background information in the lead up to 20th August 2013 when the MLC 2006 comes into effect. For ease of reference we have elected to deal with this subject under the following sub-headings:- Background;- Application and Definitions;- Brief outline;- Policing the MLC 2006;- Requirements.BackgroundOn 20th August 2012 the International Labour Organisation ( ILO ) announced that, with the Philippines having become the 30th country to ratify the Maritime Labour Convention 2006 (MLC 2006), the necessary threshold of adhering countries had been reached and that with the requisite 12 month lead in time the Convention would enter into force on 20th August 2013.The MLC (2006) is heralded by the ILO as the ‘fourth pillar’ to the international regime for quality shipping sitting alongside and complementing the existing Conventions of the International Maritime Organisation ( IMO ) namely, the International Convention for the Safety of Life at Sea ( “SOLAS” ) , the International Convention on Standard of Training, Certification and Watchkeeping ( “STCW” ) and the International Convention for the Prevention of Pollution from Ships ( “MARPOL” ), having its focus exclusively on seafarers’ rights and working conditions.Application and Definitions- The requirements will apply to:(a)ships of 500 GT or over, engaged in international voyages; and(b)ships of 500 GT or over, flying the flag of a member state and operating from a port, or between ports, in another country.- The term ‘Seafarer’ is defined very broadly in the MLC as: “any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies’. As noted by various industry observers this definition necessarily extends beyond the term ‘crew onboard’.- The obligations under the MLC 2006 fall to the “Shipowner” the definition of whom encompasses the Owner of the ship or another organization or person to whom the Owner has entrusted responsibility for her operation such as a shipmanager , manning agent or bareboat charterer.Brief OutlineMLC 2006 has incorporated and consolidated 68 existing international labour standardsinto a single text, consisting of 3 separate but related parts: 16 Articles, the Regulations and the Code. The Articles and Regulations set out the essential rights, principles and obligations of Members ratifying the Convention and the Code contains the detail for the implementation of the Regulations. It consists of Part A (mandatory standards) and Part B (non-mandatory guidelines). The Regulations and Code are broken down into five main Titles with each containing provisions relating to particular right or principle Below are the five main headings of the Code:Minimum Requirements for Seafarers to Work on a Ship Minimum age; Medical certificate; Training and qualifications; Recruitment and placament.Conditions of Employment Seafarers’ employment agreements; Wages; Hours of work and hours of rest; Entitlement to leave; Repatriation; Seafarer compensation for the ship’s loss or foundering; Manning levels; Career and skill development and opportunities for seafarers’ employment. Accommodation, Recreational Facilities, Food and Catering Accommodation and recreational facilities; Food and catering.Health protection, Medical Care, Welfare and Social Security Protection Medical care on board ship and ashore; Shipowners’ liability; Health and safety protection and accident prevention; Access to shore-based welfare facilities; Social security.Compliance and Enforcement Flag State responsibilities; Port State responsibilities; Labour-supplying responsibilities.The language used in the MLC 2006 is often, and perhaps purposefully, slightly ambiguous, for example the words “adequate”, “suitable”, “appropriate”,“reasonable” could be open to wide interpretation.Policing the MLC 2006The Flag States are required to review, verify and certify Owners MLC 2006 compliance. Owners of vessels of 500 GT or more engaged in international trading are will required to submit a Declaration of Maritime Labour Compliance (DMLC) to their own Flag State, which must be a party to the Convention. The respective Flag State will then be in a position to issue a Maritime Labour Certificate a copy of which needs to be “posted in a conspicuous place on board where it is available to seafarers”.The issued Maritime Labour Certifcate will have a validity of a maximum 5 years with the requirement for intermediate inspections to be held between the second and the third year anniversary dates.Flag States are to ensure that domestic regulations operate for vessels smaller than 500 GT. Whilst certification for these vessels is not obligatory the Flag State is mandated at three year intervals to inspect the vessels and ascertain that 14 minimum requirements are being met. Even if vessels are under flags of non- ratifying countries the port state control of a ratifying country will carry out inspections and these vessels which may be detained if they do not the 14 minimum standards set out by MLC 2006, in the so called ‘no more favourable treatment clause’. This policing is aimed to avoid a ‘flight of convenience’ for shipowners to non-ratifying flag states that do not require adherence to MLC (2006) regulations towards seafarers.Requirements At this juncture we have deliberately avoided going into too much detail on the specific requirements within the Code, rather we have concentrated on the matters to date addressed by The International Group of P&I Clubs.The MLC 2006 stipulates, amongst other things, that Member States shall ensure that seafarers on ships flying their flag are entitled to: (a) repatriation, including repatriation in cases of a shipowner’s insolvency (effectively abandonment) and for which financial security should be in place;(b) compensation in the event of death or long term disability due to an occupational injury, illness or hazard as set out in national law, the seafarer’s employment agreement or collective agreement and for which financial security must be in place. Ships flying the flag of a State Party to the MLC 2006 will therefore need to have evidence that financial security is in place to ensure compliance with (a) and (b) above. There is no explicit provision in the MLC 2006 which sets out definitions or acceptable instruments, uniformly applicable to all flag state signatories with regards to satisfying ‘financial security’. Unlike other international conventions, for example the Bunkers Convention 2001 and the 1992 CLC, the MLC 2006 does not require ‘blue cards’. Each flag state will determine its own requirements within their own legislation for acceptable ‘financial security’ to meet the obligations of (a) and (b) above. Furthermore the MLC also provides that seafarers are entitled to unemployment compensation resulting from a ship’s loss or foundering for each day the seafarer remains unemployed, although here there is no requirement to have ‘financial security’ in place. The total sum of such compensation may be limited to two months wages. ConclusionWe shall keep updating this Newsletter as more details are made available.

Источник: http://www.plferrari.com/public/file/circulars/14_PLF_renewal_5-4.pdf