Certification of Able Seamen Convention, 1946 (No. 74) - United States of America (Ratification: 1953)

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes that in its reports sent on the application of the abovementioned maritime Conventions, the Government indicates that: (i) the President’s Committee meeting on the ILO (PC/ILO) called on the PC/ILO’s Tripartite Advisory Panel on International Labor Standards (TAPILS), in conjunction with the US Coast Guard, to expedite and complete its review of the Maritime Labour Convention, 2006 (MLC, 2006) and to report to the PC/ILO on the feasibility of ratification; (ii) the US regulations were amended to create a new Standards of Training, Certification and Watchkeeping for Seafarers (STCW) endorsement for able seafarer deck; and (iii) the US Coast Guard adopted the Navigation and Vessel Inspection Circular (NVIC) No. 02-13 on Guidance Implementing the MLC, 2006. While noting these efforts to bring the national legislation into conformity with the MLC, 2006 and assess the feasibility of its ratification, the Committee will continue to examine the conformity of national legislation with the requirements of ratified maritime Conventions. In order to provide a comprehensive view of the issues to be addressed in relation to the application of these Conventions, the Committee considers it appropriate to examine these issues in a consolidated comment, as follows.

Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147)

Article 2(a)(iii) of the Convention. Shipboard conditions of employment. Articles of agreement. The Committee requested the Government to take the necessary measures to ensure that national laws and regulations prescribe conditions that are substantially equivalent to the requirements of the Seamen’s Articles of Agreement Convention, 1926 (No. 22) concerning the assurance that the seafarer has understood the agreement as required by Article 3(4) of Convention No. 22, the mandatory inclusion of particulars in the articles of agreements, including conditions for termination and the seafarer’s entitlement to annual leave with pay as required by Article 6(3)(10) and (11) of Convention No. 22, the articulation in the national legislation of the conditions for termination or immediate discharge (Articles 10–14 of Convention No. 22), and the seafarer’s right to request and receive a separate certificate as to the quality of the seafarer’s work as required by Article 14(2) of Convention No. 22. The Committee notes that the Government reiterates in its report that it is of the opinion, through tripartite consultations, that its laws and practice are substantially equivalent to the relevant Articles of Convention No. 22.

Substantial equivalence to the requirements of Article 6(3)(10) and (11) of Convention No. 22. Mandatory inclusions. The Committee previously noted that the shipping articles of agreement prescribed by the national legislation do not include grounds for rescission or specific provisions for annual leave. The Government indicated that mariners were nonetheless granted substantially equivalent protection, through the following safeguards: the mandatory inclusion in the articles of agreement of a clause providing that mariners may present complaints on the breach of the agreement to the master, and the mariners’ meaningful access to courts to enforce their rights regarding termination and annual leave as afforded by statute, general maritime law and collective agreements. The Committee reiterates that the essential features of Convention No. 22 on which substantial equivalence would have to be established must include the provision of a document containing all the main particulars listed in Article 6(3) (paragraph 186 of the 1990 General Survey on Convention No. 147). The Committee therefore requests the Government, once again, to take the necessary measures to ensure that national laws and regulations prescribe conditions that are substantially equivalent to Article 6(3)(10) and (11) of Convention No. 22.

Substantial equivalence to the requirements of Articles 10–14 of Convention No. 22. Conditions for termination. The Committee previously noted that the national legislation (Title 46 of the United States Code (USC) §§ 10310 to 10312; and Title 46 of the Code of Federal Regulations (CFR) §§14.303, 14.307 and 14.311) did not ensure substantial equivalence with Articles 10–14 of Convention No. 22, which require the national legislation to articulate in advance and in an abstract manner the conditions for termination or immediate discharge. The Committee recalls that adequate protection of the seafarer on termination is essential to establish substantial equivalence to Convention No. 22 (paragraph 186 of the 1990 General Survey on Convention No. 147). The Committee therefore requests the Government to take the necessary measures to ensure that national laws or regulations prescribe conditions that are substantially equivalent to Articles 10–14 of Convention No. 22.

Substantial equivalence to the requirements of Article 14(2) of Convention No. 22. Certificate on quality of the work. The Committee previously noted that the national legislation did not ensure the seafarer’s right to request and receive a certificate attesting to the quality of the seafarer’s work. The Government indicated in its 2010 report that there is no disposition in the national legislation providing for a mariner to receive a certificate attesting to the quality of his work or to his having fully discharged his obligations. The Committee reiterates that, pursuant to Article 14(2) of Convention No. 22, the seafarer at all times has 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. The Committee therefore requests the Government, once again, to take the necessary measures to ensure that national laws and regulations prescribe conditions that are substantially equivalent to Article 14(2) of Convention No. 22.

Article 2(d)(i) and (ii). Adequate engagement procedures and procedures for the investigation of complaints in connection with the engagement of seafarers. The Committee notes the information provided by the Government in response to its request concerning the engagement procedures on ships registered in its territory as well as the procedures for investigating complaints arising from the engagement of seafarers on ships registered in its territory and from the engagement in its territory of national seafarers on ships registered in a foreign country.

Article 2(d)(ii). Reporting of complaints in connection with the engagement of seafarers on vessels registered in a foreign country. The Committee requested the Government to provide detailed information on the reporting of complaints in connection with the engagement in its territory of seafarers on ships registered in a foreign country to the competent authority of the country in which the ship is registered. The Committee notes the possibility for the Port State Control Officer (PSCO) to relay labour complaints to the attention of the vessel’s flag State provided for in the Coast Guard Marine Safety Manual Volume 2, section D (page D-21). In this respect, noting that the Coast Guard Marine Safety Manual does not require the PSCO to systematically relay the complaints, the Committee requests the Government to clarify how it ensures the prompt transmission of all complaints arising in connection with the engagement of seafarers on vessels registered in a foreign country to the competent authority of such country with a copy to the Director-General of the ILO, as required by Article 2(d)(ii) of the Convention.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Article 2 of the Convention. Certification of able seafarers. The Committee recalls that the Convention, together with 36 other international maritime labour Conventions, is revised by the Maritime Labour Convention, 2006 (MLC, 2006). In this respect, it draws the Government’s attention to Guideline B2.2.1 of the MLC, 2006, which essentially reproduces the definition of the term “able seaman” contained in Article 1 of the Convention. The Committee recalls, however, that in the course of the negotiations that eventually led to the adoption of the MLC, 2006, it was agreed that the responsibility for seafarers’ training and certification – except for ships’ cooks – should be transferred to the International Maritime Organization (IMO) and that the provisions of the present Convention would be eventually superseded by new mandatory provisions to be adopted under the IMO Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 (STCW). The Committee notes, in this respect, that the Manila amendments to the STCW Convention and Code, adopted in June 2010 and due to enter into force on 1 January 2012, contain in Regulation II/5 new requirements for certification of ratings as able seafarers deck. Under these new requirements, the minimum age for able seafarers deck is fixed at 18 years while the minimum sea service is, in principle, not less than 24 months, including at least six months of training and 18 months of seagoing service in the deck department. The same Regulation further provides that until 1 January 2012, a party which is also a party to Convention No. 74 may continue to issue certificates in accordance with the provisions of this Convention and, until 1 January 2017, it may continue to renew and revalidate any such certificates. Recalling that the Government continues to be bound by the provisions of this Convention until the MLC, 2006, enters into force for the United States, the Committee requests the Government to keep the Office informed of any developments regarding the process of ratification and effective implementation of the MLC, 2006.

Part V of the report form. Practical application. The Committee requests the Government to continue to provide up-to-date information on the manner in which the Convention is applied in practice, including, for instance, statistical data on the number of Merchant Mariners’ Credentials (MMC) for Able Seamen Unlimited granted during the reporting period and relevant extracts from inspection reports showing any infringements of the relevant legislation.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Government's latest report. It hopes the Government will soon conclude its review and send a reply to its previous comments which read as follows:

The Committee has noted the information supplied in reply to its last direct request. The Government indicates that, although the legislation does not specifically address their duties, certificated able seamen must be capable of performing certain given tasks; the Government also lists further duties, to perform which an individual must hold a certificate, and others for which certification is not required. The Government makes no distinction in this respect as between able seamen-unlimited (whose conditions of certification comply with the Convention) and other categories of able seamen (for whom that is not the case). It is thus apparent that individuals certificated as able seamen-limited, able seamen-special, able seamen-offshore supply vessels, able seamen-sail and able seamen-fishing industry are, in the terms of Article 1 of the Convention, "deemed to be competent to perform any duty which may be required of a member of the crew serving in the deck department (other than an officer or leading or specialist rating)"; in this respect, they therefore hold a rating which is on an equal footing with that of able seamen-unlimited, thus being covered by the Convention, and not an "intermediate rating" considered, in terms of the first part of the understanding which accompanied the United States' ratification of the Convention, to be outside its scope. The Committee notes the Government's statement that the only classification of deckhands which does not fall within "specialist rating" is that of uncertificated "ordinary seaman", but observes that this does not accord with Article 1 of the Convention, which distinguishes able seamen from leading or specialist ratings.

The Committee recalls that under 46 USC sections 7307-7311a only able seamen-unlimited fulfil the minimum requirement of 36 months' service at sea (Article 2(4) of the Convention). It therefore refers to its direct request of 1985, in which it recalled also that, under the second part of that understanding, the Convention was to apply to sea-going merchant vessels of more than 100 gross registered tons (GRT) which operate outside the inland waters of the United States as defined under 33 USC section 151. The Committee pointed out that the Convention is not applied within the terms of that understanding, since, for vessels of more than 100 and less than 1600 GRT, no able seamen serving on board are required to hold a certificate in conformity with the Convention, and, for other vessels, only 50 per cent of able seamen are so required (46 USC section 7312).

The Committee is grateful for the new clarifications provided by the Government in its report. It once again requests the Government to indicate the steps taken or proposed to bring its legislation into conformity with Article 1 of the Convention.

[The Government is asked to report in detail for the period ending 30 June 1993.]

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee has noted the information supplied in reply to its last direct request. The Government indicates that, although the legislation does not specifically address their duties, certificated able seamen must be capable of performing certain given tasks; the Government also lists further duties, to perform which an individual must hold a certificate, and others for which certification is not required. The Government makes no distinction in this respect as between able seamen-unlimited (whose conditions of certification comply with the Convention) and other categories of able seamen (for whom that is not the case). It is thus apparent that individuals certificated as able seamen-limited, able seamen-special, able seamen-offshore supply vessels, able seamen-sail and able seamen-fishing industry are, in the terms of Article 1 of the Convention, "deemed to be competent to perform any duty which may be required of a member of the crew serving in the deck department (other than an officer or leading or specialist rating)"; in this respect, they therefore hold a rating which is on an equal footing with that of able seamen-unlimited, thus being covered by the Convention, and not an "intermediate rating" considered, in terms of the first part of the understanding which accompanied the United States' ratification of the Convention, to be outside its scope. The Committee notes the Government's statement that the only classification of deckhands which does not fall within "specialist rating" is that of uncertificated "ordinary seaman", but observes that this does not accord with Article 1 of the Convention, which distinguishes able seamen from leading or specialist ratings.

The Committee recalls that under 46 USC sections 7307-7311a only able seamen-unlimited fulfil the minimum requirement of 36 months' service at sea (Article 2(4) of the Convention). It therefore refers to its direct request of 1985, in which it recalled also that, under the second part of that understanding, the Convention was to apply to sea-going merchant vessels of more than 100 gross registered tons (GRT) which operate outside the inland waters of the United States as defined under 33 USC section 151. The Committee pointed out that the Convention is not applied within the terms of that understanding, since, for vessels of more than 100 and less than 1600 GRT, no able seamen serving on board are required to hold a certificate in conformity with the Convention, and, for other vessels, only 50 per cent of able seamen are so required (46 USC section 7312).

The Committee is grateful for the new clarifications provided by the Government in its report. It once again requests the Government to indicate the steps taken or proposed to bring its legislation into conformity with Article 1 of the Convention.