Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147) - United States of America (Ratification: 1988)

The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes the information provided in the Government's report, particularly the replies to its previous comments concerning the application of Article 1(4)(b) and (c) (exclusion of "ships engaged in fishing or in whaling or in similar pursuits" and "small vessels"), and Article 2(a)(i) (standards of competency and manning), (e) (seafarers' vocational training arrangements) and (g) (official inquiries into serious maritime casualties) of the Convention. The Committee also notes the Government's indication that it is in the process of reviewing the additional issues raised in its previous direct request and that it will supply in the near future a supplementary report responding to these matters. It hopes that the Government will soon conclude its review and supply a report with full information on the following points:

1. Article 2(a) (Conventions referred to in the Appendix to Convention No. 147, but not ratified by the United States).

- Convention No. 134. The Committee notes the information provided in the Government's report on the application of Article 7 of the Convention. Please indicate whether any measures have been taken or proposed to ensure that there are laws or regulations for the appointment from among the crew of suitable persons or committees responsible, under the master, for accident prevention on board US-registered ships.

- Convention No. 73, Articles 2, 3 and 5(1). The Government indicates in its report that US law, in most instances, requires medical examinations every five years and that, in any event, maritime companies and seafarers' organizations, such as the Seafarers International Union, have policies in practice requiring annual physical exams for employment. The Government also refers to the Guidelines for Physical Examination for both original entry and retention of seafarers in the US Merchant Marine (which do not specify the frequency of medical examinations). The Committee must reiterate that the discrepancy between the requirements as to the frequency of medical examinations for seafarers in the national laws (every five years) and in the Convention (every two years for all seafarers covered by the Convention) is too wide to be considered substantially equivalent for the purposes of Convention No. 147 (see 1990 General Survey, paragraph 115). The Committee hopes that the Government will consider the matter further with a view to ensuring that national laws or regulations are closer and thus substantially equivalent to the provisions of Convention No. 73, as required by Article 2(a) of Convention No. 147.

- Convention No. 92. The Committee notes the Government's indication that it will supply as soon as possible, information on the points raised in the Committee's previous direct request under this Convention, which read as follows:

(i) Please indicate how the legislation on crew accommodation is brought to the notice of persons concerned (Article 3(2)(a)). (ii) Please indicate the provisions for adequate penalties in cases of violations of accommodation requirements; and describe how effective enforcement of accommodation requirements is ensured, including on re-registration or alteration or on receipt of a complaint (Articles 3(2)(c) and (d) and 5 - see also Article 2(f) of Convention No. 147). (iii) Please indicate what consultations take place with shipowners' and seafarers' organizations (Articles 3(2)(e) and 18).

- Convention No. 22. The Committee notes the Government's indication that it will supply, as soon as possible, information on the points raised in the Committee's previous direct request under this Convention, which read as follows:

(i) Please indicate how it is ensured that seafarers understand their agreements (Article 3, paragraph 4). (ii) Please indicate whether agreements have to include reference to the possible grounds for rescission and annual leave (Article 6, paragraph 3(10)(c) and paragraph (3)(11)). (iii) Please indicate the provisions relating to termination (Articles 9 and 10) and immediate discharge (Articles 12 and 13).

- Convention No. 87, Article 3. The Committee notes that section 504 of the Labor-Management Reporting and Disclosure Act of 1959 excludes any person who is or has been a member of the Communist Party from holding office in a labour organization and from serving as a consultant or advisor. As the Committee pointed out in its 1994 General Survey on freedom of association and collective bargaining (paragraph 119), "(l)egislation which prohibits the exercise of trade union functions solely on the grounds of political belief or affiliation is not compatible with the right of organizations to elect their representatives in full freedom". Moreover, for purposes of Convention No. 147, substantial equivalence to Convention No. 87 involves at the minimum the observance and implementation in full of the right (among other guarantees) to elect representatives in full freedom, in respect of seafarers on US-registered ships (see 1990 General Survey, paragraph 188). The Committee hopes the next report will include information on any steps taken or proposed on this matter. It also would be grateful if the Government would supply copies of important judicial decisions and decisions of the National Labor Relations Board (NLRB) concerning freedom of association and protection of the right to organize in relation to seafarers on US-registered ships.

- Convention No. 98. Please provide copies of important judicial decisions or decisions of the NLRB as to how seafarers are protected against acts of anti-union discrimination.

2. Article 2(d). The Committee notes the Government's indication that it will supply, as soon as possible, information on the points raised in the Committee's previous direct request concerning the application of this Article, which read as follows:

The Committee notes the statement in the report that it is masters of vessels who are responsible for supervising engagement; reference is also made to the general role of the NLRB in cases of grievance, and to tripartite advisory committees assisting in the application of shipping law in general. It would refer the Government to the explanations in Chapter IV of the 1990 General Survey (especially paragraphs 214 and 218) as to the requirements of the Convention.

It appears to the Committee that the supervisory role in engagement procedures attributed by the Convention to a competent authority must, in order to ensure the seafarer's protection, be discharged by a disinterested party. In this respect, it has noted that the legislation (e.g., 46 USC section 10305) refers also to the role of the shipping commissioner. It appears to the Committee that adequate procedures in terms of the Convention must be designed, in addition, to deal immediately with complaints arising in connection with an engagement. Further, where tripartite consultations are appropriate under Article 2(d), they should directly address the issue of procedures for engagement and related complaints.

The Committee would be grateful if the Government would (i) describe the role of the shipping commissioner in relation to engagement procedures; (ii) supply particulars of typical cases where complaints concerning engagement have been investigated; and (iii) indicate any tripartite consultations which have taken place specifically relating to engagement procedures. Please indicate whether the arrangements referred to cover the investigation of complaints made by US seafarers as to engagement on foreign ships in US ports; or by foreign seafarers as to engagement on such ships.

3. Article 2(f). The Committee notes the information provided as to inspection. It also notes the Government's indication that it will provide additional information in its supplementary report, on the frequency of inspections of US-registered ships conducted by the US Coast Guard. It would be grateful if the Government would supply this data and continue to provide information on the functioning of inspection of labour standards on board ship.

4. Article 3. The Committee notes the Government's indication that the Coast Guard compiles information on substandard ships and that it will provide such data in its supplementary report. Please also indicate whether any specific measures have been adopted or planned to advise US nationals of the possible problems of signing on a ship registered in a State which has not ratified the Convention.

5. Article 4. The Committee notes the Government's indication that it will supply in its supplementary report information on the Coast Guard's programme on the boarding and inspection of foreign vessels as well as on the steps intended to be taken by the Government to develop, in cooperation with the Labour Department, procedures for handling matters that lie outside the jurisdiction of the Coast Guard. Please also indicate whether any other measures have been adopted or proposed as to port state control of foreign vessels.