Maritime Labour Convention, 2006 (MLC, 2006) - Marshall Islands (Ratification: 2007)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the Government’s third report on the application of the Maritime Labour Convention, 2006, as amended (MLC, 2006). It further notes that the amendments to the Code approved by the International Labour Conference in 2016 and 2018 entered into force for the Republic of the Marshal Islands (RMI) on 8 January 2019 and 26 December 2020, respectively.

Impact of the COVID-19 pandemic. The Committee refers to the observations of the International Transport Workers' Federation (ITF) and the International Chamber of Shipping (ICS), received by the Office on 1 and 26 October 2020 and 4 October 2021, alleging that ratifying states have failed to comply with certain provisions of the Convention during the COVID-19 pandemic. The Committee notes that it did not have the opportunity to examine the application of the MLC, 2006 by Marshall Islands during the peak of the pandemic. Noting with deep concern the impact that the COVID-19 pandemic had on the protection of seafarers’ rights as laid out in the Convention, the Committee refers to its general observation of 2020 and its comments in the general report of 2021 on this issue and requests the Government to ensure that any remaining restrictions are lifted in order to guarantee full compliance with the MLC, 2006.

Article II, paragraphs 1(f), 2, 3 and 7 of the Convention. Definitions and scope of application. Seafarers. National determination. 1. The Committee notes that, in reply to its previous comments, the Government indicates that the national determinations in Annex 1 of MN 2-011-33 (Rev Aug/2021) are applied on a ship-by-ship basis when an individual vessel requests a DMLC, Part I. Further categories of persons not listed in Annex 1 would only be exempted after tripartite consultations and their publication in MN 2-011-33. The Committee notes the two examples of national determinations (listed as “substantial equivalencies”) included in the examples of DMLC, part I, supplied by the Government. The Committee takes note of this information.

2.The Committee requested the Government to provide more information on the exclusion of certain categories of workers from the definition of seafarer, in particular: (i) personnel under the employ or contract of the charterer of a yacht; and (ii) ranks such as riggers, riggers foreman, offshore construction managers, surveyors, divers, technicians, medics and so forth, who are working onboard the vessel for extended periods as part of the normal working complement (see Annex 1 of MN 2-011-33). The Committee notes that the Government has not provided sufficient information in this regard. The Committee recalls the definition of seafarer contained in Article II, paragraph 1 (f) of the Convention and stresses that persons who are employed or engaged or work in any capacity onboard a ship covered by the Convention, including yachts, and in particular those who work “for extended periods as part of the normal working complement” should benefit from the protection afforded by the Convention. The Committee therefore requests the Government to adopt the necessary measures to ensure that the persons under (i) and (ii) of Annex 1 of MN 2-011-33 are considered seafarers in the legislation implementing the Convention.

3. The Committee notes that, in reply to its previous comments on the meaning of paragraph 4.4 of MN 2-011-33 (referring to “any person engaged or working in any capacity on board a ship and whose normal place of work is on board for the business of that ship who is contractually provided with social protections by either the shipowner/operator or third party that are equivalent to or are greater than those required by the MLC, 2006…”), the Government indicates that this national determination applies to offshore industrial personnel as they are not part of a vessel’s normal working complement. It further states that: (i) it considers Mobile Offshore Units (MOUs) to be installations, not ships, thus not required to be certified under the MLC, 2006; they are, however, required under RMI legislation to meet most of the Convention requirements, including providing their maritime crew with the MLC, 2006 social protection; and (ii) the above ensures that the industrial personnel working on board, who are employed by third parties (oil companies, drillers etc.) are afforded social protection equivalent or greater than that of the marine crews. Referring to its previous comments, the Committee observes that the wording itself of paragraph 4.4 of MN 2-011-33 “engaged or working in any capacity on board a ship and whose normal place of work is on board for the business of that ship” appears to include categories of persons who are seafarers for the purpose of the Convention (Article II, paragraph 1(f)) and not personnel working on other "installations".While noting the Government's explanation, the Committee requests the Government to take the necessary measures to ensure that paragraph 4.4 of MN 2-011-33, by its drafting and its implementation in practice, covers only persons excluded from the scope of application of the Convention pursuant to national determinations in line with the provisions thereof. It also requests the Government to provide examples of national determinations based on paragraph 4.4 of MN 2-011-33.

Article II, paragraphs 1(i) and 4. Definitions and scope of application. Ships. 1. Navigational area.The Committee notes that, in reply to its previous request to review the definition of “waters of the Republic” in section 902(4)(iii) of MI-107, the Government refers to the letter of informal opinion of the ILO of 7 July 2011 on the text “inland waters or waters within, or closely adjacent to, sheltered waters” (Article II(1)(i)). The Government also indicates, inter alia, that: a) the definition in paragraph 902(4)(iii) of MI-107 (“waters of the Republic”) must be read in conjunction with paragraph 902(1) of the same according to which, the Domestic Watercraft chapter (Chapter 9) “shall apply to any vessel operating exclusively within the waters of the Republic which is not duly and properly documented or registered elsewhere”; b) this system provides a registration and documentation process for small craft, such as fishing vessels, that would not otherwise be regulated, including under the MLC, 2006; and c) the Maritime Administrator is confident that the ships excluded from the application of the MLC, 2006, are only those which navigate exclusively in RMI inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply. Recalling that vessels covered by Chapter 9 of MI-107 which are excluded from the main legislation applying the Convention, include ships operating in waters extending to a 200 nautical miles exclusive economic zone, the Committee reiterates that those ships do not fall within the exclusion contained in Article II, paragraph 1(i). The Committee requests the Government to adopt the necessary measures to ensure that the protection afforded by the Convention is guaranteed to all seafarers working on board all ships within the meaning of the Convention, including those engaged in domestic commerce in waters extending to a 200 nautical miles exclusive economic zone.

2. Mobile Offshore Units. The Committee notes that, in reply to its previous comments, the Government indicates that the Administrator has adopted a substantial equivalence with respect to “units engaged in exploration, exploitation, and/or processing of sea-bed mineral resources …” (MOUs), which are considered to be “installations and not ships” (paragraph 1.4 of MN 2-011-33). Under the same paragraph, “Units flagged and certified in accordance with the RMI Mobile Offshore Unit Standards (MI-293) and/or other relevant applicable national laws and regulatory requirements where the subject matter is dealt with differently are considered to substantially meet MLC, 2006 requirements and thus are not subject to certification under the Convention in these circumstances. These units also are deemed to be substantially compliant with MLC, 2006 when underway for purposes of relocation or drydocking, and therefore are not subject to certification in these circumstances. ...” The Committee further notes that MI-293 (rev Aug/2020) provides that some MOUs may “embark upon international voyages under their own power” (section 3). Considering that the MLC, 2006 applies to all ships ordinarily engaged in commercial activities, the Committee requests the Government to clarify how the MLC, 2006 is applied to MOUs navigating in areas not excluded by the scope of the Convention.

Article III. Fundamental rights and principles. 1. Non-discrimination. The Committee notes that, in reply to its previous comments, the Government refers to Article II, paragraph 12(1) and (2) of the RMI Constitution containing generally applicable provisions on equality and non-discrimination. The Committee takes note of this information.

2. Freedom of association. Observing that the Government provides no information in reply to the points raised in its previous comments, the Committee reiterates its request.

Regulation 1.2 and Standard A1.2, paragraph 1. Medical Certificate. Examination prior to beginning work. The Committee notes that, in reply to its previous comments, the Government indicates that section 836(3)(d) of MI-107 (seafarers’ loss of certain entitlements in case of refusal to be medically examined) needs to be removed as it was previous to the entry into force of the MLC, 2006. The Committee requests the Government to confirm that such provision is not implemented in practice and to inform the Office as soon as it has been repealed.

Regulations 2.1 and 2.2 and Standards A2.1, paragraph 7, and A2.2, paragraph 7. Seafarers’ employment agreement and wages. Captivity as a result of acts of piracy or armed robbery against ships.In relation to the 2018 amendments to the Code, the Committee draws the Government’s attention to the following questions included in the revised report form for the Convention: a) do laws or regulations provide that a seafarer’s employment agreement shall continue to have effect while the seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships?; b) how are the terms piracy and armed robbery against ships defined under national legislation?(Standard A2.1, paragraph 7);and c) do laws or regulations provide that wages and other entitlements under the seafarers’ employment agreement, relevant collective bargaining agreement or applicable national laws, including the remittance of any allotments, shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death in accordance with national legislation? (Standard A2.2, paragraph 7). The Committee requests the Government to reply to the above-mentioned questions, indicating in each case the applicable national provisions.

Regulation 2.3 and Standard A2.3, paragraph 3. Hours of work and hours of rest. Normal working hours’ standard. The Committee notes that, in reply to its previous comments, the Government indicates that the normal working hours and holidays are enshrined in RMI legislation and must be addressed in the seafarers’ employment agreement (SEA). Work/rest hours and holidays are ensured by the Administrator through the MLC, 2006 inspection and certification process, annual Flag State inspections, and special marine safety inspections, which include examining seafarer rest/work hour records and SEAs. While noting the Government’s information, the Committee observes again that there is no national provision explicitly stating that the normal working hours’ standard for seafarers includes one day of rest per week and rest on public holidays (Standard A2.3, paragraph 3). It also recalls that Guideline B2.2.2, paragraph 1(b) provides that for the purpose of calculating overtime, the number of normal hours per week covered by the basic pay or wages should be prescribed by legislation, if not determined by collective agreements, but should not exceed 48 hours per week. The Committee requests the Government to take the necessary measures to ensure full conformity with Standard A2.3, paragraph 3, indicating how it has given due consideration to Guideline B2.2.2, paragraph 1(b).

Regulation 2.4 and Standard A2.4, paragraph 3. Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Possible exceptions to the prohibition to forgo paid annual leave. Maximum period of service on board.The Committee notes that, in reply to its comments in relation to paragraph 5.2 of MN 7-052-2 (circumstances in which a seafarer may serve on board a vessel for a period of 11 months or more), the Government indicates that the prohibition to forgo annual leave is clearly articulated in MN 7-052-2. Moreover, annual leave must be addressed in the SEA, which is reviewed during the inspection process. The Committee notes that under paragraph 3.2 of MN 7-052-2, seafarers have the right to be repatriated at least once in a 12-month period. According to the footnote thereto, “seafarers onboard RMI vessels are entitled to annual leave with pay for each completed month of employment. Thus, a full 12 months of service would be required to accumulate a minimum of 30 days paid annual leave”.The Committee considers that the circumstances in which a seafarer may serve on board a vessel for a period of 11 months or more pursuant paragraph 5.2(1) and (4) of MN 7-052-2 (seafarers serving a full 12 months to qualify for the minimum 30 days paid leave; and seafarers who mutually agreed in writing to extend their time on board) potentially allow all seafarers to stay on board for more than 11 months, thus constituting a broad authorization to forgo annual leave, which would defeat the purpose of Regulation 2.4. The Committee requeststhe Government to take the necessary measures to ensure that: (i) any exceptions to the prohibition of agreements to forgo the minimum annual leave are only authorized by the competent authority in exceptional circumstances, in order to guarantee the right of seafarers to enjoy a period of annual leave for the benefit of their health and well-being, and to prevent fatigue, vessel unseaworthiness and all risks related thereto; (ii) seafarers are repatriated at no cost to themselves in the circumstances specified in the Convention, with strict respect of the default 11 months maximum period of service on board derived from the provisions of the Convention (Regulation 2.5 and Regulation 2.4).

Regulation 2.5 and Standard A2.5.1, paragraphs 1-3. Repatriation. Circumstances. Prohibition of advance payment and to recover costs from seafarers.The Committee notes that, in reply to its previous comments, the Government indicates that though fundamental, the right to paid repatriation is not absolute. The Government further indicates that the Administrator: (i) has reviewed paragraph 844 of MI-107 (loss of right to repatriation) and “is satisfied that any narrow provision in the national legislation depriving seafarers of an entitlement to repatriation is limited to circumstances not disallowed under the Convention”; and (ii) believes that there is nothing in Standard A2.5.1 which prohibits additional limits to repatriation being imposed nationally where the Convention is silent. For example, Standard A2.5.1, paragraph 1, does not address cases where a seafarer engages in unjustifiable action that is either wilful and/or criminal. In this case, national legislation fills in the existing gap, as no shipowner should be required to pay to repatriate a seafarer and then try to recover repatriation costs. The Government further indicates that the RMI procedures and standard of proof for seafarer criminal offenses or unjustifiable repudiation of the Shipping Articles are found in RMI Rules for Marine Investigations (MI-260). The Administrator follows these rules, which provide for the appointment of an Investigations Review Board, when dealing with an alleged misconduct by the seafarer. While taking note of this information, the Committee recalls that Standard A2.5.1, paragraph 1, and Guideline B2.5.1, paragraph 1, define the circumstances in which seafarers are entitled to repatriation, thus repatriation should take place when one of those circumstances is met. Moreover, when “criminal offenses” and “unjustifiable repudiation of the Shipping Articles” (section 844(d) and (e) of MI-107), qualify as “serious default of seafarers’ employment obligations” under Standard A2.5.1, paragraph 3, the shipowner shall pay for repatriation in first instance and may recover the cost of repatriation from the seafarer’s wages or other entitlements, after the "seafarer has been found" in such a serious default. The Committee requests the Government to take the necessary measures to ensure full conformity with Standard A2.5.1, paragraphs 1-3 of the Convention.

Regulation 2.5 and Standard A2.5.2. Repatriation. Financial security.The Committee notes that, in reply to its previous comments, the Government refers to MN 7-052-3, Liability Insurance for Seafarers Abandonment, Death and Long-Term Disability, and to MN 2-023-1, Proof of Liability Insurance, which together with paragraph 7.52 of MI108, give application to Standard A2.5.2. The Committee takes note of this information.

Regulation 2.7 and Standard A2.7, paragraph 3. Manning levels. Food and catering. The Committee notes that in reply to its previous comments on the application of Standard A2.7, paragraph 3, the Government refers to MN 7-044-1, Accommodations, Recreational Facilities, Food, Catering and Water. It notes that section 15.7 of MN 7-044-1 mostly reproduces Standard A3.2, paragraph 5. It also takes note of the example of minimum safety manning certificate, that includes a cook for a manning of more than 10 persons. The Committee further notes that section 3 of MN 7-044-1 provides that “… RMI MSMCs [i.e. Minimum Safe Manning Certification] may not specify a manning requirement for cooks. However, where a cook or cooks are employed on board, the MLC, 2006 and the MSMC require that they must be trained and qualified as above.” While taking note of this information, the Committee observes that the national legislation does not require ships with a manning of more than 10 to carry on board a qualified ship’s cook.Referring to Standard A2.7, paragraph 3 and Standard A3.2, paragraph 5, the Committee requests the Government to adopt the necessary measures to comply with this requirement of the Convention. In addition, the Committee requests the Government to indicate how, when determining manning levels pursuant to Standard A2.7, paragraph 3, the competent authority takes into account all other requirements within Regulation 3.2 and Standard A3.2, concerning food and catering.

Regulation 3.1 and Standard A3.1, paragraph 21. Accommodation and recreational facilities. Exemptions.The Committee notes that, in reply to its previous comments, the Government indicates that the Administrator reviews all applications for a DMLC, Part I. The Government also refers to MN 2-011-33, paragraph 5 (Procedures for Shipowners to Obtain Certification), which includes the steps to be followed when exemptions are required. The Government finally indicates that the wording "The requirements … that relate to ship construction and equipment shall apply, to the extent reasonably practicable, to ships…” in MN 7-044-1 is necessary because there are vessel types (namely yachts) that are covered by the MLC, 2006, but were not adequately considered in its Title 3. The Committee requests the Government to provide examples of exemptions granted from the application of the provisions of Standard A3.1, including those concerning yachts covered by the Convention, as well as copies of the relevant DMLC, part I, where applicable.

Regulation 4.2 and Standard A4.2.1, paragraph 5. Shipowners’ liability. Possible exclusion. The Committee notes that, in reply to its previous comments, the Government indicates that the Administrator has reviewed MI-107, paragraph 836(3)(c), and considers refusing medical treatment and being denied treatment because of misconduct or default as wilful acts and as such, subcategories of paragraph 836(3)(a) of MI-107 (exclusion from benefits due to wilful act). Therefore, the Administrator considers the exception in MI-107, paragraph 836(3) as corresponding to the exclusions listed in Standard A4.2.1, paragraph 5. Referring to its comments under Standard A1.2, the Committee considers denying medical care as contrary to the fundamental right of seafarers to health protection and medical care, as enshrined in Article IV of the Convention and Regulation 4.1. The Committee requests the Government to take the necessary measures to bring paragraph 836(3) of MI-107 infull conformity with Standard A4.2.1, paragraph 5.

Regulation 4.2, Standard A4.2.1, paragraphs 8 to 14, and Standard A4.2.2. Shipowners’ liability. Financial security. The Committee notes that, in reply to its previous request, the Government refers to MN 7-052-3, Liability Insurance for seafarer Abandonment, Death and Long-Term Disability and MN 2-023-1, Proof of Liability Insurance. While observing that MN 7-052-3 mostly gives application to Standard A4.2.1, paragraphs 8-14 and to Standard A4.2.2, the Committee notes paragraph 2.1 of MN 7-052-3 which provides for certificates of financial security to be carried on board by RMI-flagged vessels that are required to be MLC, 2006 certified or have opted for voluntary certification under MLC, 2006. The Committee recalls that Standard A4.2.1, paragraph 11 (certificate to be carried on board) applies to all ships covered by the Convention. It requests the Government to take the necessary measures to ensure that all RMI-flagged ships covered by the Convention carry on board documentary evidence of financial security as required under Standard A4.2.1, paragraph 11. It also requests the Government to provide information on the application of Standards A4.2.1, paragraph 8(c) and A4.2.2, paragraph 3.

Regulation 4.4 and Standard A4.4, paragraph 2. Development of shore-based welfare facilities in appropriate ports. Noting the Government's information in its previous reports that there are no shore-based seafarer welfare facilities operating in RMI, the Committee requests the Government to provide information on plans for the development of those facilities in appropriate ports, as determined after consultations with shipowners' and seafarers' organizations concerned.

Regulation 4.5 and Standard A4.5, paragraphs 1-3. Social security. Branches. Protection for seafarers ordinarily resident in its territory. The Committee notes that, in reply to its previous comments on social security coverage in the branches specified, the Government refers to MG 7-045-1, item 10, which implements MI-107 and MI-108. The Committee notes that item 10 of MG 7-045-1 relates to shipowners’ liability (Regulations 2.6 and 4.2) and does not give application to Regulation 4.5. In this regard, the Committee recalls that while Regulations 2.6 and 4.2 concern a short-term shipowner’s obligation covering all seafarers working on board ships flying the Member’s flag, Regulation 4.5 provides for a long-term coverage for all seafarers ordinarily resident in the Member’s territory (Standard A4.5, paragraph 3). The Committee requests the Government to take the necessary measures to ensure that seafarers ordinarily resident in its territory and their dependents are covered by social security protection in the branches of medical care, sickness benefit, unemployment benefit, employment injury benefit and survivor’s benefit, and that the resulting protection is no less favourable than that enjoyed by shoreworkers resident in the RMI territory. It requests the Government to provide information regarding the benefits enjoyed by seafarers in the five branches specified.

The Committee notes that, in reply to its previous comments, the Government indicates that there are currently no steps in place to extend protections to family benefit or maternity benefit. The Committee takes note of this information.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Flag State responsibilities. Declaration of Maritime Labour Compliance. Content.The Committee notes that, in reply to its previous comments, the Government indicates that the Administrator has once again reviewed the DMLC, Part I, and does not intend to expand the information beyond what is currently referenced. The reason for this is that the shipowner should refer to and read the requirements fully as set out in RMI law and regulations and not rely on summarized information. While noting the Government's explanation, the Committee reiterates the importance of including in the DMLC, Part I, when the relevant legislation is cited without mentioning its content, concise information on the main content of the national requirements, as required under Standard A5.1.3, paragraph 10, in order to help the concerned authorities to identify effectively the national requirements implementing the Convention. The Committee again requests the Government to take the necessary measures to amend the DMLC, Part I, to ensure full conformity with Standard A5.1.3, paragraph 10(a).

[The Government is asked to reply in full to the present comments in 2025.]

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the Government’s second report. The Committee notes that the amendments to the Code approved by the International Labour Conference in 2014, introducing the new Standard A2.5.2 and replacing Standard A4.2 by Standards A4.2.1 and A4.2.2, entered into force for the Republic of the Marshall Islands on 18 January 2017. It further notes that the Government’s report was received before the entry into force of these amendments. It notes that the national legislation and regulations implementing the Convention have been revised, in particular with a view to taking into account the entry into force of the abovementioned amendments. Based on its second review of the information and documents available, the Committee draws the Government’s attention to the following issues. If considered necessary, the Committee may come back to other matters at a later stage.

Article II of the Convention. Scope of application. The Committee notes that the Maritime Act, 1990, as amended (MI-107), provides for two registration regimes for ships. According to section 204 of this Act, any vessel engaged solely in domestic commerce shall not be documented under the provisions of Chapter 2 (Documentation and identification of vessels). Vessels operated exclusively within the waters of the Republic shall be documented under the provisions of Chapter 9 (Domestic watercraft). According to the definition of “waters of the Republic” contained in section 902(4)(iii) of MI-107, “Waters of the Republic” shall mean the “Internal Waters, Territorial Waters, and Exclusive Economic Zone”. The Committee notes that section 904(2) of MI-107 provides that the Minister shall prepare for the approval of the Cabinet Rules and Regulations necessary and proper to implement the numbering and documentation of domestic watercraft; ensure their safety and fitness; the safeguarding of the environment and the prevention of marine pollution by domestic watercraft; the certification and training of their crews; the formulation and enforcement of standards and rules for their crews and equipment; the supervision and maintenance of adequate safety and sanitary conditions on board; and other matters as may be required for the effective administration of this Chapter. The Committee therefore understands that, in principle, the main legislation applying the Convention, in particular Chapter 8 (Merchant seafarers) of MI-107 and its implementing regulations which apply to vessels registered under Chapter 2, does not apply to vessels under Chapter 9. Since the Convention defines a ship in Article II, paragraph 1(i), as “a ship other than one which navigates exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply”, the Committee considers that vessels which are operating in waters extending to a 200 nautical miles exclusive economic zone do not fall within the exclusion contained in this provision of the Convention. The Committee therefore requests the Government to review the definition of “waters of the Republic” in section 902(4)(iii) of the Maritime Act, 1990 (MI-107), in order to ensure that it excludes from the application of the Convention only ships which navigate exclusively in inland waters or waters within, or closely adjacent to, sheltered waters or areas where port regulations apply.

Article II, paragraphs 1(f), 2, 3 and 7. Scope of application. Seafarers. The Committee notes that Annex 1 of Marine Notice 2-011-33 (Rev. Dec/2016) contains the national determinations adopted by the Administrator. It also notes that paragraph 4.5 indicates that determinations would be made on a ship-by-ship basis and that the shipowners seeking exclusions must request the Administrator to consider such exclusions prior to issuance of the Declaration of Maritime Labour Compliance (DMLC) Part I. The Committee requests the Government to clarify whether any “ship-by-ship” exclusion is adopted within the framework of the determinations contained in Annex 1 of MN 2-011-33 or if other categories of persons, not listed in Annex 1, can also be excluded. It further requests the Government to provide examples of determinations made on the basis of this Marine Notice.

Moreover, the Committee notes that, according to the determinations contained in Annex 1, the following categories of persons among others are not considered seafarers: (i) personnel under the employ or contract of the charterer of a yacht; and (ii) ranks such as riggers, riggers foreman, offshore construction managers, surveyors, divers, technicians, medics and so forth, who are working onboard the vessel for extended periods as part of the normal working complement. The Committee requests the Government to explain on what basis it took the decision to exclude those categories of workers from the definition of seafarer, taking into account the definition contained in the Convention as well as the content of Resolution VII concerning information on occupational groups adopted by the International Labour Conference at its 94th (Maritime) Session.

In addition, the Committee notes that paragraph 4.4 of MN 2-011-33 states that in accordance with Resolution VII, the Administrator considers that any person engaged or working in any capacity on board a ship and whose normal place of work is on board for the business of that ship who is contractually provided with social protections by either the shipowner/operator or third party that are equivalent to or are greater than those required by the Convention has been provided with social protections that substantially meet the Convention requirements. In all cases, the burden of proof shall rest with the shipowner/operator who shall show through documentation during the inspection process that these requirements have been met. The Committee requests the Government to clarify the meaning of this provision, and, in particular, whether it is intended that the category of persons concerned would not be considered seafarers and would not be covered by the Convention.

Article III. Fundamental rights and principles. Taking into account that the Republic of the Marshall Islands has not ratified all of the ILO fundamental Conventions and thereby is not subject to supervision in respect of these fundamental Conventions, the Committee recalls that it expects to receive concrete information on how the country has satisfied itself that its laws and regulations respect, in the context of the Convention, the fundamental rights referred to in Article III. The Committee notes the information provided by the Government in this respect. Concerning the right to freedom of association and collective bargaining, the Committee notes that, while sections 854–857 of MI 107 recognize the freedom of association of seafarers and their employers, as well as their right to bargain collectively, no specific provision addresses the protection against acts of anti-union discrimination. Moreover, with regard to the elimination of discrimination in respect of employment and occupation, it notes that section 858, which prohibits discrimination as to terms and conditions of employment of seafarers, only provides for certain grounds (race, colour, gender or creed). The Committee therefore requests the Government to provide more information regarding: (i) the protection against acts of anti-union discrimination; and (ii) the elimination of any discrimination in respect of employment and occupation made on the basis of political opinion, national extraction or social origin.

The Committee also notes that section 860(1)(a) of MI-107 provides that it shall be unlawful for any person or labour organization to promote or to engage in any strike or picketing, or any boycott or like interference with the internal order or operation of a vessel, unless the procedures of conciliation, mediation and arbitration under section 861 have been followed to conclusion. Section 861(2)(c) provides that, in the event that a dispute cannot be resolved by conciliation or mediation, either party may submit the matter to an independent arbitrator or arbitrators for a final determination, as provided by regulation, and that if the parties cannot agree upon a choice of arbitrator or arbitrators, the matter shall be finally determined by the Maritime Administrator or his appointed agent, acting as sole arbitrator. Section 861(3) adds that any arbitration award may be enforced, if necessary, by any court of competent jurisdiction. The Committee notes that these sections provide for compulsory arbitration as a prerequisite to engaging in industrial action, which may eventually impede the exercise of the right to take industrial action. The Committee requests the Government to indicate how it has satisfied itself that these provisions respect the fundamental right to freedom of association.

Article VI, paragraphs 3 and 4. Substantial equivalence. The Committee notes that, in reply to its previous comments, the Government indicates in its report that the Administrator has adopted a number of substantial equivalences related to the requirements in Part A of the Code in Titles 1–4, and that any such substantial equivalencies are indicated on individual DMLC Part I and not on the model form. The Committee notes that it is not clear from the information provided by the Government how many, and on what matters substantial equivalences have been adopted under Article VI. It recalls that the concept of substantial equivalence is not a matter for administrative discretion but is a matter to be decided by a Member that must first make sure, in accordance with paragraphs 3 and 4 of Article VI, that it is not in a position to implement the rights and principles in the manner set out in Part A of the Code of the Convention. The Committee recalls that explanations are required where a national implementing measure differs from the requirements of Part A of the Code. In particular, the Committee needs information on the reason why the Member was not in a position to implement the requirement in Part A of the Code, as well as (unless obvious) on the reason why the Member was satisfied that the substantial equivalence met the criteria set out in paragraph 4 of Article VI. The Committee requests the Government to provide detailed information with respect to the substantial equivalence(s) it has adopted.

Regulation 1.2 and Standard A1.2, paragraph 1. Medical examination prior to beginning work. The Committee notes that section 836(3)(d) of MI-107 refers to seafarers’ loss of certain entitlements if at the time of their engagement they refused to be medically examined. The Committee understands that there may be cases where a seafarer may be engaged despite the absence of a medical examination although Standard A1.2, paragraph 1, does not allow for exceptions to the requirement of medical certification prior to beginning work on a ship. The Committee therefore requests the Government to clarify the meaning and application of this provision in light of Standard A1.2, paragraph 1.

Regulation 2.3 and Standard A2.3, paragraph 3. Seafarers’ normal working hours. The Committee notes that, according to section 7.51(1)(c) and (5)(a)(1) of MI-108, the normal hours of work in port and at sea shall mean eight per day. It further notes that no other provision in the relevant legislation refers to weekly rest and rest on public holidays. It recalls that Standard A2.3, paragraph 3, provides that each Member acknowledges that the normal working hours standard for seafarers, like that for other workers, shall be based on an eight-hour day with one day of rest per week and rest on public holidays. The Committee requests the Government to indicate how it is ensured that the normal working hours standards for seafarers include one day of rest per week and rest on public holidays, as required by this provision of the Convention.

Regulation 2.4 and Standard A2.4, paragraph 3. Regulation 2.5 and Standard A2.5.1, paragraph 2(b). Possible exceptions to the prohibition to forgo paid annual leave. Maximum period of service on board. The Committee notes that section 5.2 of Marine Notice No. 7 052-2 (MN 7-052-2) enumerates the limited circumstances in which the Administrator has determined that a seafarer may serve on board a vessel for a period of 11 months or more. These circumstances include: (i) seafarers serving a full 12 months to qualify for the minimum 30 days paid leave; and (ii) seafarers who have mutually agreed in writing to extend their time on board. The Committee recalls that it considers, from the combined reading of Standard A2.4, paragraph 3, on annual leave and Standard A2.5, paragraph 2(b), on repatriation, that the maximum continuous period of shipboard service without leave is 11 months. The Committee further recalls that Standard A2.4, paragraph 3, provides that any agreement to forgo minimum annual leave with pay shall be prohibited, except in cases provided for by the competent authority. The Committee considers that this provision needs to be understood in a restrictive manner. In contrast, to read in this Standard a broad authorization to forgo annual leave for cash compensation or otherwise, would defeat the purpose of Regulation 2.4, which is to ensure that seafarers have adequate leave. In this context, the Committee considers that the exception provided in section 5.2 of MN 7-052-2, which has a very broad scope, would not be compatible with the Convention. Recalling the fundamental importance of paid annual leave to protect the health and well-being of seafarers and to prevent fatigue, the Committee requests the Government to indicate the measures taken to ensure that any agreement to forgo the minimum annual leave is prohibited, unless in specific cases, restrictively provided for by the competent authority.

Regulation 2.5 and Standard A2.5.1, paragraphs 1 and 2. Entitlement to repatriation. The Committee notes that section 844 of MI-107 provides that a seafarer shall forfeit his right of repatriation in case of: (a) desertion; (b) entering into a new agreement with the same owner after his discharge; (c) entering into a new agreement with another owner within one week after his discharge; (d) criminal offences under sections 847 (barratry; drunkenness; neglect of duty), 849 (incitement of seafarer to revolt or mutiny), and 850 (revolt or mutiny) of this Act; (e) unjustifiable repudiation of the Shipping Articles; or (f) failure of the seafarer to request repatriation within one week from the time that he is in condition to be repatriated. Paragraph 5.0 of MN 7-052-1 (Repatriation) contains the same provisions. The Committee notes that the Convention does not provide for cases of forfeiture of the entitlement to repatriation when the circumstances foreseen in Standard A2.5.1, paragraph 1, are met. The only case where this entitlement may lapse is where the seafarers concerned do not claim it within a reasonable period of time, in accordance with Guideline B2.5.1, paragraph 8, and as provided for under paragraph (f) above. Stressing the fundamental importance of the right to repatriation, the Committee requests the Government to ensure that any provision in the national legislation depriving seafarers of this right is limited to the circumstances allowed under the Convention (for example, minimum periods of service). It therefore requests the Government to review section 844 of MI-107 and paragraph 5.0 of MN 7 052-1 to ensure conformity with the Convention. With regard to the cases foreseen in paragraphs (d) and (e) of section 844 of MI-107, while recalling the possibility provided by Standard A2.5.1, paragraph 3, to recover the cost of the repatriation from the seafarer, the Committee underlines that it is conditioned to a finding of serious default of the seafarer’s employment obligations, in accordance with national laws or regulations or other measures of applicable collective bargaining agreements. In this regard, the Committee draws the Government’s attention to the fact that, while the shipowner may recover the cost of the repatriation under the limited circumstances mentioned above, this situation does not release the shipowner from the obligation to pay for the repatriation in the first instance. In light of the above, the Committee requests the Government to indicate how it ensures that shipowners pay for the repatriation of seafarers in all cases when seafarers are entitled to this right. The Committee further requests the Government to provide information on provisions in national laws or regulations or other measures or applicable collective agreements setting out the procedure to be followed and the standard of proof to be applied before a seafarer can be found to be liable of criminal offences or unjustifiable repudiation of the Shipping Articles.

Regulation 2.5 and Standard A2.5.2. Financial security in the event of abandonment. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that, pursuant to Standard A2.5.2, the Government shall ensure the provision of an expeditious and effective financial security system to assist seafarers in case of their abandonment. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) does national legislation require the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment? (if yes, specify if the financial security system was determined after consultation with the shipowners’ and seafarers’ organizations concerned); (b) has your country received requests to facilitate repatriation of a seafarer and, if yes, how did your country respond?; (c) what are the circumstances under which a seafarer is considered abandoned according to national legislation?; (d) does national legislation provide that ships that need to be certified according to Regulation 5.1.3 must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence must contain the information required by Appendix A2-I and has to be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (e) does national legislation require that the financial security system is sufficient to cover outstanding wages and other entitlements, all expenses incurred by the seafarer (including the cost of repatriation), and the essential needs of the seafarers, as defined in Standard A2.5.2, paragraph 9?; and (f) does national legislation provide for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A2-I of the Convention (Standard A2.5.2, paragraph 7).

Regulation 2.7 and the Code. Manning levels. The Committee notes the information provided by the Government concerning its manning requirements. It notes, in this respect, that the requirements on manning composition do not take into account the ship’s cook or catering staff. It recalls that, under Standard A2.7, paragraph 3, the competent authority must take into account all the requirements within Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee requests the Government to explain how it implements this provision of the Convention.

Regulation 3.1, paragraph 2 and Standard A3.1. Ship construction and equipment. Ships constructed on or after entry into force of the Convention for the Marshall Islands. The Committee notes that, according to MN 7 044-1 (Accommodations, recreation facilities, food, catering and water), the requirements of that Marine Notice that relate to ship construction and equipment shall apply, to the extent reasonably practicable, to ships constructed on or after 20 August 2013. The Committee notes that the inclusion of the words “to the extent reasonably practicable” introduces possible limitations to the application of the Marine Notice to ships constructed on or after the entry into force of the Convention. In this respect, the Committee recalls that Standard A3.1, paragraph 21, provides that any exemptions with respect to the requirements of Standard A3.1 may be made only where they are expressly permitted in this Standard and only for particular circumstances in which such exemptions can be clearly justified on strong grounds and subject to protecting the seafarers’ health and safety. The Committee requests the Government to indicate how it ensures that any exemptions granted in application of MN 7-044-1 are limited to those permitted in Standard A3.1.

Regulation 4.2 and Standard A4.2.1, paragraphs 1(a), 1(c) and 5. Possible exclusion of the shipowner’s liability. The Committee notes that section 836(3)(c) of MI-107 provides for an exception to seafarers’ entitlement to the corresponding benefits in cases of sickness or injury when the seafarer refuses medical treatment for such sickness or injury or is denied such treatment because of wilful misconduct or default. The Committee notes that, as a consequence to this exception, shipowners would not be liable to bear costs in such cases. Since this exception does not correspond to a possible exclusion of the shipowner’s liability in Standard A4.2.1, paragraph 5, the Committee requests the Government to review section 836(3)(c) of MI-107 in order to give full effect to Standard A4.2.1, paragraph 1(a) and (c).

Regulation 4.2 and Standard A4.2.1 and A4.2.2. Shipowners’ liability. Financial security in the event of death or long-term disability. In relation to the 2014 amendments to the Code of the Convention, the Committee recalls that pursuant to Standards A4.2.1 and A4.2.2, national laws and regulations shall provide that the financial security system to assure compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard meet certain minimum requirements. The Committee brings the Government’s attention to the following questions included in the revised report form for the Convention: (a) what is the form taken by the system of financial security and was it determined after consultation with the shipowners’ and seafarers’ organizations concerned?; (b) how national laws and regulations ensure that the system of financial security meets the following minimum requirements: (i) payment of compensation in full and without delay, (ii) no pressure to accept payment less than the contractual amount, (iii) interim payments (while situation is being assessed) to avoid undue hardship, (iv) offsetting payment against any damages resulting from any other claim made by the seafarer against the shipowner and arising from the same incident, and (v) persons who can bring the claim for contractual compensation (seafarer, her/his next of kin, representative or designated beneficiary)?; (c) does national legislation provide that ships must carry on board a certificate or other documentary evidence of financial security issued by the financial security provider? (if yes, specify if the certificate or other documentary evidence has to contain the information required in Appendix A4-I, be in English or accompanied by an English translation, and if a copy must be posted in a conspicuous place on board); (d) does national legislation provide: (i) for at least 30 days of notice by the financial security provider to the competent authority of the flag State before the financial security can cease, (ii) that the competent authority is notified by the financial security provider if a shipowner’s financial security is cancelled or terminated, and (iii) that seafarers receive prior notification if a shipowner’s financial security is to be cancelled or terminated?; and (e) how does national legislation ensure that effective arrangements are in place to receive, deal with and impartially settle contractual claims relating to compensation in the event of the death or long-term disability of seafarers due to an occupational injury, illness or hazard, through expeditious and fair procedures? The Committee requests the Government to reply to the abovementioned questions, indicating in each case the applicable national provisions. The Committee also requests the Government to provide a copy of a model certificate or other documentary evidence of financial security containing the information required in Appendix A4-I of the Convention (Standard A4.2.1, paragraph 14).

Regulation 4.5 and Standard A4.5, paragraphs 3 and 6. Social security benefits. The Committee notes the Government’s reference under Regulation 4.5 to the legislative provisions of MI-107 and MI-108 which relate to shipowners’ liability and are therefore relevant to the application of Regulation 4.2. The Committee recalls that unlike the social protection provided under Regulation 4.2, social security under Regulation 4.5 refers to benefits provided under schemes generally operated by a State, with primary responsibility being placed in the Convention on the State of residence (Standard A4.5, paragraph 3). The Committee notes that the Government also refers to provisions of the Marshall Islands Social Security Act of 1990 and indicates that resident seafarers are provided with social security protection under this Act, as follows: section 136 – old age insurance benefits; section 137 – disability insurance benefit; section 138 – surviving spouses insurance and parent’s benefit; and section 139 – the surviving child’s insurance benefit. The Committee notes that the list of such benefits does not correspond to the list of branches specified by the Government at the time of ratification (medical care; sickness benefit; unemployment benefit; employment injury benefit and survivors’ benefit). The Committee also recalls that, although the primary obligation rests with the Member in which the seafarer is ordinarily resident, Members also have an obligation under Standard A4.5, paragraph 6, to give consideration to the various ways in which comparable benefits will, in accordance with national law and practice, be provided to seafarers in the absence of adequate coverage in the nine branches of social security. The Committee requests the Government to indicate how effect is given to the obligations under Standard A4.5 in relation to medical care, sickness benefit, unemployment benefit and employment injury benefit.

Regulation 4.5, paragraph 2 and the Code. Branches of social security. The Committee recalls that Regulation 4.5, paragraph 2, provides that each Member undertakes to take steps, according to its national circumstances, individually and through international cooperation, to achieve progressively comprehensive social security protection for seafarers. The Committee requests the Government to provide information on steps taken to extend protection to all the branches listed in Standard A4.5, paragraph 1.

Regulation 5.1.3 and Standard A5.1.3, paragraph 10. Content of the DMLC, Part I. The Committee notes that the revised model form of the DMLC Part I contains information on items 15 and 16, which have been introduced following the entry into force of the 2014 Amendments. It notes however, that the information provided under other items has not been amended even though, in its previous comment, the Committee had requested the Government to amend the DMLC Part I, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention but that it also provides, to the extent necessary, concise information on the main content of the national requirements, as required under Standard A5.1.3, paragraph 10. For example, regarding minimum age (Regulation 1.1), the DMLC Part I makes reference to “Maritime Act, 1990, as amended (MI-107) §826 – Minimum age at sea” without specifying what is the minimum age retained for seafarers. The Committee requests the Government, once again, to review the DMLC Part I to fully implement Standard A5.1.3, paragraph 10.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

General questions on application. Implementing measures. Declaration of Maritime Labour Compliance, Parts I and II. The Committee notes the Government’s first report on the application of the Maritime Labour Convention, 2006 (MLC, 2006). The Committee notes, in this respect, the Government’s indication that it has a dedicated maritime website containing the national legislation and other instruments (which it also lists in its report) implementing the Convention, including the Republic of the Marshall Islands Maritime Act, 1990 (MI-107), the Republic of the Marshall Islands Maritime Regulations, (Rev. 8/14) (MI-108), various marine notices (MN) and marine guidelines (MG). The Committee understands that their MN, which are subject to revision, are a form of regulatory action taken by the competent authority under the relevant legislation and are regarded as having the force of law. The Committee notes that the Government also provided a copy of the Declaration of Maritime Labour Compliance (DMLC) Part I and an example of an approved DMLC Part II and a Maritime Labour Certificate. The Committee also notes that, on many matters, the Government refers to the DMLC Parts I and II as providing sufficient information on national implementation. In that respect, the Committee observes that, while the DMLC Part I that was submitted sets out national information in connection with some matters, it mainly contains reference to the implementing legislation or MN or MG. For example, in connection with seafarers’ employment agreements, the DMLC Part I provides the following information “Maritime Act, 1990, as amended (MI-107) §830 – Grounds for discharge, Maritime Act, 1990, as amended (MI-107) §853 – Contracts for seafaring labor, Maritime Regulations (MI-108) §7.45.1 – Seafarer Employment Agreements. Maritime Regulations (MI-108) §7.45”.

The Committee recalls that paragraph 10(a) of Standard A5.1.3 provides that the DMLC Part I drawn up by the competent authority shall not only “identify the national requirements embodying the relevant provisions of this Convention by providing a reference to the relevant national legal provisions” but also provide, “to the extent necessary, concise information on the main content of the national requirements”. The Committee also recalls that paragraph 1 of Guideline B5.1.3 provides guidance with respect to the statement of national requirements including recommending that “where national legislation precisely follows the requirement stated in this Convention, a reference may be all that is necessary”. However, in many cases, a reference will not provide enough information on national requirements where they relate to matters for which the Convention envisages some differences in national practices.

Similarly, the Committee notes that the example of an approved DMLC Part II, which is intended to identify the measures adopted by shipowners to implement the national requirements, also mainly contains references to other documents. For example, in connection with hours of rest, it states that: “(Regulation 2.3) IMS chapter reference: 11.32.00 – Detail hours of rest and working hours requirements”.

Unless all of these referenced documents are carried on board ship and easily accessible to all concerned, the Committee notes that it would be difficult for port State control officers or seafarers to understand what the national requirements are on these matters. The Committee considers that the DMLC Part I does not appear to fulfil the purpose for which it, along with the DMLC Part II, is required under the Convention which is to help all persons concerned, such as flag State inspectors, authorized officers in port States and seafarers, to check that the national requirements on the 14 listed matters are being properly implemented on board ship.

The Committee requests the Government to consider amending the DMLC Part I to better implement paragraph 10 of Regulation 5.1.3 giving due consideration to Guideline B5.1.3, so as to ensure not only that it provides a reference to the relevant national legal provisions embodying the relevant provisions of the Convention but that it also provides, to the extent necessary, concise information on the main content of the national requirements. It also suggests that the Government instruct its inspectors to review DMLC Part IIs to ensure that they provide more information on the ways in which the national requirements are to be implemented between inspections.

General questions on application. Scope of application. Article II, paragraphs 1(f) and (i), 3 and 5. Article VI, paragraphs 3 and 4. Seafarers and ships. Substantial equivalence. The Committee notes the Government’s information concerning the framework for tripartite consultations with the shipowners’ and seafarers’ organizations concerned. In this connection, the Committee notes that the Government has recognized the RMI Harbor Pilots Association as the social partner to represent seafarers where tripartite dialogue is necessary on ILO maritime issues. The Government also indicates that the employer/shipowner counterpart on ILO issues is the RMI Vessel Owners’ ILO Committee, an independent group of employers (shipowners, operators, managers, etc.). Finally, the Government indicates that, where cases of doubt existed as to whether any categories of persons or ships are to fall under the scope of the Convention, the competent authority (the “Administrator”) entered into consultation with its tripartite partners requesting them to consider ILO resolution VII (Information on Occupational Groups) in their deliberations. The Government specifies that the results of these deliberations are set out in MN No. 2-011-33 (Rev. 8/14) (entitled Maritime Labour Convention, 2006 Inspection and Certification Program), as Administrator determinations. It further indicates that there was full consensus and all social partners were in agreement with the final determinations.

The Committee takes due note of the Government’s explanation concerning the tripartite consultations. It notes, in connection with the application of paragraphs 1(f) and 3 of Article II of the Convention that paragraphs 4.4 and 4.5 of MN No. 2-011-33 (Rev. 8/14) state that:

… the Administrator considers any person engaged or working in any capacity on board a ship and whose normal place of work is on board for the business of that ship who is contractually provided with social protections by either the shipowner/operator or third party that are equivalent to or are greater than those required by the MLC, 2006, to have been provided with social protections that substantially meet the Convention requirements. In all cases, the burden of proof shall rest with the shipowner/operator who shall show through documentation during the inspection process that these requirements have been met. (See Annex III of this Notice). Notwithstanding, the Administrator shall make determinations under Resolution VII on a ship-by-ship basis ...

The Committee notes that a number of determinations have been made as set out in the annex to this MN.

The Committee further notes, in connection with paragraphs 1(i) and 5 of Article II regarding the definition of a ship and the application of the Convention to a ship or a particular category of ship, that section 2.4 of MN No. 2-011-33 (Rev. 8/14) states that:

The Administrator considers units engaged in exploration, exploitation, and/or processing of sea-bed mineral resources, including production, storage and offloading, maintenance, construction or accommodation units, when on location for the purpose of conducting or supporting operations subject to the jurisdiction of a host coastal State, to be installations and not ships. Units flagged and certified in accordance with the RMI Mobile Offshore Drilling Unit Standards (MI-293) and/or other relevant applicable national laws and regulations where the subject matter is dealt with differently are considered to substantially meet the requirements of the MLC, 2006, and thus are not subject to certification under the Convention in these circumstances.

These units also are deemed to be substantially compliant with MLC, 2006, when underway for purposes of relocation or dry-docking and therefore are not subject to certification in these circumstances. Unit operators are encouraged, however, to voluntarily seek inspection and certification under the provisions of the Convention to the extent practicable, in accordance with procedures established by the Administrator …

The Committee understands that the Government has made determinations with respect to situations of doubt as to whether a ship or category of ships is to be considered a ship for the purpose of the Convention. The Committee understands from the above quoted MN that mobile offshore drilling units are considered ships when navigating, but not otherwise, and that other requirements, which specifically apply to these units/ships, are considered substantially equivalent. The Committee also understands that certain personnel on board these units, who appear to be related to technical offshore resource exploitation activities, have been determined to be categories of persons who are not seafarers.

The Committee recalls that the question of exclusion of persons or ships and making a determination, after consultation in the event of doubt, as to the application of the Convention is addressed in Article II. The Committee also recalls, in that respect, that under paragraphs 3 and 4 of Article VI, the concept of substantial equivalence relates only to ships and seafarers that are covered by the Convention and refers to a decision that may be taken by a Member when it finds that it is not in a position to implement the rights and principles in the manner set out in Part A of the Code and instead decides to implement Part A through provisions in its laws and regulations or other measures which are substantially equivalent. A Member exercising the flexibility under paragraph 3 is required to satisfy itself that the requirements in paragraph 4(a) and (b) are met. The Committee recalls that substantial equivalence relates only to the requirements in Part A of the Code in Titles 1–4 and is not applicable to Title 5. The Committee notes that it is not clear from the information provided whether any substantial equivalences have been adopted under Article VI. In that respect, the Committee notes that the DMLC Part I indicates that no substantial equivalences have been expressly adopted, despite the text of the MN No. 2-011-33 (Rev.8/14) which states otherwise. Moreover, it appears that substantial equivalence is being applied to MoUs in connection with the requirements in Title 5. The Committee therefore requests that the Government clarify whether any substantial equivalence(s) have been adopted.

Regulation 2.1 and the Code. Seafarers’ employment agreements. The Committee notes that section 803(b) of the Maritime Act excludes masters from the definition of a seafarer and section 810 provides that: “Any contractual provision to the contrary notwithstanding, the shipowner, with or without good cause may at any time, terminate the employment of and dismiss the Master.” The Committee notes that the Maritime Regulations, which appear to more specifically implement the provisions of the Convention do not exclude masters from the definition of the term “seafarer” in section 1.03, paragraph 17 and provide in section 1.03, paragraph 19 that the term “seafarer’s employment agreement” includes both a contract of employment and articles of agreement. The Committee notes that the Regulations contain separate provisions with respect to seafarer employment agreements (paragraph 1 of section 7.45 Conditions of Employment) and articles of agreement (section 7.46 Shipping Articles), with the master excluded from the definition of a seafarer in the latter case. The Committee also notes that paragraph 1 (g) and (h) of section 7.45 establishes minimum notice periods for early termination of a seafarer’s employment agreement and also for cases where a seafarer may request termination without notice. The Committee understands that these notice periods would also apply to early termination of a master’s seafarers’ employment agreement; however, the relationship between these provisions in the Regulations and section 810 of the Maritime Act, and between the provisions on seafarers’ employment agreements and articles of agreement, is not clear.

The Committee also notes that paragraph 1(b) of section 7.45 of the Maritime Regulations permits the Administrator to, at its sole discretion, determine that conflicting provisions in a collective agreement are substantially equivalent provided that it is not a lesser standard than the Maritime Act or Regulation. The Committee notes this information and refers to its comments above with respect to the concept of substantial equivalence. The Committee requests that the Government clarify the relationship between seafarers’ employment agreements and the articles of agreement under the Maritime Regulations and provide information regarding the minimum notice period for termination of the employment agreements for ships’ masters. The Committee also requests that the Government provide information with respect to any substantial equivalences it has adopted regarding collective agreements.

Regulation 2.3 and the Code. Hours of work and hours of rest. The Committee notes that MN7-0510-2 (Rev. 11/13), at paragraphs 1.5 and 1.6, appears to provide for possible exceptions to the minimum hours of rest (which may be permitted by a collective agreement in accordance with paragraph 13 of the Convention) based on amendments to a Convention adopted by the International Maritime Organization (IMO). However, it is not clear whether compensatory leave, as required under paragraph 13 of Standard A2.3, is provided for. In addition the MN appears, in paragraph 4.2, to place the responsibility for keeping records of daily hours of rest (see paragraph 12 of Standard A2.3) on the seafarer concerned. The Committee requests the Government to provide information on the application of paragraph 13 of Standard A2.3, and to clarify who is responsible for keeping the records of seafarers daily hours of rest or work on board ship, in accordance with paragraph 12 of Standard A2.3.

Regulation 2.7 and the Code. Manning levels. The Committee notes that MN 7-038-2 (Rev. 7/14) sets out the requirement for safe manning. The Committee recalls that, under paragraph 3 of Standard A2.7, the competent authority is to take into account the requirements of Regulation 3.2 and Standard A3.2 concerning food and catering. The Committee notes that one example of a safe manning document that it reviewed, for yachts, refers to a cook, but there did not appear to be any references in the other documents to the requirements under Regulation 3.2 and Standard A3.2. The Committee requests the Government to provide information with respect to the implementation of paragraph 3 of Standard A2.7 in the determination of manning levels.

Regulation 2.8 and the Code. Career and skill development and employment opportunities for seafarers. Noting the Government’s indication that the seafaring/maritime profession is not currently a preferred career choice, the Committee requests the Government to provide detailed information concerning its national policies that encourage career and skill development and employment opportunities for seafarers.

Regulation 4.2 and the Code. Shipowners’ liability. The Committee notes that the MG 7-046-1(2013) entitled Guidance on Seafarer Employment Agreements (SEAs) explains the regulations concerning health and social security for seafarers. It notes, in this respect, that section 2.23 lays out the requirement for liability insurance and requires proof of satisfactory third party liability insurance. While taking due note of the third party liability insurance, which includes protection and indemnity insurance (through P&I) clubs, the Committee notes that it is not clear whether such coverage will encompass long-term disability, as called for under the Convention. The Committee requests the Government to identify its national laws and regulations which ensure the compensation in the event of long-term disability of seafarers due to an occupational injury, illness or hazard.

Regulation 4.3 and the Code. Health and safety protection and accident prevention. The Committee notes MG 2-11-3(2009), entitled Guidelines on the Basic Elements of a Shipboard Occupational Health and Safety Program, which recommends that companies set policies and objectives, and develop procedures for managing the Shipboard Occupational Health and Safety Program (SOHSP). The Committee further notes the appendices to the MG which set out detailed guidance for seafarer training, worker protection programmes, record keeping, auditing and the express acknowledgment that workers and their representatives participate in the development of the occupational health and safety programme and conduct of training and education. While taking due note of the comprehensive information contained in these Guidelines, the Committee notes that it is not clear whether shipowners’ and seafarers’ organizations were involved in the development and promulgation of the Guidelines, as called for under paragraph 2 of Regulation 4.3 of the Convention nor do they stipulate that the laws and regulations will be regularly reviewed in consultation with these organizations, as called for under paragraph 3 of Standard A4.3. The Committee accordingly requests the Government to indicate whether the Guidelines set out in MG 2-11-3(2009) were developed after consultation with the representative shipowners’ and seafarers’ organizations, as well as whether such organizations will participate in regular reviews of the applicable laws and regulations, as required under the Convention. In addition, noting that provision for these programmes on board ships was not included in the example of a DMLC Part II, the Committee requests the Government to provide information as to how it ensures that such programmes and the requirements for a ship safety committee, for ships on which there are five or more seafarers, are in place on board ships flying its flags.

Regulation 4.5 and the Code. Social security. The Committee recalls that, in accordance with paragraphs 2 and 10 of Standard A4.5, at the time of ratification of the MLC, 2006, the Government specified the following branches of social security: medical care; sickness benefit; unemployment benefit; employment injury benefit; and survivors’ benefit. The Committee further notes the Government’s indication that these benefits are provided by shipowners or third parties to all seafarers working on board ships flying the flag of the Marshall Islands, regardless of residency, and is at a higher level than that provided to shore workers in the Marshall Islands. The Committee requests the Government to provide more information with respect to the arrangement it has made to provide social security protection to all seafarers ordinarily resident in its territory when they work on ships that fly the flag of another country, as well as the arrangements it has referred to with respect to non-resident seafarers working on ships flying its flag.

Regulation 5.1. Flag State responsibilities. The Committee notes the Government’s designation of recognized organizations (ROs) under section 5.0 of MN No. 2-011-33 (Rev. 8/14) and the indication that the competent authority is in the process of implementing IMO Resolution MSC.349(92) (the new “RO Code”), with full compliance expected by 1 January 2015. The Committee also notes that section 6.2.1 of MN No. 2-011-33 (Rev. 8/14) concerning the inspection and certification requirements for “Existing Vessels – Change of Flag”, is unclear as it appears to envisage the application of a range of standards, including those set out in Accommodation of Crews Convention (Revised), 1949 (No. 92), and the Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133), for ships constructed before the entry into force of the Convention for the Marshall Islands as well as in the case of ships that change their flag to that of the Marshall Islands. The Government is requested to provide information with respect to the measures it has adopted to implement Regulation 5.1.2 and the Code relating to the authorization of recognized organizations. The Committee also requests the Government to provide information clarifying the requirements that apply to inspection and certification in the case of ships constructed before the entry into force of the MLC, 2006 for the Marshall Islands (covering the Convention requirements in general, and those relating to ship construction and equipment in the context of Regulation 3.1) as well as in the case of ships that change their flag to that of the Marshall lslands.

[The Government is asked to reply in detail to the present comments in 2016.]