Below are some of the  important provisions from Title 5 - Compliance and enforcement Note that the requirements of this Title cannot be implemented through substantially equivalent provisions ( Paragraphs 2 and 3 of Title 5). The MLC, 2006, provides in Article VI, paragraphs 3 and 4, that in some circumstances a national provision implementing the rights and principles of the Convention in a manner different from that set out in Part A of the Code will be considered as substantially equivalent if the Member concerned satisfies itself that the relevant legislation or other implementing measure is conducive to the full achievement of the general object and purpose of the provision or provisions of Part A of the Code concerned and gives effect to the provision or provisions of Part A of the Code concerned.  Flag State responsibilities (Regulation 5.1) All ships covered by the MLC, 2006 are subject to inspection for all the requirements of the Convention (Regulation 5.1.4.1). For ships that will be certified the provisions of Regulation 5.1.3 and Standard A5.1.3 will also apply. The inspection standards are the national requirements implementing the MLC, 2006. Maritime labour certificate and declaration of maritime labour compliance (Regulation 5.1.3). A list of 16 areas (A5.1.3.1) after the entry of 2014 amendments, into the working and living conditions of seafarers must be inspected and certified as complying with the national laws and regulations or other measures implementing the requirements of the MLC, 2006, is contained in Appendix A5-I to the Convention. These areas are: minimum age; medical certification; qualifications of seafarers; seafarers employment agreements; use of any licensed or certified or regulated private recruitment and placement service;  hours of work or rest; manning levels for the ship; accommodation;  on-board recreational facilities; food and catering; health and safety and accident prevention; on-board medical care; on-board complaint procedures; payment of wages. financial security for repatriation financial security relating to shipowner's liability  Under Regulation 5.1.3, certification is mandatory for ships of: (i)  500 GT or over, engaged in international voyages; and (ii) 500 GT or over, flying the flag of a Member and operating from a port, or between ports, in another country. For the purpose of this Regulation, international voyage means a voyage from a country to a port outside such a country. Certification would not therefore be mandatory for a ship under 500 GT, even if engaged in international voyages or for a ship of 500 GT or more if it flies the flag of the flag State concerned and is not engaged in international voyages. Regulation 5.1.3, paragraph 2, allows a shipowner whose ship does not fall under the mandatory certification provisions to request that the ship be certified after the inspection. Standard A5.1.3.12 of the MLC, 2006, provides that A current valid Maritime Labour Certificate and Declaration of Maritime Labour Compliance shall be carried on the ship and a copy shall be posted in a conspicuous place on board where it is available to the seafarers. A copy shall be made available in accordance with national laws and regulations, upon request, to seafarers. The reference to both a current valid Maritime Labour Certificate and Declaration of Maritime Labour Compliance, which must be kept on board (with an English translation), and the copy which must be posted in a conspicuous place, indicates that both the original and a copy of the Certificate and DMLC are required on board ship. (ILO/FAQ C5.2.3h). Nothing in the MLC, 2006 prevents the issuance of electronic Maritime Labour Certificates and Declarations of Maritime Labour Compliance, as long as print-outs of such electronic documents are placed in a conspicuous place on board, in accordance with Standard A5.1.3 (ILO/FAQ C5.2.3i). Standard A5.1.3 sets out, in paragraph 1, a maximum period of validity of five years (subject to paragraph 3) for the Maritime Labour Certificate. Since this is a maximum, the flag States law could provide a shorter period of validity or give the competent authority or duly authorized Recognised Organisation (RO) to issue a certificate for a shorter period. The 2016 amendments to the Code of the MLC, 2006, allow for an extension of the validity of Maritime Labour Certificates for a further period not exceeding five months from the expiry date of the existing certificate in circumstances where ships have passed the renewal inspection but where a new certificate cannot immediately be issued and made available on board (Standard A5.1.3, paragraph 4)(ILO/FAQ C5.2.3j). Interim Maritime Labour Certificate need not be issued by a flag State. However if it chooses to do so, it would be allowed under the following situations (A5.1.3.5): (a) to new ships on delivery; (b) when a ship changes flag; or (c) when a shipowner assumes responsibility for the operation of a ship which is new to that shipowner. An interim Maritime Labour Certificate may be issued for a period not exceeding six months by the competent authority or a RO duly authorised for this purpose (A5.1.3.6). An interim Maritime Labour Certificate may only be issued following verification that: (a) the ship has been inspected, as far as reasonable and practicable, in the 14 areas: (b) the shipowner has demonstrated to the competent authority or RO that the ship has adequate procedures to comply with the Convention; (c) the master is familiar with the requirements of the Convention and the responsibilities for implementation; and (d) relevant information has been submitted to the competent authority or RO to produce a Declaration of Maritime Labour Compliance. Under paragraph 8, of Standard A5.1.3, a Declaration of Maritime Labour Compliance need not be issued for the period of validity of the interim certificate. (A5.1.3.8). An interim certificate cannot be further renewed after the initial 6 months. (A5.1.3.8) A Maritime Labour Certificate would cease to be valid under the following (A5.1.3.14): (a) if the relevant inspections are not completed within the periods prescribed by the MLC, 2006; (b) if the certificate is not endorsed following an intermediate inspection; (c) when a ship changes flag; (d) when a shipowner ceases to assume the responsibility for the operation of a ship; and (e) when substantial changes have been made to the structure or equipment covered in Title 3 of the MLC, 2006. Under Standard A5.1.3, paragraphs 16 and 17, a Maritime Labour Certificate must be withdrawn if there is evidence that the ship concerned does not comply with the requirements of this Convention and any required corrective action has not been taken.  A change of RO would not affect the validity of already issued certificates as the flag State remains fully responsible for the inspection and certification. (ILO/FAQ C5.2.3p).  Ships are required, by Regulation 5.1.5, paragraph 1, to have on-board procedures for the fair, effective and expeditious handling of seafarer complaints alleging breaches of the requirements of this Convention (including seafarers rights). The requirement relating to these procedures is one of the matters in the 16 areas that must be inspected and certified. Note that a country that has not ratified the MLC,2006, cannot issue a valid Maritime Labour Certificate to ships flying its flag. Some of these countries issue certificates of voluntary compliance which are not addressed by the MLC,2006 (ILO/FAQ C5.2.3q).  The obligation (under Standard A5.1.5, paragraph 2, of the MLC, 2006) is on countries to adopt laws or regulations to ensure that appropriate on-board complaint procedures are in place. Guideline B5.1.5, paragraph 1, recommends, subject to any relevant provisions of an applicable collective agreement, that a model for those procedures should be developed by the competent authority in close consultation with shipowners and seafarers organizations. (ILO/FAQ C5.1.y) The MLC, 2006, does not contain a model, but sets out some basic principles in Regulation 5.1.5 and Standard A5.1.5. These principles include the aim to resolve complaints at the lowest possible level, but to allow a right to appeal directly to the master or appropriate external authorities, as well as the right for the seafarer to be accompanied or represented, and to receive impartial advice, and safeguards against victimization for filing complaints. Guideline B5.1.5 suggests some principles detailed rules as a basis for discussion in the development of the on-board procedures. (ILO/FAQ C5.1z) Seafarers must be provided with a copy of the on-board complaint procedures applicable on their ship in addition to a copy of their seafarers employment agreement (A5.1.5.4). Although on-board complaint procedures must seek to resolve complaints at the lowest level possible, seafarers have a right to complain directly to the master and, where they consider it necessary, to appropriate external authorities (Standard A5.1.5.2). Regulation 5.1.6, paragraph 1, of the MLC, 2006, provides that each Member must hold an official inquiry into any serious marine casualty, leading to injury or loss of life, that involves a ship that flies its flag. Seafarers can find the address of the competent authority to which complaints may be made in the flag State or State of their residence by looking up on the ILO MLC, 2006, website under the link MLC, 2006, database, whereby the competent authority should be able to provide the information regarding complaints. (ILO/FAQ C5.2.5g) Port State Responsibilities (Regulation 5.2) A port state is the term used to describe the authority under international law for a country to exercise regulatory control with respect to foreign ships that come into its port. Mainly this takes the form of inspecting (often called port State control) the ship and conditions on board the ship. It can be regarded as a form of international cooperation under Article I, paragraph 2, of the MLC, 2006, whereby the port State role supports the efforts of flag States by inspecting ships to ensure that they remain compliant between inspections by the...

MEMBER SECTION

If you are a member, please login using the orange button at the top of the page to view the full article, or register. If you are unsure of your membership, or wish to become a member, please contact membership@bimco.org.