Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee notes the Government’s information provided in response to its previous comments concerning Article 2, subparagraphs (a) (Conventions Nos. 87 and 92; Convention No. 134, Articles 4 and 7), (b) and (d)(ii); and Article 4 of the Convention. It requests the Government to supply further information on the following points.

Article 2, subparagraph (a)

Safety standards – Conventions listed in the Appendix to Convention No. 147, but not ratified by the United States.

Convention No. 73. Medical examination. The Government states that, while current laws and regulations require examinations and evaluations by the Coast Guard every five years, the unions in the US maritime industry, which is almost completely unionized, require medical exams at a greater frequency than Convention No. 73. Article 2(a) of Convention No. 147, however, requires ratifying States to have laws or regulations laying down safety standards in relation to medical examination that are substantially equivalent to Convention No. 73 (see also paragraph 112 of the Committee’s General Survey “Labour Standards on Merchant Ships”, 1990). The requirement of substantial equivalence in Article 2(a) of Convention No. 147 may be met in respect of Convention No. 73 where there are laws or regulations providing for compulsory regular medical examinations for seafarers, preferably every two years, but certainly more frequently than every five years (see also ibid., paragraph 118). The two-year maximum validity of a medical certificate has also been laid down in Standard A1.2, paragraph 7, of the Maritime Labour Convention, 2006. Noting that the Coast Guard is examining the requirements for medical and physical examinations with the possibility that they may be updated, the Committee again requests the Government to take the necessary measures to ensure that national laws or regulations require medical examinations for seafarers to be carried out at shorter intervals, so as to ensure the substantial equivalence of US legislation to Convention No. 73 (Article 5, paragraph 1).

Other matters – Convention listed in the Appendix to Convention No. 147, but not ratified by the United States.

Convention No. 22. Articles of agreement.

Article 3, paragraph 4. Understanding of agreements. In its previous comments, the Committee requested the Government to indicate the measures taken to ensure that seafarers understand the clauses of the agreement. The Committee notes with interest that, according to the Government’s report, the master, on executing the agreement, is required to ensure that each seafarer signing “personally appeared before me … acknowledged to me that he had read or had heard read the same [agreement]; that he was by me made acquainted with the conditions thereof, and understood the same; and that, while sober, and not in a state of intoxication, he signed it freely and voluntarily …”. Since section 10305 of Title 46 of the United States Code only provides that the agreement shall be signed in the presence of the master or individual in charge, the Committee would appreciate an indication of the source of the provision cited in the report.

Article 6, paragraph 3(10)(c) and (11). Particulars of agreements. The Government indicates that, although articles of agreement prescribed by US law do not include grounds for rescission or specific provisions for annual leave, they include a clause providing that, if a seafarer considers to be aggrieved by any breach of agreement, the seafarer shall present the complaint to the master; in addition, mariners have meaningful access to courts to assert and enforce their rights afforded by statute, general maritime law and collective agreements.

To be in a position to file complaints or access courts for breach of agreement, a seafarer first needs to know precisely what his rights and obligations are. If they are not laid down in his agreement (or referred to in the agreement), he will not necessarily be aware of them and therefore, not in a position to enforce them through complaints and court procedures. These procedures, therefore, can only be the second step after cognizance of the respective rights and obligations. Thus, the essential features of Convention No. 22, on which substantial equivalence has to be established, must include the provision of a document containing all the main particulars listed in Article 6(3) (see also paragraph 118 of the Committee’s 1990 General Survey on labour standards on merchant ships). The Committee asks the Government to take the necessary measures to ensure that articles of agreement contain the following particulars: (i) if the agreement has been made for an indefinite period, the conditions which shall entitle either party to rescind it, as well as the required period of notice for rescission; and (ii) the annual leave with pay granted to the seafarer after one year’s service with the same shipping company, if such leave is provided for by national law.

Articles 9 to 13. Termination and immediate discharge. The Government states that, while US law does not include specific provisions concerning termination or immediate discharge, articles of agreement require the inclusion of regulations about conduct on-board and information on fines and other punishment for misconduct, and contain a clause providing that, if a seafarer considers to be aggrieved by any breach of agreement, the seafarer shall present the complaint to the master; moreover, national legislation addresses discharges in that the master is required to provide a seafarer with a signed certificate of discharge and a full account of his wages before paying off and discharging the seafarer.

The adequate protection of the seafarer on termination (Articles 10 to 14) is, however, an essential feature of Convention No. 22 on which substantial equivalence has to be established (see also paragraph 118 of the Committee’s 1990 General Survey on labour standards on merchant ships). The relevant Articles of Convention No. 22 require that national legislation articulate in advance and in an abstract manner the conditions for termination or immediate discharge. The provisions of the national law concerning the certificate of discharge, and the inclusion in the agreement of regulations about conduct on board or a clause on complaints for breach of agreement, do not suffice to ensure substantial equivalence of national legislation with Articles 9 to 13 of Convention No. 22. The Committee therefore requests the Government to take the necessary measures to ensure that national laws or regulations determine the circumstances of termination of agreements (Articles 9 and 10) and immediate discharge (Articles 11, 12 and 13).

Article 14, paragraph 2. Separate certificate as to the quality of the seafarer’s work. In reply to the Committee’s previous request, the Government points out that the certificates of discharge may not contain a reference about the character or ability of the seafarer. This is in line with Article 5, paragraph 2, of Convention No. 22. The report further indicates that masters of vessels keeping an official logbook are required to log a statement of the conduct, character and qualification of each seafarer of the vessel or a statement that they decline to give an opinion; the official logbook is submitted to and retained by the appropriate US Coast Guard officer in charge, Marine Inspection.

The purpose of Article 14, paragraph 2, of Convention No. 22, however, is to facilitate acquisition of further work or promotion and, therefore, it is imperative that the seafarer be able to obtain from the master a written attestation as to the quality of his work. The Committee asks the Government to indicate whether the seafarer has at all times the right to obtain from the master a separate certificate as to the quality of his work or, failing that, a certificate indicating whether he has fully discharged his obligations under the agreement.

Article 2, subparagraph (d)(i). Engagement of seafarers on ships registered in the territory of the Member. The Government indicates in its report that the Coast Guard has the statutory enforcement authority over the engagement of seafarers on US vessels, that it is the competent authority for handling engagement complaints and initiating investigations, and that such investigations follow Coast Guard-issued procedures.

Further to complaints procedures, however, each ratifying Member undertakes, in accordance with Article 2, subparagraph (d)(i), to ensure that adequate procedures exist for the engagement of seafarers on ships registered in its territory, and that these engagement procedures are subject to the overall supervision of the competent authority. The Coast Guard, while being designated by the Government as the statutory enforcement authority over the engagement of seafarers on US vessels, has ceased performing the duties of the Shipping Commissioner. The Committee therefore requests the Government to describe how the competent authority discharges the supervisory functions attributed to it by the Convention with regard to engagement.

Article 2, subparagraph (f). Flag State inspections. The Committee notes the statistical information provided by the Government in its report. It asks the Government to continue to provide information in future reports on the results of inspections of labour standards on-board ship, the number and results of investigations of complaints, and the penalties imposed.