TITLE 5. COMPLIANCE AND ENFORCEMENT
- 1. The Regulations in this Title specify each Member's responsibility to fully
implement and enforce the principles and rights set out in the Articles of this
Convention as well as the particular obligations provided for under its Titles
1, 2, 3 and 4.
- 2. Paragraphs 3 and 4 of Article VI, which permit the implementation of Part A
of the Code through substantially equivalent provisions, do not apply to Part A
of the Code in this Title.
- 3. In accordance with paragraph 2 of Article VI, each Member shall implement its
responsibilities under the Regulations in the manner set out in the
corresponding Standards of Part A of the Code, giving due consideration to the
corresponding Guidelines in Part B of the Code.
- 4. The provisions of this Title shall be implemented bearing in mind that
seafarers and shipowners, like all other persons, are equal before the law and
are entitled to the equal protection of the law and shall not be subject to
discrimination in their access to courts, tribunals or other dispute resolution
mechanisms. The provisions of this Title do not determine legal jurisdiction or
a legal venue.
Regulation 5.1 - Flag State responsibilities
Purpose: To ensure that each Member implements its responsibilities under this
Convention with respect to ships that fly its flag
Regulation 5.1.1 - General principles
- 1. Each Member is responsible for ensuring implementation of its
obligations under this Convention on ships that fly its flag.
- 2. Each Member shall establish an effective system for the inspection
and certification of maritime labour conditions, in accordance with
Regulations 5.1.3 and 5.1.4 ensuring that the working and living
conditions for seafarers on ships that fly its flag meet, and continue
to meet, the standards in this Convention.
- 3. In establishing an effective system for the inspection and
certification of maritime labour conditions, a Member may, where
appropriate, authorize public institutions or other organizations
(including those of another Member, if the latter agrees) which it
recognizes as competent and independent to carry out inspections or to
issue certificates or to do both. In all cases, the Member shall remain
fully responsible for the inspection and certification of the working
and living conditions of the seafarers concerned on ships that fly its
flag.
- 4. A maritime labour certificate, complemented by a declaration of
maritime labour compliance, shall constitute prima facie evidence that
the ship has been duly inspected by the Member whose flag it flies and
that the requirements of this Convention relating to working and living
conditions of the seafarers have been met to the extent so
certified.
- 5. Information about the system referred to in paragraph 2 of this
Regulation, including the method used for assessing its effectiveness,
shall be included in the Member's reports to the International Labour
Office pursuant to article 22 of the Constitution.
Standard A5.1.1 - General principles
- 1. Each Member shall establish clear objectives and standards
covering the administration of its inspection and certification
systems, as well as adequate overall procedures for its assessment
of the extent to which those objectives and standards are being
attained.
- 2. Each Member shall require all ships that fly its flag to have a
copy of this Convention available on board.
Guideline B5.1.1 – General principles
- 1. The competent authority should make appropriate arrangements to
promote effective cooperation between public institutions and other
organizations, referred to in Regulations 5.1.1 and 5.1.2, concerned
with seafarers' shipboard working and living conditions.
- 2. In order to better ensure cooperation between inspectors and
shipowners, seafarers and their respective organizations, and to
maintain or improve seafarers' working and living conditions, the
competent authority should consult the representatives of such
organizations at regular intervals as to the best means of attaining
these ends. The manner of such consultation should be determined by
the competent authority after consulting with shipowners' and
seafarers' organizations.
Regulation 5.1.2 – Authorization of recognized organizations
- 1. The public institutions or other organizations referred to in
paragraph 3 of Regulation 5.1.1 ("recognized organizations") shall have
been recognized by the competent authority as meeting the requirements
in the Code regarding competency and independence. The inspection or
certification functions which the recognized organizations may be
authorized to carry out shall come within the scope of the activities
that are expressly mentioned in the Code as being carried out by the
competent authority or a recognized organization.
- 2. The reports referred to in paragraph 5 of Regulation 5.1.1 shall
contain information regarding any recognized organization, the extent of
authorizations given and the arrangements made by the Member to ensure
that the authorized activities are carried out completely and
effectively.
Standard A5.1.2 – Authorization of recognized organizations
- 1. For the purpose of recognition in accordance with paragraph 1 of
Regulation 5.1.2, the competent authority shall review the
competency and independence of the organization concerned and
determine whether the organization has demonstrated, to the extent
necessary for carrying out the activities covered by the
authorization conferred on it, that the organization:
- (a) has the necessary expertise in the relevant aspects of
this Convention and an appropriate knowledge of ship
operations, including the minimum requirements for seafarers
to work on a ship, conditions of employment, accommodation,
recreational facilities, food and catering, accident
prevention, health protection, medical care, welfare and
social security protection;
- (b) has the ability to maintain and update the expertise of
its personnel;
- (c) has the necessary knowledge of the requirements of this
Convention as well as of applicable national laws and
regulations and relevant international instruments; and
- (d) is of the appropriate size, structure, experience and
capability commensurate with the type and degree of
authorization.
- 2. Any authorizations granted with respect to inspections shall, as
a minimum, empower the recognized organization to require the
rectification of deficiencies that it identifies in seafarers'
working and living conditions and to carry out inspections in this
regard at the request of a port State.
- 3. Each Member shall establish:
- (a) a system to ensure the adequacy of work performed by
recognized organizations, which includes information on all
applicable national laws and regulations and relevant
international instruments; and
- (b) procedures for communication with and oversight of such
organizations.
- 4. Each Member shall provide the International Labour Office with a
current list of any recognized organizations authorized to act on
its behalf and it shall keep this list up to date. The list shall
specify the functions that the recognized organizations have been
authorized to carry out. The Office shall make the list publicly
available.
Guideline B5.1.2 – Authorization of recognized organizations
- 1. The organization seeking recognition should demonstrate the
technical, administrative and managerial competence and capacity to
ensure the provision of timely service of satisfactory quality.
- 2. In evaluating the capability of an organization, the competent
authority should determine whether the organization:
- (a) has adequate technical, managerial and support
staff;
- (b) has sufficient qualified professional staff to provide
the required service, representing an adequate geographical
coverage;
- (c) has proven ability to provide a timely service of
satisfactory quality; and
- (d) is independent and accountable in its operations.
- 3. The competent authority should conclude a written agreement with
any organization that it recognizes for purposes of an
authorization. The agreement should include the following elements:
- (a) scope of application;
- (b) purpose;
- (c) general conditions;
- (d) the execution of functions under authorization;
- (e) legal basis of the functions under authorization;
- (f) reporting to the competent authority;
- (g) specification of the authorization from the competent
authority to the recognized organization; and
- (h) the competent authority's supervision of activities
delegated to the recognized organization.
- 4. Each Member should require the recognized organizations to
develop a system for qualification of staff employed by them as
inspectors to ensure the timely updating of their knowledge and
expertise.
- 5. Each Member should require the recognized organizations to
maintain records of the services performed by them such that they
are able to demonstrate achievement of the required standards in the
items covered by the services.
- 6. In establishing the oversight procedures referred to in Standard
A5.1.2, paragraph 3(b), each Member should take into account the
Guidelines for the Authorization of Organizations Acting on Behalf
of the Administration, adopted in the framework of the International
Maritime Organization.
Regulation 5.1.3 - Maritime labour certificate and declaration of maritime labour compliance
- 1. This Regulation applies to ships of:
- (a) 500 gross tonnage or over, engaged in international voyages;
and
- (b) 500 gross tonnage 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.
- 2. This Regulation also applies to any ship that flies the flag of a
Member and is not covered by paragraph 1 of this Regulation, at the
request of the shipowner to the Member concerned.
- 3. Each Member shall require ships that fly its flag to carry and
maintain a maritime labour certificate certifying that the working and
living conditions of seafarers on the ship, including measures for
ongoing compliance to be included in the declaration of maritime labour
compliance referred to in paragraph 4 of this Regulation, have been
inspected and meet the requirements of national laws or regulations or
other measures implementing this Convention.
- 4. Each Member shall require ships that fly its flag to carry and
maintain a declaration of maritime labour compliance stating the
national requirements implementing this Convention for the working and
living conditions for seafarers and setting out the measures adopted by
the shipowner to ensure compliance with the requirements on the ship or
ships concerned.
- 5. The maritime labour certificate and the declaration of maritime
labour compliance shall conform to the model prescribed by the
Code.
- 6. Where the competent authority of the Member or a recognized
organization duly authorized for this purpose has ascertained through
inspection that a ship that flies the Member’s flag meets or continues
to meet the standards of this Convention, it shall issue or renew a
maritime labour certificate to that effect and maintain a publicly
available record of that certificate.
- 7. Detailed requirements for the maritime labour certificate and the
declaration of maritime labour compliance, including a list of the
matters that must be inspected and approved, are set out in Part A of
the Code.
Standard A5.1.3 – Maritime labour certificate and declaration of maritime labour compliance
- 1. The maritime labour certificate shall be issued to a ship by the
competent authority, or by a recognized organization duly authorized
for this purpose, for a period which shall not exceed five years. A
list of matters that must be inspected and found to meet national
laws and regulations or other measures implementing the requirements
of this Convention regarding the working and living conditions of
seafarers on ships before a maritime labour certificate can be
issued is found in Appendix A5-I.
- 2. The validity of the maritime labour certificate shall be subject
to an intermediate inspection by the competent authority, or by a
recognized organization duly authorized for this purpose, to ensure
continuing compliance with the national requirements implementing
this Convention. If only one intermediate inspection is carried out
and the period of validity of the certificate is five years, it
shall take place between the second and third anniversary dates of
the certificate. Anniversary date means the day and month of each
year which will correspond to the date of expiry of the maritime
labour certificate. The scope and depth of the intermediate
inspection shall be equal to an inspection for renewal of the
certificate. The certificate shall be endorsed following
satisfactory intermediate inspection.
- 3. Notwithstanding paragraph 1 of this Standard, when the renewal
inspection has been completed within three months before the expiry
of the existing maritime labour certificate, the new maritime labour
certificate shall be valid from the date of completion of the
renewal inspection for a period not exceeding five years from the
date of expiry of the existing certificate. When the renewal
inspection is completed more than three months before the expiry
date of the existing maritime labour certificate, the new maritime
labour certificate shall be valid for a period not exceeding five
years starting from the date of completion of the renewal
inspection.
- 4. Notwithstanding paragraph 1 of this Standard, where, after a
renewal inspection completed prior to the expiry of a maritime
labour certificate, the ship is found to continue to meet national
laws and regulations or other measures implementing the requirements
of this Convention, but a new certificate cannot immediately be
issued to and made available on board that ship, the competent
authority, or the recognized organization duly authorized for this
purpose, may extend the validity of the certificate for a further
period not exceeding five months from the expiry date of the
existing certificate, and endorse the certificate accordingly. The
new certificate shall be valid for a period not exceeding five years
starting from the date provided for in paragraph 3 of this
Standard.
- 5. A maritime labour certificate may be issued on an interim basis:
- (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.
- 6. An interim maritime labour certificate may be issued for a period
not exceeding six months by the competent authority or a recognized
organization duly authorized for this purpose.
- 7. An interim maritime labour certificate may only be issued
following verification that:
- (a) the ship has been inspected, as far as reasonable and
practicable, for the matters listed in Appendix A5-I, taking
into account verification of items under subparagraphs (b),
(c) and (d) of this paragraph;
- (b) the shipowner has demonstrated to the competent
authority or recognized organization that the ship has
adequate procedures to comply with this Convention;
- (c) the master is familiar with the requirements of this
Convention and the responsibilities for implementation;
and
- (d) relevant information has been submitted to the competent
authority or recognized organization to produce a
declaration of maritime labour compliance.
- 8. A full inspection in accordance with paragraph 1 of this Standard
shall be carried out prior to expiry of the interim certificate to
enable issue of the full-term maritime labour certificate. No
further interim certificate may be issued following the initial six
months referred to in paragraph 6 of this Standard. A declaration of
maritime labour compliance need not be issued for the period of
validity of the interim certificate.
- 9. The maritime labour certificate, the interim maritime labour
certificate and the declaration of maritime labour compliance shall
be drawn up in the form corresponding to the models given in
Appendix A5-II.
- 10. The declaration of maritime labour compliance shall be attached
to the maritime labour certificate. It shall have two parts:
- (a) Part I shall be drawn up by the competent authority
which shall: (i) identify the list of matters to be
inspected in accordance with paragraph 1 of this Standard;
(ii) identify the national requirements embodying the
relevant provisions of this Convention by providing a
reference to the relevant national legal provisions as well
as, to the extent necessary, concise information on the main
content of the national requirements; (iii) refer to
ship-type specific requirements under national legislation;
(iv) record any substantially equivalent provisions adopted
pursuant to paragraph 3 of Article VI; and (v) clearly
indicate any exemption granted by the competent authority as
provided in Title 3; and
- (b) Part II shall be drawn up by the shipowner and shall
identify the measures adopted to ensure ongoing compliance
with the national requirements between inspections and the
measures proposed to ensure that there is continuous
improvement.
- The competent authority or recognized organization duly authorized
for this purpose shall certify Part II and shall issue the
declaration of maritime labour compliance.
- 11. The results of all subsequent inspections or other verifications
carried out with respect to the ship concerned and any significant
deficiencies found during any such verification shall be recorded,
together with the date when the deficiencies were found to have been
remedied. This record, accompanied by an English-language
translation where it is not in English, shall, in accordance with
national laws or regulations, be inscribed upon or appended to the
declaration of maritime labour compliance or made available in some
other way to seafarers, flag State inspectors, authorized officers
in port States and shipowners’ and seafarers’ representatives.
- 12. A current valid maritime labour certificate and declaration of
maritime labour compliance, accompanied by an English-language
translation where it is not in English, 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, flag State inspectors, authorized officers in port
States, and shipowners’ and seafarers’ representatives.
- 13. The requirement for an English-language translation in
paragraphs 11 and 12 of this Standard does not apply in the case of
a ship not engaged in an international voyage.
- 14. A certificate issued under paragraph 1 or 5 of this Standard
shall cease to be valid in any of the following cases:
- (a) if the relevant inspections are not completed within the
periods specified under paragraph 2 of this Standard;
- (b) if the certificate is not endorsed in accordance with
paragraph 2 of this Standard;
- (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.
- 15. In the case referred to in paragraph 14(c), (d) or (e) of this
Standard, a new certificate shall only be issued when the competent
authority or recognized organization issuing the new certificate is
fully satisfied that the ship is in compliance with the requirements
of this Standard.
- 16. A maritime labour certificate shall be withdrawn by the
competent authority or the recognized organization duly authorized
for this purpose by the flag State, 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.
- 17. When considering whether a maritime labour certificate should be
withdrawn in accordance with paragraph 16 of this Standard, the
competent authority or the recognized organization shall take into
account the seriousness or the frequency of the deficiencies.
Guideline B5.1.3 – Maritime labour certificate and declaration of maritime labour compliance
- 1. The statement of national requirements in Part I of the
declaration of maritime labour compliance should include or be
accompanied by references to the legislative provisions relating to
seafarers’ working and living conditions in each of the matters
listed in Appendix A5-I. Where national legislation precisely
follows the requirements stated in this Convention, a reference may
be all that is necessary. Where a provision of the Convention is
implemented through substantial equivalence as provided under
Article VI, paragraph 3, this provision should be identified and a
concise explanation should be provided. Where an exemption is
granted by the competent authority as provided in Title 3, the
particular provision or provisions concerned should be clearly
indicated.
- 2. The measures referred to in Part II of the declaration of
maritime labour compliance, drawn up by the shipowner, should, in
particular, indicate the occasions on which ongoing compliance with
particular national requirements will be verified, the persons
responsible for verification, the records to be taken, as well as
the procedures to be followed where non-compliance is noted. Part II
may take a number of forms. It could make reference to other more
comprehensive documentation covering policies and procedures
relating to other aspects of the maritime sector, for example
documents required by the International Safety Management (ISM) Code
or the information required by Regulation 5 of the SOLAS Convention,
Chapter XI-1 relating to the ship’s Continuous Synopsis Record.
- 3. The measures to ensure ongoing compliance should include general
international requirements for the shipowner and master to keep
themselves informed of the latest advances in technology and
scientific findings concerning workplace design, taking into account
the inherent dangers of seafarers’ work, and to inform the
seafarers’ representatives accordingly, thereby guaranteeing a
better level of protection of the seafarers’ working and living
conditions on board.
- 4. The declaration of maritime labour compliance should, above all,
be drafted in clear terms designed to help all persons concerned,
such as flag State inspectors, authorized officers in port States
and seafarers, to check that the requirements are being properly
implemented.
- 5. An example of the kind of information that might be contained in
a declaration of maritime labour compliance is given in Appendix
B5-I.
- 6. When a ship changes flag as referred to in Standard A5.1.3,
paragraph 14(c), and where both States concerned have ratified this
Convention, the Member whose flag the ship was formerly entitled to
fly should, as soon as possible, transmit to the competent authority
of the other Member copies of the maritime labour certificate and
the declaration of maritime labour compliance carried by the ship
before the change of flag and, if applicable, copies of the relevant
inspection reports if the competent authority so requests within
three months after the change of flag has taken place.
Regulation 5.1.4 – Inspection and enforcement
- 1. Each Member shall verify, through an effective and coordinated system
of regular inspections, monitoring and other control measures, that
ships that fly its flag comply with the requirements of this Convention
as implemented in national laws and regulations.
- 2. Detailed requirements regarding the inspection and enforcement system
referred to in paragraph 1 of this Regulation are set out in Part A of
the Code.
Standard A5.1.4 – Inspection and enforcement
- 1. Each Member shall maintain a system of inspection of the
conditions for seafarers on ships that fly its flag which shall
include verification that the measures relating to working and
living conditions as set out in the declaration of maritime labour
compliance, where applicable, are being followed, and that the
requirements of this Convention are met.
- 2. The competent authority shall appoint a sufficient number of
qualified inspectors to fulfil its responsibilities under paragraph
1 of this Standard. Where recognized organizations have been
authorized to carry out inspections, the Member shall require that
personnel carrying out the inspection are qualified to undertake
these duties and shall provide them with the necessary legal
authority to perform their duties.
- 3. Adequate provision shall be made to ensure that the inspectors
have the training, competence, terms of reference, powers, status
and independence necessary or desirable so as to enable them to
carry out the verification and ensure the compliance referred to in
paragraph 1 of this Standard.
- 4. Inspections shall take place at the intervals required by
Standard A5.1.3, where applicable. The interval shall in no case
exceed three years.
- 5. If a Member receives a complaint which it does not consider
manifestly unfounded or obtains evidence that a ship that flies its
flag does not conform to the requirements of this Convention or that
there are serious deficiencies in the implementation of the measures
set out in the declaration of maritime labour compliance, the Member
shall take the steps necessary to investigate the matter and ensure
that action is taken to remedy any deficiencies found.
- 6. Adequate rules shall be provided and effectively enforced by each
Member in order to guarantee that inspectors have the status and
conditions of service to ensure that they are independent of changes
of government and of improper external influences.
- 7. Inspectors, issued with clear guidelines as to the tasks to be
performed and provided with proper credentials, shall be empowered:
- (a) to board a ship that flies the Member’s flag;
- to carry out any examination, test or inquiry which they may
consider necessary in order to satisfy themselves that the
standards are being strictly observed; and
- (c) to require that any deficiency is remedied and, where
they have grounds to believe that deficiencies constitute a
serious breach of the requirements of this Convention
(including seafarers’ rights), or represent a significant
danger to seafarers’ safety, health or security, to prohibit
a ship from leaving port until necessary actions are
taken.
- 8. Any action taken pursuant to paragraph 7(c) of this Standard
shall be subject to any right of appeal to a judicial or
administrative authority.
- 9. Inspectors shall have the discretion to give advice instead of
instituting or recommending proceedings when there is no clear
breach of the requirements of this Convention that endangers the
safety, health or security of the seafarers concerned and where
there is no prior history of similar breaches.
- 10. Inspectors shall treat as confidential the source of any
grievance or complaint alleging a danger or deficiency in relation
to seafarers’ working and living conditions or a violation of laws
and regulations and give no intimation to the shipowner, the
shipowner’s representative or the operator of the ship that an
inspection was made as a consequence of such a grievance or
complaint.
- 11. Inspectors shall not be entrusted with duties which might,
because of their number or nature, interfere with effective
inspection or prejudice in any way their authority or impartiality
in their relations with shipowners, seafarers or other interested
parties. In particular, inspectors shall:
- (a) be prohibited from having any direct or indirect
interest in any operation which they are called upon to
inspect; and
- (b) subject to appropriate sanctions or disciplinary
measures, not reveal, even after leaving service, any
commercial secrets or confidential working processes or
information of a personal nature which may come to their
knowledge in the course of their duties.
- 12. Inspectors shall submit a report of each inspection to the
competent authority. One copy of the report in English or in the
working language of the ship shall be furnished to the master of the
ship and another copy shall be posted on the ship’s notice board for
the information of the seafarers and, upon request, sent to their
representatives.
- 13. The competent authority of each Member shall maintain records of
inspections of the conditions for seafarers on ships that fly its
flag. It shall publish an annual report on inspection activities
within a reasonable time, not exceeding six months, after the end of
the year.
- 14. In the case of an investigation pursuant to a major incident,
the report shall be submitted to the competent authority as soon as
practicable, but not later than one month following the conclusion
of the investigation.
- 15. When an inspection is conducted or when measures are taken under
this Standard, all reasonable efforts shall be made to avoid a ship
being unreasonably detained or delayed.
- 16. Compensation shall be payable in accordance with national laws
and regulations for any loss or damage suffered as a result of the
wrongful exercise of the inspectors’ powers. The burden of proof in
each case shall be on the complainant.
- 17. Adequate penalties and other corrective measures for breaches of
the requirements of this Convention (including seafarers’ rights)
and for obstructing inspectors in the performance of their duties
shall be provided for and effectively enforced by each Member.
Guideline B5.1.4 – Inspection and enforcement
- 1. The competent authority and any other service or authority wholly
or partly concerned with the inspection of seafarers’ working and
living conditions should have the resources necessary to fulfil
their functions. In particular:
- (a) each Member should take the necessary measures so that
duly qualified technical experts and specialists may be
called upon, as needed, to assist in the work of inspectors;
and
- (b) inspectors should be provided with conveniently situated
premises, equipment and means of transport adequate for the
efficient performance of their duties.
- 2. The competent authority should develop a compliance and
enforcement policy to ensure consistency and otherwise guide
inspection and enforcement activities related to this Convention.
Copies of this policy should be provided to all inspectors and
relevant law-enforcement officials and should be made available to
the public and shipowners and seafarers.
- 3. The competent authority should establish simple procedures to
enable it to receive information in confidence concerning possible
breaches of the requirements of this Convention (including
seafarers’ rights) presented by seafarers directly or by
representatives of the seafarers, and permit inspectors to
investigate such matters promptly, including:
- (a) enabling masters, seafarers or representatives of the
seafarers to request an inspection when they consider it
necessary; and
- (b) supplying technical information and advice to shipowners
and seafarers and organizations concerned as to the most
effective means of complying with the requirements of this
Convention and of bringing about a continual improvement in
seafarers’ on-board conditions.
- 4. Inspectors should be fully trained and sufficient in numbers to
secure the efficient discharge of their duties with due regard to:
- (a) the importance of the duties which the inspectors have
to perform, in particular the number, nature and size of
ships subject to inspection and the number and complexity of
the legal provisions to be enforced;
- (b) the resources placed at the disposal of the inspectors;
and
- (c) the practical conditions under which inspections must be
carried out in order to be effective.
- 5. Subject to any conditions for recruitment to the public service
which may be prescribed by national laws and regulations, inspectors
should have qualifications and adequate training to perform their
duties and where possible should have a maritime education or
experience as a seafarer. They should have adequate knowledge of
seafarers’ working and living conditions and of the English
language.
- 6. Measures should be taken to provide inspectors with appropriate
further training during their employment.
- 7. All inspectors should have a clear understanding of the
circumstances in which an inspection should be carried out, the
scope of the inspection to be carried out in the various
circumstances referred to and the general method of inspection.
- 8. Inspectors provided with proper credentials under the national
law should at a minimum be empowered:
- (a) to board ships freely and without previous notice;
however, when commencing the ship inspection, inspectors
should provide notification of their presence to the master
or person in charge and, where appropriate, to the seafarers
or their representatives;
- (b) to question the master, seafarer or any other person,
including the shipowner or the shipowner’s representative,
on any matter concerning the application of the requirements
under laws and regulations, in the presence of any witness
that the person may have requested;
- (c) to require the production of any books, log books,
registers, certificates or other documents or information
directly related to matters subject to inspection, in order
to verify compliance with the national laws and regulations
implementing this Convention;
- (d) to enforce the posting of notices required under the
national laws and regulations implementing this
Convention;
- (e) to take or remove, for the purpose of analysis, samples
of products, cargo, drinking water, provisions, materials
and substances used or handled;
- (f) following an inspection, to bring immediately to the
attention of the shipowner, the operator of the ship or the
master, deficiencies which may affect the health and safety
of those on board ship;
- (g) to alert the competent authority and, if applicable, the
recognized organization to any deficiency or abuse not
specifically covered by existing laws or regulations and
submit proposals to them for the improvement of the laws or
regulations; and
- (h) to notify the competent authority of any occupational
injuries or diseases affecting seafarers in such cases and
in such manner as may be prescribed by laws and
regulations.
- 9. When a sample referred to in paragraph 8(e) of this Guideline is
being taken or removed, the shipowner or the shipowner’s
representative, and where appropriate a seafarer, should be notified
or should be present at the time the sample is taken or removed. The
quantity of such a sample should be properly recorded by the
inspector.
- 10. The annual report published by the competent authority of each
Member, in respect of ships that fly its flag, should contain:
- (a) a list of laws and regulations in force relevant to
seafarers’ working and living conditions and any amendments
which have come into effect during the year;
- (b) details of the organization of the system of
inspection;
- (c) statistics of ships or other premises subject to
inspection and of ships and other premises actually
inspected;
- (d) statistics on all seafarers subject to its national laws
and regulations;
- (e) statistics and information on violations of legislation,
penalties imposed and cases of detention of ships; and
- (f) statistics on reported occupational injuries and
diseases affecting seafarers.
Regulation 5.1.5 – On-board complaint procedures
- 1. Each Member shall require that ships that fly its flag 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).
- 2. Each Member shall prohibit and penalize any kind of victimization of
a seafarer for filing a complaint.
- 3. The provisions in this Regulation and related sections of the Code
are without prejudice to a seafarer’s right to seek redress through
whatever legal means the seafarer considers appropriate.
Standard A5.1.5 – On-board complaint procedures
- 1. Without prejudice to any wider scope that may be given in
national laws or regulations or collective agreements, the on-board
procedures may be used by seafarers to lodge complaints relating to
any matter that is alleged to constitute a breach of the
requirements of this Convention (including seafarers’ rights).
- 2. Each Member shall ensure that, in its laws or regulations,
appropriate on-board complaint procedures are in place to meet the
requirements of Regulation 5.1.5. Such procedures shall seek to
resolve complaints at the lowest level possible. However, in all
cases, seafarers shall have a right to complain directly to the
master and, where they consider it necessary, to appropriate
external authorities.
- 3. The on-board complaint procedures shall include the right of the
seafarer to be accompanied or represented during the complaints
procedure, as well as safeguards against the possibility of
victimization of seafarers for filing complaints. The term
“victimization” covers any adverse action taken by any person with
respect to a seafarer for lodging a complaint which is not
manifestly vexatious or maliciously made.
- 4. In addition to a copy of their seafarers’ employment agreement,
all seafarers shall be provided with a copy of the on-board
complaint procedures applicable on the ship. This shall include
contact information for the competent authority in the flag State
and, where different, in the seafarers’ country of residence, and
the name of a person or persons on board the ship who can, on a
confidential basis, provide seafarers with impartial advice on their
complaint and otherwise assist them in following the complaint
procedures available to them on board the ship.
Guideline B5.1.5 – On-board complaint procedures
- 1. Subject to any relevant provisions of an applicable collective
agreement, the competent authority should, in close consultation
with shipowners’ and seafarers’ organizations, develop a model for
fair, expeditious and well-documented on-board complaint-handling
procedures for all ships that fly the Member’s flag. In developing
these procedures the following matters should be considered:
- ((a) many complaints may relate specifically to those
individuals to whom the complaint is to be made or even to
the master of the ship. In all cases seafarers should also
be able to complain directly to the master and to make a
complaint externally; and
- (b) in order to help avoid problems of victimization of
seafarers making complaints about matters under this
Convention, the procedures should encourage the nomination
of a person on board who can advise seafarers on the
procedures available to them and, if requested by the
complainant seafarer, also attend any meetings or hearings
into the subject matter of the complaint.
- 2. At a minimum the procedures discussed during the consultative
process referred to in paragraph 1 of this Guideline should include
the following:
- (a) complaints should be addressed to the head of the
department of the seafarer lodging the complaint or to the
seafarer’s superior officer;
- (b) the head of department or superior officer should then
attempt to resolve the matter within prescribed time limits
appropriate to the seriousness of the issues involved;
- (c) if the head of department or superior officer cannot
resolve the complaint to the satisfaction of the seafarer,
the latter may refer it to the master, who should handle the
matter personally;
- (d) seafarers should at all times have the right to be
accompanied and to be represented by another seafarer of
their choice on board the ship concerned;
- (e) all complaints and the decisions on them should be
recorded and a copy provided to the seafarer concerned;
- (f) if a complaint cannot be resolved on board, the matter
should be referred ashore to the shipowner, who should be
given an appropriate time limit for resolving the matter,
where appropriate, in consultation with the seafarers
concerned or any person they may appoint as their
representative; and
- (g) in all cases seafarers should have a right to file their
complaints directly with the master and the shipowner and
competent authorities.
Regulation 5.1.6 – Marine casualties
- 1. Each Member shall hold an official inquiry into any serious marine
casualty, leading to injury or loss of life, that involves a ship that
flies its flag. The final report of an inquiry shall normally be made
public.
- 2. Members shall cooperate with each other to facilitate the
investigation of serious marine casualties referred to in paragraph 1 of
this Regulation.
Standard A5.1.6 – Marine casualties
- (No provisions)
Guideline B5.1.6 – Marine casualties
- (No provisions)
Regulation 5.2 – Port State responsibilities
Purpose: To enable each Member to implement its responsibilities under this
Convention regarding international cooperation in the implementation and
enforcement of the Convention standards on foreign ships
Regulation 5.2.1 – Inspections in port
- 1. Every foreign ship calling, in the normal course of its business
or for operational reasons, in the port of a Member may be the
subject of inspection in accordance with paragraph 4 of Article V
for the purpose of reviewing compliance with the requirements of
this Convention (including seafarers’ rights) relating to the
working and living conditions of seafarers on the ship.
- 2. Each Member shall accept the maritime labour certificate and the
declaration of maritime labour compliance required under Regulation
5.1.3 as prima facie evidence of compliance with the requirements of
this Convention (including seafarers’ rights). Accordingly, the
inspection in its ports shall, except in the circumstances specified
in the Code, be limited to a review of the certificate and
declaration.
- 3. Inspections in a port shall be carried out by authorized officers
in accordance with the provisions of the Code and other applicable
international arrangements governing port State control inspections
in the Member. Any such inspection shall be limited to verifying
that the matter inspected is in conformity with the relevant
requirements set out in the Articles and Regulations of this
Convention and in Part A only of the Code.
- 4. Inspections that may be carried out in accordance with this
Regulation shall be based on an effective port State inspection and
monitoring system to help ensure that the working and living
conditions for seafarers on ships entering a port of the Member
concerned meet the requirements of this Convention (including
seafarers’ rights).
- 5. Information about the system referred to in paragraph 4 of this
Regulation, including the method used for assessing its
effectiveness, shall be included in the Member’s reports pursuant to
article 22 of the Constitution.
Standard A5.2.1 – Inspections in port
- 1. Where an authorized officer, having come on board to carry
out an inspection and requested, where applicable, the maritime
labour certificate and the declaration of maritime labour
compliance, finds that:
- (a) the required documents are not produced or
maintained or are falsely maintained or that the
documents produced do not contain the information
required by this Convention or are otherwise invalid;
or
- (b) there are clear grounds for believing that the
working and living conditions on the ship do not conform
to the requirements of this Convention; or
- (c) there are reasonable grounds to believe that the
ship has changed flag for the purpose of avoiding
compliance with this Convention; or
- (d) there is a complaint alleging that specific working
and living conditions on the ship do not conform to the
requirements of this Convention;
a more detailed inspection may be carried out to ascertain
the working and living conditions on board the ship. Such
inspection shall in any case be carried out where the working
and living conditions believed or alleged to be defective could
constitute a clear hazard to the safety, health or security of
seafarers or where the authorized officer has grounds to believe
that any deficiencies constitute a serious breach of the
requirements of this Convention (including seafarers’ rights). - 2. Where a more detailed inspection is carried out on a foreign
ship in the port of a Member by authorized officers in the
circumstances set out in subparagraph (a), (b) or (c) of
paragraph 1 of this Standard, it shall in principle cover the
matters listed in Appendix A5-III.
- 3. In the case of a complaint under paragraph 1(d) of this
Standard, the inspection shall generally be limited to matters
within the scope of the complaint, although a complaint, or its
investigation, may provide clear grounds for a detailed
inspection in accordance with paragraph 1(b) of this Standard.
For the purpose of paragraph 1(d) of this Standard, “complaint”
means information submitted by a seafarer, a professional body,
an association, a trade union or, generally, any person with an
interest in the safety of the ship, including an interest in
safety or health hazards to seafarers on board.
- 4. Where, following a more detailed inspection, the working and
living conditions on the ship are found not to conform to the
requirements of this Convention, the authorized officer shall
forthwith bring the deficiencies to the attention of the master
of the ship, with required deadlines for their rectification. In
the event that such deficiencies are considered by the
authorized officer to be significant, or if they relate to a
complaint made in accordance with paragraph 3 of this Standard,
the authorized officer shall bring the deficiencies to the
attention of the appropriate seafarers’ and shipowners’
organizations in the Member in which the inspection is carried
out, and may:
- (a) notify a representative of the flag State;
- (b) provide the competent authorities of the next port
of call with the relevant information.
- 5. The Member in which the inspection is carried out shall have
the right to transmit a copy of the officer’s report, which must
be accompanied by any reply received from the competent
authorities of the flag State within the prescribed deadline, to
the Director-General of the International Labour Office with a
view to such action as may be considered appropriate and
expedient in order to ensure that a record is kept of such
information and that it is brought to the attention of parties
which might be interested in availing themselves of relevant
recourse procedures.
- 6. Where, following a more detailed inspection by an authorized
officer, the ship is found not to conform to the requirements of
this Convention and:
- (a) the conditions on board are clearly hazardous to the
safety, health or security of seafarers; or
- (b) the non-conformity constitutes a serious or repeated
breach of the requirements of this Convention (including
seafarers’ rights);
the authorized officer shall take steps to ensure that the
ship shall not proceed to sea until any non-conformities that
fall within the scope of subparagraph (a) or (b) of this
paragraph have been rectified, or until the authorized officer
has accepted a plan of action to rectify such non-conformities
and is satisfied that the plan will be implemented in an
expeditious manner. If the ship is prevented from sailing, the
authorized officer shall forthwith notify the flag State
accordingly and invite a representative of the flag State to be
present, if possible, requesting the flag State to reply within
a prescribed deadline. The authorized officer shall also inform
forthwith the appropriate shipowners’ and seafarers’
organizations in the port State in which the inspection was
carried out. - 7. Each Member shall ensure that its authorized officers are
given guidance, of the kind indicated in Part B of the Code, as
to the kinds of circumstances justifying detention of a ship
under paragraph 6 of this Standard.
- 8. When implementing their responsibilities under this Standard,
each Member shall make all possible efforts to avoid a ship
being unduly detained or delayed. If a ship is found to be
unduly detained or delayed, compensation shall be paid for any
loss or damage suffered. The burden of proof in each case shall
be on the complainant.
Guideline B5.2.1 – Inspections in port
- 1. The competent authority should develop an inspection policy
for authorized officers carrying out inspections under
Regulation 5.2.1. The objective of the policy should be to
ensure consistency and to otherwise guide inspection and
enforcement activities related to the requirements of this
Convention (including seafarers’ rights). Copies of this policy
should be provided to all authorized officers and should be
available to the public and shipowners and seafarers.
- 2. When developing a policy relating to the circumstances
warranting a detention of the ship under Standard A5.2.1,
paragraph 6, of the competent authority should consider that,
with respect to the breaches referred to in Standard A5.2.1,
paragraph 6(b), the seriousness could be due to the nature of
the deficiency concerned. This would be particularly relevant in
the case of the violation of fundamental rights and principles
or seafarers’ employment and social rights under Articles III
and IV. For example, the employment of a person who is under age
should be considered as a serious breach even if there is only
one such person on board. In other cases, the number of
different defects found during a particular inspection should be
taken into account: for example, several instances of defects
relating to accommodation or food and catering which do not
threaten safety or health might be needed before they should be
considered as constituting a serious breach.
- 3. Members should cooperate with each other to the maximum
extent possible in the adoption of internationally agreed
guidelines on inspection policies, especially those relating to
the circumstances warranting the detention of a ship.
Regulation 5.2.2 – Onshore seafarer complaint-handling procedures
- 1. Each Member shall ensure that seafarers on ships calling at a
port in the Member’s territory who allege a breach of the
requirements of this Convention (including seafarers’ rights) have
the right to report such a complaint in order to facilitate a prompt
and practical means of redress.
Standard A5.2.2 – Onshore seafarer complaint-handling procedures
- 1. A complaint by a seafarer alleging a breach of the
requirements of this Convention (including seafarers’ rights)
may be reported to an authorized officer in the port at which
the seafarer’s ship has called. In such cases, the authorized
officer shall undertake an initial investigation.
- 2. Where appropriate, given the nature of the complaint, the
initial investigation shall include consideration of whether the
on-board complaint procedures provided under Regulation 5.1.5
have been explored. The authorized officer may also conduct a
more detailed inspection in accordance with Standard
A5.2.1.
- 3. The authorized officer shall, where appropriate, seek to
promote a resolution of the complaint at the ship-board
level.
- 4. In the event that the investigation or the inspection
provided under this Standard reveals a non-conformity that falls
within the scope of paragraph 6 of Standard A5.2.1, the
provisions of that paragraph shall be applied.
- 5. Where the provisions of paragraph 4 of this Standard do not
apply, and the complaint has not been resolved at the ship-board
level, the authorized officer shall forthwith notify the flag
State, seeking, within a prescribed deadline, advice and a
corrective plan of action.
- 6. Where the complaint has not been resolved following action
taken in accordance with paragraph 5 of this Standard, the port
State shall transmit a copy of the authorized officer’s report
to the Director-General. The report must be accompanied by any
reply received within the prescribed deadline from the competent
authority of the flag State. The appropriate shipowners’ and
seafarers’ organizations in the port State shall be similarly
informed. In addition, statistics and information regarding
complaints that have been resolved shall be regularly submitted
by the port State to the Director-General. Both such submissions
are provided in order that, on the basis of such action as may
be considered appropriate and expedient, a record is kept of
such information and is brought to the attention of parties,
including shipowners’ and seafarers’ organizations, which might
be interested in availing themselves of relevant recourse
procedures.
- 7. Appropriate steps shall be taken to safeguard the
confidentiality of complaints made by seafarers.
Guideline B5.2.2 – Onshore seafarer complaint-handling procedures
- 1. Where a complaint referred to in Standard A5.2.2 is dealt
with by an authorized officer, the officer should first check
whether the complaint is of a general nature which concerns all
seafarers on the ship, or a category of them, or whether it
relates only to the individual case of the seafarer
concerned.
- 2. If the complaint is of a general nature, consideration should
be given to undertaking a more detailed inspection in accordance
with Standard A5.2.1.
- 3. If the complaint relates to an individual case, an
examination of the results of any on-board complaint procedures
for the resolution of the complaint concerned should be
undertaken. If such procedures have not been explored, the
authorized officer should suggest that the complainant take
advantage of any such procedures available. There should be good
reasons for considering a complaint before any on-board
complaint procedures have been explored. These would include the
inadequacy of, or undue delay in, the internal procedures or the
complainant’s fear of reprisal for lodging a complaint.
- 4. In any investigation of a complaint, the authorized officer
should give the master, the shipowner and any other person
involved in the complaint a proper opportunity to make known
their views.
- 5. In the event that the flag State demonstrates, in response to
the notification by the port State in accordance with paragraph
5 of Standard A5.2.2, that it will handle the matter, and that
it has in place effective procedures for this purpose and has
submitted an acceptable plan of action, the authorized officer
may refrain from any further involvement with the
complaint.
Regulation 5.3 – Labour-supplying responsibilities
Purpose: To ensure that each Member implements its responsibilities under
this Convention as pertaining to seafarer recruitment and placement and the
social protection of its seafarers
- 1. Without prejudice to the principle of each Member’s responsibility
for the working and living conditions of seafarers on ships that fly its
flag, the Member also has a responsibility to ensure the implementation
of the requirements of this Convention regarding the recruitment and
placement of seafarers as well as the social security protection of
seafarers that are its nationals or are resident or are otherwise
domiciled in its territory, to the extent that such responsibility is
provided for in this Convention.
- 2. Detailed requirements for the implementation of paragraph 1 of this
Regulation are found in the Code.
- 3. Each Member shall establish an effective inspection and monitoring
system for enforcing its labour-supplying responsibilities under this
Convention.
- 4. Information about the system referred to in paragraph 3 of this
Regulation, including the method used for assessing its effectiveness,
shall be included in the Member’s reports pursuant to article 22 of the
Constitution.
Standard A5.3 – Labour-supplying responsibilities
- 1. Each Member shall enforce the requirements of this Convention
applicable to the operation and practice of seafarer recruitment and
placement services established on its territory through a system of
inspection and monitoring and legal proceedings for breaches of
licensing and other operational requirements provided for in
Standard A1.4.
Guideline B5.3 – Labour-supplying responsibilities
- 1. Private seafarer recruitment and placement services established
in the Member’s territory and securing the services of a seafarer
for a shipowner, wherever located, should be required to assume
obligations to ensure the proper fulfilment by shipowners of the
terms of their employment agreements concluded with seafarers.
