Guidance

MGN 471 (M) Amendment 1 maritime labour convention, 2006 definitions

Published 28 June 2022

Summary

The purpose of the Marine Guidance Notice is to explain the UK’s understanding of the key terms used in the Maritime Labour Convention, 2006 (MLC).

The UK intends to implement the MLC fully and without departing from the intention of those who drafted the Convention.

The terms covered in this notice are “seafarer,” “ship” and “shipowner.”

Amendment 1 updates the definition of seafarer to cover special purpose ships.

1. Introduction

1.1 In transposing the maritime labour convention, 2006 (MLC) into UK law, it has been necessary to make some changes to the exact words used in the convention text, in order to achieve the results intended by the
convention. This includes the wording used for some of the definitions – quoted from the merchant shipping (maritime Labour Convention) (Survey and Certification) Regulations 2013.

1.2 This has caused some confusion, with some readers believing that because the words have changed, the UK legislation must mean something different from the MLC. This is not the case. The MLC text had to be in a form that was agreeable to representatives from many countries and so was not written with the UK legal system in mind. It is therefore not always as clear or precise as UK law demands.

2. Seafarer

2.1 The MLC says

“seafarer” means any person who is employed or engaged or works in any capacity on board a ship to which this Convention applies. (Article II.1.(f))

“Except as expressly provided otherwise, this Convention applies to all seafarers.” (Article II.2)

“In the event of doubt as to whether any categories of persons are to be regarded as seafarers for the purpose of this Convention, the question shall be determined by the competent authority in each Member after consultation with the shipowners’ and seafarers’ organizations concerned with this question.” (Article II.3)

2.2 Resolution VII of the International Labour Conference at its 94th (Maritime) session in Geneva in February 2006, containing information on occupational groups, sets out the criteria which can be used to determine whether a particular individual is a seafarer.

2.3 In the UK implementing legislation, the definition is given as:

“seafarer” means any person, including a master, who is employed or engaged or works in any capacity on board a ship and whose normal place of work is on a ship.

There are three differences between this and the MLC definition:

(a) the words “including a master” are added for the avoidance of doubt. It might be considered, for example, that because the master is the representative of the shipowner, and the shipowner has primary responsibility for ensuring seafarers’ rights under the Convention, the master does not need the protection of the Convention. However, it is clear that the master’s own terms and conditions of work should be protected by the MLC, the same as any other person working on board the ship.

(b) the application provisions in each implementing instrument set out which ships the regulations apply to, so this does not normally need to be included in the definition of “seafarer.”

(c) the words “whose normal place of work is on a ship” are added because this is a key determining criteria (taken from Resolution VII). It ensures that surveyors, pilots and visiting technical consultants are not caught by the definition, and also (to take an extreme case) that a passenger who happens to answer some business e-mails while on holiday on board (i.e., “works on a ship”) cannot claim to be a seafarer. For special purpose ships, the MCA will, on application from the shipowner, consider issuing a statement stating that Special Personnel on board a UK ship are not considered as seafarers and therefore are not subject to the MLC. Further information on this can be found in [MGN 674] application of the special purpose ships code (https://www.gov.uk/government/publications/mgn-674m-application-of-the-special-purpose-ships-code).

2.4 Further explanation of the UK interpretation of “seafarer”, including examples, is attached at annex 1.

3. Ship

3.1 The MLC says

“ship” means 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. (Article II.1(i))

“Except as expressly provided otherwise, this convention applies to all ships, whether publicly or privately owners, ordinarily engaged in commercial activities other than ships engaged in fishing or in similar pursuits and ships of traditional build such as dhows and junks. This Convention does not apply to warships and naval auxiliaries.” (Article II.4)

“In the event of doubt as to whether this convention applies to a ship or particular category of ships, the question shall be determined by the competent authority in each member after consultation with the shipowners’ and seafarers’ organizations concerned.” (Article II.5)

3.2 In the UK implementing legislation

“United Kingdom ship” means a ship which is

(a) a United Kingdom ship within the meaning of section 85(2) of the Merchant Shipping Act 1995 [this covers (broadly) all registered ships, and unregistered ships owned by a company based in the UK]; or

(b) a Government ship within the meaning of section 308(4) of the Merchant Shipping Act 1995 which is ordinarily engaged in commercial maritime operations or;

(c) a hovercraft registered under the Hovercraft Act 1968.

3.3 In addition, the application provisions of each implement instrument ensure that the regulations do not apply to –

(a) pleasure vessels (which must not be used for any commercial purposes, which includes operating under charter – see the full definition in the Regulations)

(b) fishing vessels (there is a separate ILO Work in Fishing Convention, C188 providing global standards for living and working conditions for fishermen)

(c) ships of traditional build (this means built using traditional construction techniques that were common when that style of vessel was first built. It does not mean a traditional style ship built using modern constructive techniques. The purpose of this clause in the MLC is to preserve traditional ship building techniques)

(d) warships or naval auxiliaries; and

(e) vessels which are not ordinarily engaged in commercial activities.

3.4 Since many earlier regulations on seafarer living and working conditions applied to all sea-going ships, the UK is not disapplying most of the MLC standards to ships operating in “waters within, or closely adjacent to, sheltered waters or areas where port regulations apply.” However, the survey and inspection provisions on the MLC are not applied to such vessels and certain other standards, where inappropriate are not applied. See individual statutory instruments for detail of their application.

3.5 The UK interpretation of “ships operating exclusively in… waters within, or closely adjacent to, sheltered waters or areas where the port regulations apply” is “ships operating from a UK port on domestic voyages no more than 60 miles from a safe haven in the UK”.

3.6 It has been possible to apply this generous interpretation largely because most of the MLC standards protected seafarers on such vessels are already in place in UK legislation.

3.7 MODUs are generally considered to be “ships” for the purposes of the MLC. However, MCA will recognise HSE Offshore standards and the application of the UK employment law as equivalent to MLC standards. For the time being, MODUs without their own means of propulsion will not be subject to inspection or survey by the MCA. Further discussion of the MCA’s view on application of the MLC to MODUs, vessels without their own means of propulsion, and vessels which normally operate within the 60 mile limit when visiting a foreign port for refit or repair is at annex 3.

4. Shipowner

4.1 The MLC says

“shipowner” means the owner of the ship or another organization or person, such as the manage, agent or bareboat charterer, who has assumed the responsibility for the operation of the ship from the owner, and who, on assuming such responsibility, has agreed to take over the duties and responsibilities imposed on shipowners in accordance with this Convention, regardless of whether any other organization or persons fulfil certain of the duties or responsibilities on behalf of the shipowner. (Article II(j))

4.2 The UK definition says

“shipowner” means –

(a) in relation to a ship which has a valid Maritime Labour Certificate, the person identified as the shipowner on that Certificate

(b) in relation to any other ship, the owner of the ship, or, if different, any other organisation or person such as the manager, or the bareboat charterer, that has assumed the responsibility for the operation of the ship from the owner.

4.3 The word “agent” is omitted from the UK definition. The term “agent” in the MLC definition does not mean “agent” in its usual English legal sense. It is not best legal drafting practice to use a term which is inconsistent with its natural or usual meaning. If it were the shipowner’s “agent” in the sense of the person acting on the shipowner’s behalf, it is difficult to see the circumstances in which the agent would accept personal liability for the shipowner’s responsibilities.

4.4 Under the MLC definition, in order for another person (X) to be the shipowner rather than the actual shipowner, the MLC definition requires (a) that X has assumed the responsibility for the operation of the ship; (b) that X has entered into an agreement to take over MLC duties and responsibilities under the MLC. This potentially leaves the person named on the Certificate the scope to dispute the existence of these elements as a means of resisting enforcement of MLC obligations, which would, as a minimum, delay the seafarer receiving their entitlements while the issue is resolved, which may be inappropriate in the circumstances. So, the UK definition omits the final part of the MLC definition.

4.5 MCA believes that there should be no scope for argument that the person named on the Certificate has liabilities towards seafarers on their vessels. Whoever is named as shipowner on the Maritime Labour Certificate and Seafarer Employment Agreement has, by definition, accepted the responsibilities and liabilities set out in the MLC.

More information

Seafarer Safety and Health Branch
Maritime and Coastguard Agency
Bay 2/17
Spring Place
105 Commercial Road
Southampton
SO15 1EG

Tel: +44 (0)203 81 72777

Email: [email protected]

Website: www.gov.uk/mca

General enquiries: [email protected]

Please note that all addresses and telephone numbers are correct at time of publishing.

Published: June 2022

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