Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147) - Peru (Ratification: 2004)

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

The Committee notes the Government’s indication, in its reports on the application of various maritime Conventions, that the Maritime Labour Convention, 2006 (MLC, 2006), is being examined within the Technical Labour Committee of the National Council for Labour and Employment Promotion. The Committee also notes the adoption, by Supreme Decree No. 015-2014-DE of 28 November 2014, of the Regulations implementing Legislative Decree No. 1147 on the strengthening of the armed forces in terms of the competencies of the National Maritime Authority – Port and Coastguard Directorate-General (DICAPI) (hereinafter Regulations implementing Legislative Decree No. 1147). The Committee also notes the information provided by the Government according to which officials of the Labour Inspection Policies Directorate-General at the Ministry of Labour and Employment Promotion (hereinafter Ministry of Labour) and of the National Labour Inspection Supervisory Authority (SUNAFIL) are drafting a “Maritime Labour Protocol” concerning inspections on board ships and forecast that the drafting process will be completed by January 2017. In order to provide an overview of matters arising in relation to the application of the maritime Conventions, the Committee considers it appropriate to examine them in a single comment, which is set out below.

The Committee observes that article 55 of the Political Constitution of Peru provides that treaties concluded by the State and still in force form part of national law. On this basis, the Committee requests the Government to confirm whether, in the absence of specific national provisions that give effect to the self-executing provisions of the Conventions, the latter provisions are directly applicable in Peru.

Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8)

Article 2(2) of the Convention. Amount of unemployment indemnity in case of shipwreck. In its previous comments, the Committee reminded the Government that the compensation mechanism of the common labour system, based on length of service, is not in conformity with the Convention, which provides for compensation based on the actual period of unemployment in the event of the loss or foundering of the ship. The Committee notes the Government’s indication that section 449(d) of the Regulations implementing Legislative Decree No. 1147 provides that the foundering of a national vessel does not exempt the shipowner from payment of compensation resulting from the loss or foundering of the ship, in accordance with the national regulations and international instruments to which Peru is party. The Committee requests the Government to indicate whether national provisions have been adopted which establish the amount of indemnity provided for in section 449 of the abovementioned Decree.

Placing of Seamen Convention, 1920 (No. 9)

Articles 1–10 of the Convention. System for the placement of seafarers. In its previous comments, the Committee noted that the Convention was applied through Supreme Decree No. 018-73/MA of 18 December 1973, establishing the Seafarers’ Placement Office, and Ministerial Decision No. 1905-73/MA/SF of 21 December 1973, issuing the regulations for the Seafarers’ Placement Office. However, the Committee notes the Government’s indications that both legislative texts have been repealed. The Committee also notes the Government’s statement that seafarers’ placement offices ceased to operate after the Regulations implementing Act No. 26610 were issued and that there are currently no public or private bodies responsible for placing seafarers in employment. The Committee therefore requests the Government to indicate the measures taken to ensure that an efficient and adequate system of offices for finding employment for seafarers without charge is organized and maintained.

Seamen’s Articles of Agreement Convention, 1926 (No. 22)

Article 3 of the Convention. Guarantees relating to the signature of articles of agreement. In its previous comment, the Committee asked the Government to indicate the manner in which guarantees relating to the signature of articles of agreement are respected, as established by the Convention. In this respect, the Government refers to the Regulations implementing Legislative Decree No. 1147. The Committee observes that although section 446 of the aforementioned Regulations guarantees the formalization before the Peruvian consul of articles of agreement concluded abroad, the said section does not establish the conditions for the signature of articles of agreement when the latter are concluded in Peru. The Committee therefore requests the Government to indicate the provisions adopted or contemplated to give effect to Article 3 of the Convention.

Article 4. Clauses on the rules of jurisdiction. The Committee notes that section 444.4 of the Regulations implementing Legislative Decree No. 1147 stipulates that the competent authority shall establish the clauses to be included in employment contracts for seafarers. However, the Committee observes the Government’s indication that no supplementary regulations have been issued regarding the clauses governing articles of agreement. The Committee recalls that, under the terms of the Convention, adequate measures must be taken to prevent articles of agreement from containing any stipulation by which the parties purport to contract in advance to depart from the ordinary rules as to jurisdiction over the agreement. The Committee therefore requests the Government to indicate the measures taken or contemplated to give effect to Article 4 of the Convention.

Article 5. Document recording service on board. The Committee notes that, under section 444.3 of the Regulations implementing Legislative Decree No. 1147, shipowners shall adopt the necessary measures to ensure that seafarers, including the ship’s master, can easily obtain on board ship clear information on the terms of their employment, in particular a copy of the employment contract, and shall provide seafarers with a document containing a record of their service on board. However, the Committee observes that the Regulations implementing Legislative Decree No. 1147 do not determine the form or the content of the record of service on board. The Committee recalls that, under the terms of the Convention, seafarers must be given a document containing a record of their service on board and that the legislation shall determine the form of the document, the particulars to be recorded and the manner under which the latter are to be entered in it. The Committee therefore requests the Government to indicate the measures taken to give effect to Article 5 of the Convention.

Article 9. Termination of an agreement for an indefinite period. In its previous comment, the Committee asked the Government to indicate the provisions that give effect to Article 9, under which an agreement for an indefinite period may be terminated by either party in any port where the vessel loads or unloads, provided that the notice specified in the agreement shall have been given in writing, which shall not be less than 24 hours. National law shall determine the exceptional circumstances in which notice even when duly given shall not terminate the agreement. The Committee notes that the Regulations implementing Legislative Decree No. 1147 do not give effect to the provisions of this Article. The Committee therefore requests the Government to indicate the provisions adopted or contemplated to give effect to Article 9 of the Convention.

Article 11. Immediate discharge. The Committee observes that the Regulations implementing Legislative Decree No. 1147 do not lay down the conditions for immediate discharge. The Committee recalls that, under the Convention, national law shall determine the circumstances in which the owner or master may immediately discharge a seafarer. The Committee therefore requests the Government to indicate the measures taken to give effect to Article 11 of the Convention.

Article 14(2). Separate certificate regarding the quality of work. In its previous comments, the Committee asked the Government to indicate how it is ensured that seafarers can obtain a separate certificate regarding the quality of their work from the ship’s master. The Committee notes the Government’s reference to the Regulations implementing Legislative Decree No. 1147. However, the Committee observes that the Regulations do not give effect to this provision of the Convention. The Committee therefore requests the Government once again to indicate the manner in which effect is given to Article 14(2) of the Convention.

Repatriation of Seamen Convention, 1926 (No. 23)

Article 3(1) and (4) of the Convention. Conditions of repatriation. In its previous comments, the Committee asked the Government to clarify the status of law and practice regarding the conditions under which Peruvian and foreign seafarers have the right to repatriation. The Committee notes the information supplied by the Government to the effect that the Regulations implementing Legislative Decree No. 1147 govern the conditions of repatriation of seafarers without distinction of nationality in accordance with this provision of the Convention.

Article 4(c). Repatriation expenses in the event of illness. In its previous comments, the Committee asked the Government to indicate how it is ensured that the expenses of repatriation are not a charge on the seafarer in the event of illness. The Committee notes with interest that section 447.1 of the Regulations implementing Legislative Decree No. 1147 prohibits the expenses of repatriation being a charge on the seafarer in the event of illness.

Article 6. Obligations of the public authority of the country in which the vessel is registered. In its previous comments, the Committee asked the Government to provide information on the instructions received by the public authority to ensure the repatriation of seafarers without distinction of nationality and to advance repatriation expenses if necessary. The Committee notes that, under section 775.2 of the Regulations implementing Legislative Decree No. 1147, the National Maritime Authority must help to enable the prompt repatriation or re-embarkation of seafarers by the shipowner further to a marine accident. The Committee also notes the Government’s indication that the analysis of the requested information is still in progress. While noting this information, the Committee requests the Government to indicate the measures taken to give full effect to Article 6 of the Convention.

Food and Catering (Ships’ Crews) Convention, 1946 (No. 68)

Article 3 of the Convention. Cooperation with organizations of shipowners and seafarers. In its previous comments, the Committee asked the Government to provide information on cooperation between the competent authority and organizations of shipowners and seafarers regarding food and catering on board ship. The Committee observes that although the Government supplies information on the coordination of activities between the authorities concerned, it does not indicate how cooperation between the competent authority and organizations of shipowners and seafarers is ensured. The Committee therefore requests the Government once again to provide information on the measures taken in this respect, in accordance with Article 3 of the Convention.

Article 11(2). Refresher courses. In its previous comments, the Committee asked the Government to provide information on refresher courses for catering staff on ships. The Committee notes the Government’s indication that training for seafarers in food and catering on ships is carried out by the shipping companies in coordination with the various maritime and other training centres that provide training in the practical aspects of cooking, food and personal hygiene, food storage, management of stocks, and protection of the environment, and safety and health in catering. The Committee notes this information.

Article 12. Collection and dissemination of information and recommendations. In its previous comments, the Committee asked the Government to indicate the measures taken to ensure that the competent authority collects and disseminates information and issues recommendations on food and catering on ships. The Committee notes the Government’s indication that the analysis of the requested information is still being completed with a view to forwarding the information to the Committee as soon as possible. The Committee requests the Government once again to provide details of the measures taken to collect and disseminate information and issue recommendations on food and catering.

Certification of Ships’ Cooks Convention, 1946 (No. 69)

Article 4(4) of the Convention. Examination for a certificate of qualification. The Committee recalls that, under the terms of the Convention, the competent authority shall prescribe the examination for the granting of a certificate of qualification as ship’s cook directly or, subject to its control, by an approved school for the training of cooks or other approved bodies. The Committee notes the Government’s indication that the training of ships’ cooks is conducted by the shipping companies in coordination with the various maritime and other training centres that provide training in the practical aspects of cooking, food and personal hygiene, food storage, management of stocks, and protection of the environment, and safety and health in catering. The Committee requests the Government to indicate the measures taken by the competent authority to give effect to Article 4(4) of the Convention and to send information especially on the organization and content of the examination for the granting of a certificate of qualification as ship’s cook.

Article 6. Recognition of certificates. In its previous comments, the Committee asked the Government to indicate whether or not provision had been made for the recognition of certificates of qualification issued by other countries. The Committee notes the Government’s indication that DICAPI recognizes foreign qualifications pursuant to section 385 of the Regulations implementing Legislative Decree No. 1147.

Medical Examination (Seafarers) Convention, 1946 (No. 73)

Article 3 of the Convention. Recognition of certificates. In its previous comments, the Committee asked the Government to provide information on the content of medical examinations for seafarers. The Committee notes with interest the adoption of Executive Decision No. 0619-2010/DCG of 13 August 2010, issuing regulations governing medical examinations for merchant navy personnel.

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

Article 2(a)(i) of the Convention. Safety standards. Substantial equivalence to Article 7 of Convention No. 134. Prevention of accidents. In its previous comments, the Committee asked the Government to provide information on the members of the crew responsible for accident prevention. The Committee notes the Government’s indication that accident prevention on board ship is the responsibility of the ship’s master, pursuant to sections 387, 400, 402, 403, 407, 408 and 409 of the Regulations implementing Legislative Decree No. 1147. The Committee notes this information.

Article 2(b) and (f). Exercise of effective jurisdiction or control by the flag State. In its previous comments, the Committee asked the Government to provide information on the control of ships flying the Peruvian flag with respect to safety on board ship, social security and conditions of employment. The Committee notes that sections 12, 14, 16, 312, 581, 603 and 642–645 of the Regulations implementing Legislative Decree No. 1147 establish a system of control over safety on board ship. The Committee also notes the Government’s indication that, under section 3 of the General Labour Inspection Act (No. 28806) the Ministry of Labour is responsible for the inspection of merchant ships, regardless of the flag they fly. The Committee notes this information.

Article 2(d)(i). Procedures for the engagement of seafarers on Peruvian ships. The Committee notes the Government’s indication that there are currently no public or private entities responsible for the placement of seafarers. The Committee recalls that, under the terms of the Convention, the Government must ensure that there are adequate procedures for the engagement of seafarers on ships registered in its territory. The Committee therefore requests the Government to indicate the measures taken in law or in practice to ensure compliance with this provision of the Convention.

Article 2(d)(ii). Procedures for the transmission of complaints concerning the engagement of seafarers on foreign ships. The Committee notes the Government’s indication that, under section 100 of the Regulations implementing Legislative Decree No. 1147, when port State officials (OSERP) detect any defects which impede the sailing of the ship, they notify the harbourmaster’s office with a view to informing the flag State administration and, where appropriate, the recognized organizations that have issued relevant certificates on behalf of the flag State. While noting this information, the Committee recalls that, under the terms of the Convention, the Government must ensure that any complaint concerning the engagement in its territory of foreign seafarers on ships registered in a foreign country is reported to the competent authority of the country in which the ship is registered, with a copy to the Director-General of the International Labour Office. The Committee therefore requests the Government to indicate the measures taken to give effect to this provision of the Convention.

Article 2(g). Publication of the report on an inquiry into a serious accident. In its previous comments, the Committee asked the Government to indicate how it is ensured that an official inquiry is held in the event of a serious maritime accident. The Committee notes the Government’s indication that the DICAPI has a department for the investigation of maritime accidents, which is responsible for holding the relevant inquiries and forwarding the information to the corresponding bodies and organizations. The Committee recalls that the requirement of publication can be satisfied when the final report is made available to the interested parties and the conclusions are announced publicly (see 1990 General Survey on labour standards on merchant ships, paragraph 258). The Committee therefore requests the Government to clarify the manner in which the conclusions of the department for the investigation of maritime accidents are published.

Article 4. Port State control. In its previous comments, the Committee asked the Government to specify whether complaints may be submitted to the port authority by professional bodies, associations or trade unions. The Committee notes the Government’s indications that any person with a legitimate interest, including trade unions and other professional bodies, may voice grievances to the port authority and file complaints through the system established at the Ministry of Labour, which is responsible for the inspection of merchant ships, irrespective of the flag they fly. The Committee notes this information.

Labour Inspection (Seafarers) Convention, 1996 (No. 178)

Article 1(7) of the Convention. Scope of inspection. In its previous comments, the Committee asked the Government to clarify the scope of inspection of seafarers’ working and living conditions. The Committee notes the drafting of the “Maritime Labour Protocol”. The Committee also notes that sections 642.1 and 642.2 of the Regulations implementing Legislative Decree No. 1147 provide that naval vessels and craft inspected by the Inspection and Audit Office of the National Maritime Authority must fulfil all conditions for ensuring the safety of human life at sea, conditions of accommodation and catering, and conditions of health and hygiene. The Committee requests the Government to indicate whether the Inspection and Audit Office investigates other aspects of seafarers’ working and living conditions such as conditions relating to minimum age, articles of agreement, recruitment, manning, qualifications, hours of work, prevention of occupational accidents, medical care, sickness and injury benefits, social welfare and related matters, and repatriation. The Committee also requests the Government to provide updated information on the drafting of the “Maritime Labour Protocol”.

Article 3(1). Periodic inspection of registered ships. In its previous comments, the Committee asked the Government to indicate whether all Peruvian-flagged vessels above 500 gross tonnage are inspected at intervals not exceeding three years, with a view to verifying that seafarers’ working and living conditions are in conformity with the national legislation. The Committee notes that the Government does not provide any information in reply to this request. However, the Committee observes that section 649 of the Regulations implementing Legislative Decree No. 1147 provides that national vessels undertaking international voyages must undergo the necessary inspections, together with the annual or periodic examination, to verify that they observe the appropriate conditions regarding accommodation, health, hygiene, prevention of occupational accidents, and food and catering. The Committee notes this information.

Article 4. Qualifications of inspectors. In its previous comments, the Committee asked the Government to indicate by what means it is ensured that inspectors responsible for verifying seafarers’ working and living conditions have appropriate qualifications to perform their duties. The Committee notes the Government’s indication that the DICAPI has a specialized department and OSERP officials perform duties in ports. However, the Committee notes the Government’s indication that it is for the Ministry of Labour to conduct inspections on board merchant ships, pursuant to section 3 of Act No. 28806. The Committee therefore requests the Government to provide information on the qualifications of inspectors of the Ministry of Labour who conduct inspections on board ship.

Article 9(1). Inspection report. In its previous comments, the Committee asked the Government to indicate by what means it is ensured that, in the case of ship inspections, one copy of the inspection report is communicated to the master of the ship and another copy is posted on the ship’s noticeboard for the information of the seafarers. The Committee notes the Government’s indication that section 45(a) and (b) of Act No. 28806 provides that when the labour inspectorate establishes non compliance with social and labour obligations, it issues an infringement report and notifies the employer to that effect. However, the Committee observes that the aforementioned provision does not ensure that the master of the inspected ship receives a copy of the infringement report or that the report is posted on the ship’s noticeboard for the information of the seafarers. The Committee therefore requests the Government once again to indicate how effect is given to Article 9(1).

Article 9(2). Submission of the inspection report pursuant to a major incident. In its previous comments, the Committee asked the Government to specify how it is ensured that, in the case of a ship inspection pursuant to a major incident, the inspection report is submitted as soon as practicable, but not later than one month, following the conclusion of the inspection. The Committee notes the Government’s indication that section 13 of Act No. 28806 provides that the investigation or verification activities of the labour inspectorate shall be carried out within the time frame indicated for each specific case, though this may not exceed 30 working days and, where necessary, authorization may be given to prolong the verification activity. The Committee therefore requests the Government once again to indicate which measures ensure that the inspection report pursuant to a major incident is submitted as quickly as possible.

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

The Committee notes the Government’s indication, in its reports on the application of various maritime Conventions, that the Maritime Labour Convention, 2006 (MLC, 2006), is being examined within the Technical Labour Committee of the National Council for Labour and Employment Promotion. The Committee also notes the adoption, by Supreme Decree No. 015-2014-DE of 28 November 2014, of the Regulations implementing Legislative Decree No. 1147 on the strengthening of the armed forces in terms of the competencies of the National Maritime Authority – Port and Coastguard Directorate-General (hereinafter Regulations implementing Legislative Decree No. 1147). The Committee also notes the information provided by the Government according to which officials of the Labour Inspection Policies Directorate-General at the Ministry of Labour and Employment Promotion (hereinafter Ministry of Labour) and of the National Labour Inspection Supervisory Authority are drafting a “Maritime Labour Protocol” concerning inspections on board ships and forecast that the drafting process will be completed by January 2017. In order to provide an overview of matters arising in relation to the application of the maritime Conventions, the Committee considers it appropriate to examine them in a single comment, which is set out below.

The Committee observes that article 55 of the Political Constitution of Peru provides that treaties concluded by the State and still in force form part of national law. The Committee requests the Government to confirm whether, on this basis, in the absence of specific national provisions that give effect to the self-executing provisions of the Conventions, the latter provisions are directly applicable in Peru.

Food and Catering (Ships’ Crews) Convention, 1946 (No. 68)

Article 7(2) of the Convention. Inspection at sea. In its previous comments, the Committee asked the Government to take measures to ensure that the results of inspections carried out at sea by the ship’s master or a specially deputed officer are recorded in writing. The Committee notes the Government’s reference to the drafting of the “Maritime Labour Protocol” which is in progress. While noting this information, the Committee requests the Government once again to take the necessary measures without delay to give effect to Article 7(2).

Article 10. Annual report. In its previous comments, the Committee asked the Government to provide information on the preparation of an annual report on food and catering on board ship. The Committee notes the Government’s indication that the analysis of the requested information is still being completed. The Committee requests the Government once again to take the necessary measures without delay to give effect to Article 10.

Certification of Ships’ Cooks Convention, 1946 (No. 69)

Article 4(2)(b) of the Convention. Minimum period of service at sea. In its previous comments, the Committee asked the Government to prescribe a minimum period of service at sea for obtaining a certificate of qualification as ship’s cook. The Committee notes the Government’s reference to sections 5(15), 374, 378 and 442 of the Regulations implementing Legislative Decree No. 1147 and Supreme Decree No. 048-90-DE/MGP of 9 October 1990 approving the Regulations concerning ships’ cooks. However, the Committee observes that the aforementioned provisions do not establish a minimum period of service at sea for obtaining a certificate of qualification as ship’s cook. The Committee therefore requests the Government once again to take the necessary measures to give effect to Article 4(2)(b).

Medical Examination (Seafarers) Convention, 1946 (No. 73)

Article 3 of the Convention. Recognition of certificates. In its previous comments, the Committee asked the Government to provide information on the content of medical examinations for seafarers. The Committee notes with interest the adoption of Executive Decision No. 0619-2010/DCG of 13 August 2010 issuing regulations governing medical examinations for merchant navy personnel.

Article 8. Further examination after refusal of a medical certificate. In its previous comments, the Committee asked the Government to provide information on the provisions that ensure that a person who has been refused a certificate may apply for a further examination by one or more independent medical referees. The Committee notes that the Government refers to sections 49 and 71 of the Occupational Safety and Health Act No. 32222, which establish the obligation for the employer to conduct occupational medical examinations before, during and after the employment relationship. However, the Committee observes that the aforementioned provisions do not guarantee the right to request a second medical examination when the first has resulted in refusal. The Committee therefore requests the Government once again to take measures without delay to give effect to Article 8.

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

Article 2(a)(i) and (iii) of the Convention. Safety standards and shipboard living arrangements. Substantial equivalence to the Accommodation of Crews Convention (Revised), 1949 (No. 92). In its previous comments, the Committee asked the Government to consider appropriate measures to ensure that the national legislation contains provisions that are substantially equivalent to those concerning safety standards and shipboard living arrangements laid down in Convention No. 92. The Committee notes the Government’s indication that although the National Maritime Authority has the competence to issue supplementary regulations concerning accommodation pursuant to section 447.2 of the Regulations implementing Legislative Decree No. 1147, it has not exercised that competence. The Committee observes that neither the Regulations nor the Code of Safety for the equipment of naval, maritime, river and lake vessels and craft, adopted by Executive Decision No. 0562-2003/DCG of 5 September 2003 (Safety Code) regulate the following matters relating to safety standards and shipboard living arrangements laid down in Convention No. 92: notification of the adoption of provisions concerning accommodation (Article 3(2)(a)), prior consultation of shipowners’ and seafarers’ organizations regarding the framing of regulations on accommodation (Article 3(2)(e)), inspections when the ship has undergone alterations (Article 5), materials used (Article 6), adequate system of heating (Article 8(1) and (6)), adequate lighting (Article 9), location of sleeping rooms (Article 10(1)), recreation spaces (Article 12), sanitary accommodation for the crew (Article 13(1), (8) and (10)), hospital accommodation on board (Article 14), and weekly inspections (Article 17). The Committee recalls that these Articles are considered substantive provisions of Convention No. 92 relating to safety and shipboard living arrangements, with which compliance is necessary in order to establish the existence of substantial equivalence (see 1990 General Survey on labour standards on merchant ships, paragraphs 120, 174 and 175). The Committee requests the Government once again to take the necessary measures to ensure that the national legislation contains provisions substantially equivalent to those concerning safety standards and shipboard living arrangements established in Convention No. 92.

Labour Inspection (Seafarers) Convention, 1996 (No. 178)

Article 3(3) of the Convention. Inspection in cases of substantial changes. The Committee recalls that it asked the Government to indicate whether, in cases of substantial changes in construction or accommodation arrangements, the ship is inspected within three months of such changes. The Committee notes with regret that the Government indicates that the process of analysis is still being completed and does not provide any information in reply to its request. However, the Committee notes that section 579 of the Regulations implementing Legislative Decree No. 1147 provides that the alteration of naval vessels and craft is governed by technical standards established to that end by the Directorate-General but does not shed any light on whether these technical standards require an inspection within three months. The Committee therefore requests the Government once again to clarify whether substantial changes in ship construction or accommodation arrangements are inspected within three months of such changes.

Article 6(2). Compensation for unreasonable detention or delay. In its previous comments, the Committee asked the Government to indicate how it is ensured that, if a ship is unreasonably detained or delayed, the shipowner or operator of the ship is entitled to compensation for any loss or damage suffered. The Committee notes with regret that the Government does not provide any information in reply to this request. The Committee therefore requests the Government once again to indicate the measures taken to give effect to this provision of the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 2(a)(i) of the Convention. Safety standards. Prevention of accidents. The Committee notes the Government’s reference to Supreme Decree No. 028-DE/MGP of 25 May 2001 on regulations on ports and activities at sea and on inland waterways, but observes that this Decree does not provide for the appointment, from amongst the crew of the ship, of a suitable person or persons or of a suitable committee, responsible under the master for accident prevention. It recalls that a similar requirement for the designation of a ship’s safety committee with the participation of seafarers’ representatives has been included in Standard A4.3(2)(d) of the Maritime Labour Convention, 2006 (MLC, 2006). The Committee therefore again requests the Government to indicate how substantial equivalence is ensured with the requirement of Article 7 of the Prevention of Accidents (Seafarers) Convention, 1970 (No. 134).

Article 2(a)(iii). Shipboard living arrangements. Crew accommodation. The Committee recalls its previous comment in which it noted that, in view of their limited content, Supreme Decree No. 028-DE/MPG and Resolution No. 562‑2003/DGG could not be considered as being substantially equivalent to the detailed provisions of the Accommodation of Crews Convention (Revised), 1949 (No. 92). It also recalls that similar requirements have been incorporated in Regulation 3.1 and the corresponding Code of the MLC, 2006. The Committee therefore requests once more the Government to consider appropriate action to ensure that national laws or regulations contain provisions substantially equivalent to the standards set out in Convention No. 92 with regard to the following crew accommodation requirements: Article 7(1) (adequate ventilation of sleeping and mess-rooms); Article 8(1) (adequate heating system); Article 9(2) (adequate lighting); Article 10(1) (situation of sleeping rooms the load line amidships or aft); Article 13 (sufficient sanitary accommodation, ventilated and with adequate soil and waste pipes); Article 14(1) (separate hospital accommodation); and Article 17 (inspection of crew accommodation by the ship’s master and crew members at least once a week).

Article 2(b). Exercise of effective jurisdiction and control. The Committee requests the Government to provide more detailed information on the manner in which the Ministry of Labour and Employment Promotion discharges its responsibility to effectively control ships flying the national flag to ensure compliance with national laws and regulations pertaining to social security, seafarers’ conditions of employment and shipboard living arrangements.

Article 2(f). Flag State inspections. The Committee notes the Government’s indication that the competent authority for exercising control over safety standards on board merchant ships is the Directorate General of Ports and Cost Guards. The Committee requests the Government to provide more detailed information on the functioning of the system of ship inspection, for example, the number and powers of inspectors, the frequency of inspections, statistics on inspection results and any action taken, and the number and nature of any complaints received.

Article 2(g). Inquiries into serious marine casualties. The Committee once more requests the Government to indicate how it is ensured that an official inquiry is held into a serious marine casualty leading to injury or loss of life that involves a ship flying the Peruvian flag – irrespective of any notification or request of the ship’s master, shipowner, agent or operator, as required by this Article of the Convention. In addition, the Committee recalls that the same requirement has been incorporated in Regulation 5.1.6(1) of the MLC, 2006.

Article 4. Port State control. Further to its previous comment, the Committee requests the Government to specify how it is ensured in law and practice that, for the purposes of exercising port State control activities, complaints may be submitted by a member of the crew, a professional body, an association or a trade union, and also that complaints other than in writing may be investigated. The Committee recalls that the same requirements have been incorporated in Standard A5.2.1(1)(d) and (4) of the MLC, 2006.

Part IV of the report form. Practical application. The Committee notes the statistical information provided by the Government concerning the number of seafarers and the number of complaints received by the Port Authority. The Committee requests the Government to continue to provide up-to-date information on the practical application of the Convention, including for instance, the number of seafarers covered by the relevant legislation, statistics on flag State and port State inspections, the number and nature of any complaints considered and the action taken, copies of any standardized inspection checklist or inspection report form and official publications.

Finally, the Committee recalls that Convention No. 147, together with 67 other international maritime labour instruments, is revised by the MLC, 2006. The Committee accordingly hopes that, when considering appropriate measures to bring the national legislation into line with Convention No. 147, the Government will also take due account of the corresponding requirements of the MLC, 2006. The Committee requests the Government to keep the Office informed of any decision taken or envisaged with respect to the early ratification and effective implementation of the MLC, 2006.

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

The Committee notes the Government’s first report. It draws the Government’s attention to the following points.

Article 1, paragraph 1, of the Convention. Seagoing ships. The national legislation classifies ships according to their zone of activity. Accordingly, seagoing ships are ships which are active in the maritime zone. The Committee requests the Government to indicate whether publicly owned ships employed for commercial purposes which are active in the maritime zone are also regarded as seagoing ships and are consequently subject to the application of the provisions of the Convention.

Article 1, paragraph 4. Small vessels. The Committee requests the Government to indicate any decisions taken by the competent authority, in consultation with the most representative organizations of shipowners and seafarers, to exclude small vessels from the scope of the Convention.

Article 2(a)(i). Safety standards. Hours of work. Peru has not ratified the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996 (No. 180). Supreme Decree No. 028-DE/MPG of 25 May 2001 does not contain provisions on this subject and the Government has not provided information in its report. The Committee therefore requests the Government to indicate the manner in which the hours of work of seafarers are regulated.

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

–      Convention No. 92. In accordance with paragraphs 120, 174 and 175 of the General Survey by the Committee of Experts on the Application of Conventions and Recommendations “Labour standards on merchant ships”, 1990, “the substantive safety standards in Convention No. 92 seem to include those requiring adequate security, protection against weather an insulation in respect of the location, means of access, structure and arrangement in relation to other spaces of crew accommodation, having regard, amongst other things, fire prevention needs (Article 6(1) and (8)); adequate ventilation of sleeping and mess-rooms (Article 7(1)); an adequate system of heating, avoiding the risk of fire or other danger (Article 8(1) and (6)); adequate lighting (Article 9(2)); the normal situation of sleeping rooms amidships or aft above the load line (Article 10(1)); sufficient sanitary accommodation, ventilated and with adequate disposal pipes (Article 13(1), (8) and (10)); an approved medicine chest and, where a crew of 15 or more is carried, separate hospital accommodation (Article 14(1) and (7)). It may be considered that in order to ‘ensure the safety of life on board ship’ further requirements should also be included. The measures laid down in Convention No. 92 to ensure the implementation of those standards are of the kind laid down also in Convention No. 147, especially the enactment of legislation on substantive questions and consultation of shipowners and seafarers in the framing and administration of them (Article 3(2)(e)); and inspection of crew accommodation by the competent authority on registration or re-registration of the ship and when a complaint is received (Article 5) and by the responsible officer and crew members at least once a week (Article 17). In addition, Convention No. 92 provides for the approval of plans in advance (Article 4), as well as detailed requirements relating to the construction, equipment, decoration and furnishing of all aspects of crew accommodation and recreation space”.

Supreme Decree No. 028-DE/MPG only contains general provisions respecting prior approval of plans of ships under construction. With regard to crew accommodation, section 13.1.1 of the resolution of the Directorate No. 562-2003/DCG of 5 September 2003 approving the Code for the Safety of Equipment for Ships and Naval, Maritime, River and Lake Vessels provides that, according to the number of the passengers and crew members, maritime ships and vessels shall provide for each berth a mattress or covering (colchoneta), a pillow, two fitted sheets, two pillow covers and, where appropriate, two blankets. Ships shall also carry a gas cooker (section 13.1.2) and a set of kitchen utensils (section 13.1.3) and each crew member shall have the right to a flat plate, a deep plate, a cup and a set of cutlery (section 13.1.4). The text provides that berths shall be clean and of appropriate dimensions to allow the crew member or passenger to “stretch out in full”. The Resolution also contains provisions on the insulation of mess rooms (in the context of fire prevention), and also provides that an emergency medicine chest shall be carried on board.

In view of their limited content, the provisions of the national legislation cannot be considered as being substantially equivalent to the provisions of Convention No. 92. The Committee therefore requests the Government to amend the national legislation so as to bring it into substantial equivalence with the provisions of this Convention, and, in particular, to provide for: detailed requirements respecting the construction, equipment, decoration and furnishing of crew accommodation; recreation spaces, as well as adequate ventilation of sleeping and mess-rooms (Article 7, paragraph 1); an adequate heating system, placed so as to avoid the risk of fire or other danger (Article 8, paragraphs 1 and 6); adequate lighting (Article 9, paragraph 2); the normal situation of sleeping rooms amidships or aft above the load line (Article 10, paragraph 1); sufficient sanitary accommodation, ventilated and with adequate soil and waste pipes (Article 13, paragraphs 1, 8 and 10); separate hospital accommodation (Article 14, paragraph 1); the requirement to consult shipowners and seafarers in the framing and administration of such legislation (Article 3, paragraph 2(e)); and inspection of crew accommodation by the responsible officer and crew members at least once a week (Article 17).

Convention No. 134. In paragraph 107 of the above General Survey, the Committee considers that one of the essential features of Article 2(a) of Convention No. 147, in relation to Convention No. 134, is the requirement that “one or more crew members should be appointed as responsible for accident prevention under Article 7”. As the national legislation does not appear to give effect to this provision, the Committee requests the Government to adopt measures for the appointment, from among the crew of the ship, of a suitable person or suitable persons or of a suitable committee responsible, under the Master, for accident prevention.

Article 2(b). Control over standards other than safety standards. The inspections enumerated in section VII of Supreme Decree No. 028-DE/MPG relate essentially to safety. The Committee consequently requests the Government to indicate the manner in which control is organized of standards other than safety standards, as enumerated in this provision of the Convention, and the authority competent for exercising such control.

Article 2(c). Living conditions and arrangements. Existence of collective agreements. In view of the absence of information in the report, the Committee requests the Government to indicate whether collective agreements on living conditions and arrangements have been concluded and, if so, requests it to provide detailed information on the measures agreed between shipowners or their organizations and seafarers’ organizations for the effective control of these agreements where the Government has no effective jurisdiction.

Article 2, subparagraph (d)(i). Application of the procedure for the investigation of complaints relating to non-military ships. The Committee requests the Government to indicate whether the single Text of the Administrative Procedure for Warships (TUPAM 15001), which establishes arrangements for the investigation of complaints by the maritime authority, is applicable to non-military ships.

Article 2, subparagraph (d)(ii). Reporting of complaints made in connection with the recruitment in Peru of seafarers on ships registered in a foreign country. The Government indicates that there is no specific procedure for the reporting of such complaints to the competent authority in the country concerned. In practice, a direct communication is forwarded to the maritime administration of the country in which the ship is registered requesting information or suitable action to resolve the problem that gave rise to the complaint. However, under the terms of the Convention, the Member is under the obligation to ensure that adequate procedures, subject to overall supervision by the competent authority, exist for the investigation of any complaint made in connection with the engagement in Peru of seafarers on ships registered in a foreign country to be “promptly reported … to the competent authority of the country in which the ship is registered, with a copy to the Director-General of the International Labour Office”. The Committee therefore requests the Government to take the necessary measures to ensure that such complaints are reported to the competent authority of the country in which the ship is registered, with a copy to the Director-General of the International Labour Office.

Article 2, subparagraph (f). Inspection services. The Government indicates that there is no specific system to verify compliance with the various provisions of the Convention. The maritime authority controls the application of all the standards in force in the maritime sector and penalizes any violations which may be detected. The Committee requests the Government to describe the inspection or other arrangements which exist to verify compliance with the various standards mentioned in this paragraph and to give details of the functioning of these arrangements (for example: size of inspection staff, numbers and results of inspections, and investigations of complaints, penalties imposed).

Article 2, subparagraph (g). Inquiries into any serious marine accidents. Section A‑030204 of Supreme Decree No. 028-DE/MPG provides that the Master, the maritime agent, the shipowner or any person concerned shall be required to notify the port authority of any accident, breakdown or death occurring on board the ship. Under the terms of section A-030205, for an inquiry to be conducted, the port authority must however have received an explicit request in the notification. In contrast, the Convention establishes the requirement that an official inquiry shall be held “into any serious marine casualty” involving ships registered in the territory of the Member and that the final report of such inquiry is to be made public. The Committee therefore requests the Government to take measures to ensure that an official inquiry is held into any serious marine casualty involving Peruvian ships, particularly those involving injury and/or loss of life, with the final report of such inquiry normally to be made public, even where a formal request to this effect has not been made in the notification of the accident made under the terms of Supreme Decree No. 028-DE/MPG.

Article 3. Advice to Peruvian seafarers engaged on board foreign ships. The Committee requests the Government to indicate the measures adopted to advise, in so far as practical, its nationals on the possible problems of signing on a ship registered in a State which has not ratified the present Convention.

Article 4, paragraph 3. Complaints. Sections A-030201 to A-030206 of Supreme Decree No. 028-DE/MPG relate to complaints. A complaint is a document by means of which the Master, the shipowner, the maritime agent, the operator of the ship or any person having a legitimate interest notifies in writing the port authority of the occurrence of an infringement of Supreme Decree No. 028‑DE/MPG or of provisions respecting nautical activities. The requirement to make a complain in writing goes beyond the provisions of the Convention, which does not define the manner in which the complaint shall be made. The Convention also provides that the complaint may be submitted by a member of the crew, a professional body, an association or a trade union, whereas the national legislation only refers to “any person having a legitimate interest”. The Committee therefore requests the Government to indicate what is meant in the national legislation by the term “any person having a legitimate interest” and, in particular, to specify whether a member of the crew, a professional body, an association or a trade union may submit a complaint. It also requests the Government to take measures to ensure that the complaint may be submitted orally or in writing.

Part III of the report form. Decisions involving questions of principle. The Committee requests the Government to state whether courts of law or other tribunals have given decisions involving questions of principles relating to the application of the Convention and, if so, requests it to supply the texts of these decisions.

Part IV of the report form and Article 4, paragraph 3. Information on the application of the Convention in practice. The Committee requests the Government to give a general appreciation of the manner in which the Convention is applied including, for instance, extracts from the reports of the authority or authorities responsible for the application of the Convention, information on the number of seafarers covered by these provisions, the number of complaints made, the measures adopted, etc.