Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1980)

The Committee notes with interest the detailed information and statistics in the Government's report as well as the reports of the Marine Accident Investigation Branch and copies of the regulatory texts enacted in 1997-98.

In its report the Government has noted that Article 2 of the Convention does not specify either the form which laws or regulations should take, or the manner in which they should ensure the safety of life on board ship. The Committee recalls that while the means to be employed are left in large part to the ratifying State to decide, the wording of the Convention ("to ensure the safety of life on board ship") is unequivocal in placing compliance at the highest level. The Committee will now consider this having regard to paragraphs 80-84 of its 1990 General Survey on labour standards on merchant ships.

The Committee, therefore, recalls its previous comments concerning the enactment of laws or regulations laying down safety standards, including but not limited to those relating to hours of work, so as to ensure the safety of life on board ship.

The Committee recalls that Regulation 7(1) and (2) of the Merchant Shipping (Safe Manning, Hours of Work and Watchkeeping) Regulations 1997 (hereinafter "Regulations") is entitled General duty of company, employers and masters, which sets forth the standards applicable in non-emergency situations. The Regulation requires that, so far as is reasonably practicable, the company shall ensure that the master, who in turn shall ensure that the seamen do not work more hours than is safe in relation to the safety of the ship and the master's and seamen's performance of their duties. The master's duty to ensure that, so far as is reasonably practicable, the hours of work specified in the schedule are not exceeded, is restated in Regulation 9(9), Schedules of duties and need to record. The Committee notes in particular that these Regulations concern normal circumstances, and that Regulation 7 is subordinated to Regulation 10 (Exception for emergencies). In its report the Government notes the Committee's comments and makes the point that there will be occasions "due to circumstances beyond control" when deviations from the schedule of duties will be necessary.

The Committee with regard to this matter considers that there is a fundamental distinction to be made between standards to ensure safety in non-emergency situations, such as those covered in Regulation 7, and the exceptional measures which may be taken in emergencies (Regulation 10).

The Committee, moreover, takes note that the Regulations appear to recognize this distinction; however, the more flexible notion of reasonable practicability appears not in the Regulation on emergencies, but in the Regulation on general duties. Thus the requirement under Article 2 of the Convention to ensure safety is not met when a general duty is held only to a standard of "so far as is reasonably practicable".

The Committee considers that the applicable legal standard which may justify deviating from schedules of duties set to ensure the safety of life on board ship is that of force majeure: events which are unforeseeable, irresistible, and external. Force majeure effectively suspends the obligation for the duration of the emergency. The Committee recalls, in particular, that the concept of force majeure is circumscribed: emergencies caused in whole or in part by human factors (acts or omissions) do not fall within its scope. For these reasons, the Committee considers that any diminution of standards set to ensure safety fails to fully apply Article 2 of the Convention.

The Government's report draws the Committee's attention to the existence of sanctions set forth in Regulations 16 and 17 for any company, master or seaman who is found to be in breach of specified Regulations. The Committee considers, however, that since Regulation 17(10) incorporates the standard of reasonable practicability as a defence in proceedings for failure to comply with a duty or requirement under these Regulations, the penalties provisions suffer from the same defect as the rest of the text with regard to ensuring the safety of life on board ship. Therefore, the Committee hopes that the Government will review these Regulations with a view to bringing them into conformity with the Convention.

The Committee has taken note that representative organizations of United Kingdom seafarers and shipowners have been consulted concerning the ratification of the Seafarers' Hours of Work and the Manning of Ships Convention, 1996 (No. 180), and that following tripartite consultations in 1998 the Government will announce its proposed course of action with regard to the Convention.