Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

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

The Committee notes the Government's report for the period ending 31 May 1996, as well as the Trades Union Congress (TUC) comments of 8 November 1996 on the Government's report, and the Government's reply of 22 November 1996 to the TUC's comments. The Committee has taken into consideration, in this observation and in a request addressed directly to the Government, the comments by the TUC and the reply by the Government.

In its comments, the TUC considers that the Merchant Shipping (Hours of Work) Regulations 1995 are unclear and unenforceable. It further notes that the Government has recently published a consultation paper on the proposed implementation of the revised International Convention for the Standards of Training, Certification and Watchkeeping (STCW), and that in the draft Safe Manning and Watchkeeping Regulations, the Government has given notice that it intends to revoke the Regulations and replace them with revised guidelines.

The TUC states its position that all seafarers should enjoy ten hours' daily rest. It refers to regulations currently in force providing for a minimum of seven hours rest per 24-hour period but notes that, if for operational reasons this were not practicable, the Marine Safety Agency (MSA) has advised that the operator should ensure an aggregate 16 hours rest in a 48-hour period (as provided under Regulation 5(c)). The TUC notes that this arrangement has often resulted in seafarers working for 48 hours - four hours on and four hours off - thus permitting employers to ensure breaks totalling 16 hours within a 48-hour period, but without the guarantee of a rest period of sufficient length to ensure proper rest and recovery.

1. Safety standards and hours of work

The Committee refers to the provisions of the Merchant Shipping (Hours of Work) Regulations 1995 (hereinafter "Regulations") which came into force on 28 February 1995.

The Committee notes, in particular, the requirement in Regulation 2(1) and (2) that every operator or employer, and every master of a ship, respectively, has a duty to ensure so far as is reasonably practicable (italics added) that seamen do not work more hours than is safe in relation to the safety of the ship and the seamen's performance of their duties.

The Committee notes that these Regulations form part of the statutory instruments concerning merchant shipping safety, and as such are in the purview of Article 2(a)(i) of the Convention concerning safety standards, including standards of competency, hours of work and manning, so as to ensure the safety of life on board ship.

In this regard, the Committee observes that the operative criterion with regard to hours of work throughout the Government's Regulations is that of reasonable practicability, thus qualifying the standard of safety which, as set forth in Article 2(a)(i) of the Convention, is unqualified.

The Committee recalls that the International Convention for the Standards of Certification and Watchkeeping (STCW), under section A-VIII/1 (Fitness for duty), requires that (i) all persons who are assigned duty as officer in charge of a watch or as a rating forming part of a watch shall be provided a minimum of ten hours of rest in any 24-hour period, and (ii) the hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length. The Committee notes that in subsection 3 of the same section of the STCW, the only permissible derogations from the required rest periods are emergencies, drills or overriding operational conditions. The Committee further refers to the Seafarers' Hours of Work and the Manning of Ships Convention, 1996 (No. 180), adopted at the 84th (Maritime) Session of the International Labour Conference. This Convention adopts rest period requirements comparable to those of the STCW, subject to emergency conditions where a master may require a seafarer to perform any work necessary for the immediate safety of the ship or for the assistance of persons in distress at sea. The Committee notes that Convention No. 180 has been included in Part A of the Supplementary Appendix to the Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147).

The Committee notes the Government's statement in its report that it would be both unreasonable and unrealistic to impose rigid hours of work requirements on shipowners, and it therefore intended that the owners and masters of individual ships should be responsible for ensuring that the hours worked comply with their assessment of what is safe for a particular shipping operation.

In this regard, the Committee wishes to draw the Government's attention to the obligation under Article 2 of the Convention for each Member to have laws or regulations laying down safety standards; that this obligation is incumbent on the State and cannot be delegated to individuals, including professionals, to be dealt with according to their assessment of what is safe on an ad hoc basis under non-emergency conditions. The Convention requires that the State assume the primary responsibility in this regard, and the Committee considers that the use of subjective and imprecise safety criteria such as reasonable practicability and normally available rest periods in order to achieve operational flexibility cannot be considered as meaningful safety standards and as fulfilling the State's responsibility under Article 2 of the Convention.

In this regard, the Committee requests the Government to indicate in what manner it considers the duty to ensure safety standards, as set forth in Regulations adopting a threshold criterion of reasonable practicability and periods of rest normally available, would be commensurate with the unqualified undertaking set forth in Article 2 of the Convention to have laws or regulations laying down safety standards, including standards of competency, hours of work and manning, so as to ensure the safety of life on board ship.

The Committee further notes from the Government's comments that it will be giving careful consideration to the new Seafarers' Hours of Work and Manning of Ships Convention in the context of overall Government policy on working time to ensure that it is justified in terms of benefit to safety and counter pollution effort and that it can be applied in a manner compatible with the implementation of the International Maritime Organization's revised Standards of Training, Certification and Watchkeeping Convention. The Government has indicated that its consideration of the Convention will include consultation with representative organizations of UK seafarers and shipowners in due course. The Committee hopes the Government will provide information concerning these tripartite consultations.

2. Standard of duty

The Committee further notes with some concern that under Regulation 5, in any proceedings for an offence under any of these Regulations consisting of a failure to comply with a duty or requirement to do something so far as is reasonably practicable, it shall be for the accused to prove that it was not reasonably practicable to do more than was in fact done to satisfy the duty or requirement. Thus, the traditional burden of proof of guilt, normally borne by the accuser, is here, in the case of disciplinary proceedings, shifted to a burden of proof of innocence, borne by the accused, and judged according to varying interpretations of what was reasonably practicable at the moment. The Committee requests the Government to communicate any comments which would shed light on this point, notwithstanding the provisions of Regulation 7(6), listed under Penalties, that it shall be a good defence for a person charged with an offence involving contravention of Regulation 4 to prove that he took all reasonable steps to avoid commission of the offence.

3. Fitness for duty

In this regard, the Committee recalls from the Government's report that the Regulations place an onus on every master and seaman to ensure that he is properly rested before commencing duty.

Thus, it is unclear to the Committee whether the notion of aggregate hours of rest is in practice compatible with the safety of life on board ship in general and, in particular, whether the seafarer can, under such conditions, fulfil his obligation under Regulation 3 to ensure that he is properly rested when commencing duty on a ship and that he obtains adequate rest during periods when he is off duty.

In this regard, and in the event of proceedings resulting from an offence under the Regulations, the Committee recalls the seafarer's rebuttable presumption of guilt under Regulation 5.

The Committee requests the Government to forward copies of the consultation paper on the implementation of the STCW and the draft Safe Manning and Watchkeeping Regulations as soon as possible, as well as any comments concerning the points raised in this observation.

The Committee is addressing a request directly to the Government on a number of other matters.

[The Government is requested to report in detail in 1997.]