Maritime Work Law Fundamentals: Responsible Shipowners, Reliable Seafarers

Transcription

1 Maritime Work Law Fundamentals: Responsible Shipowners, Reliable Seafarers

2 Iliana Christodoulou-Varotsi Dmitry A. Pentsov Maritime Work Law Fundamentals: Responsible Shipowners, Reliable Seafarers 123

3 Dr. Iliana Christodoulou-Varotsi P.O. BOX Post Code N. Psychiko, Greece Dmitry A. Pentsov Geneva, Switzerland Authors note: The usual disclaimer applies. While every effort has been made for the accuracy of the instruments which are reproduced herein, readers are advised to have recourse to the genuine instruments for official purposes, including Court litigation, to be cautions about possible amendments and to seek legal advice where required. The instruments of the International Labour Organization are reproduced by permission of the International Labour Office. The ILO shall accept no responsibility for any inaccuracy, errors or omissions or for the consequences arising from the use of the Text. The instruments of the IMO are reproduced from IMO documents or Annexes in English contained in national statutes (Cypriot Law 1(III)/98, Official Gazette No 3232, Supplement I, dated and Greek Presidential Decree 56/2004, Official Gazette A 47, dated ). All other instruments are reproduced from the official websites of the organizations concerned and are also subject to disclaimers. ISBN e-isbn DOI / Library of Congress Control Number: c 2008 Springer-Verlag Berlin Heidelberg This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Production: LE-TEX Jelonek, Schmidt & Vöckler GbR, Leipzig Coverdesign: WMX Design GmbH, Heidelberg Printed on acid-free paper springer.com

4 Foreword The importance of international maritime labour law - both as a component of international maritime law, and in socio-political and economic terms - has been recognised by the IMO International Maritime Law Institute for a number of years. Indeed, the Institute has annually organised a course on maritime labour law with the participation of inter alia the International Maritime Organization, the International Labour Organization, the International Transport Workers Federation, and the German Shipowners Association. It was therefore a great pleasure when the authors invited me to introduce their forthcoming monograph on Maritime Work Law Fundamentals: Responsible Shipowners Reliable Seafarers. As the title suggests, a fundamental challenge of this branch of international maritime law is to achieve a balance between the interests of the two main stakeholders. Institutionally, the effort to achieve this balance dates back a number of decades with its genesis mainly found in the work of the International Labour Organization. It has to be said that whilst this effort achieved great progress, it has led to a haphazard, plethora of legal instruments. Between 1920 and 1996, the International Labour Organization adopted some sixty-six instruments relating to seafarers conditions of work. These texts were criticised as a number became less relevant over the years. These doubts are reflected in the fact that the instruments were unevenly enforced and very often not widely adhered to. This precarious situation led the International Labour Organization some ten years ago to review its maritime labour instruments with the scope of making them more relevant to the contemporary needs of stakeholders. This process culminated in the Maritime Labour Convention of 2006, which consolidated the pre-existing legal texts on maritime labour and brought clarity and order in this branch of international maritime law. There are other important institutional sources of international maritime labour law which complement the work of the International Labour Organization. The International Maritime Organization has developed over the years important treaties such as the Standards of Training, Certification and Watchkeeping Convention dealing with the human dimension of international maritime law and consequently relevant to maritime labour law. In fact, one is able to trace strong influences of IMO s treaty practice in the Maritime Labour Convention. These efforts to harmonize the work of the International Labour Organization and the International Maritime Organization are most welcome and augur well for the future stability and security of international maritime labour law. Complementing the universal work of these UN Specialized Agencies are important regional initiatives which may also have global importance, given the international nature of shipping. In particular, reference can be made to the series of

5 VI Foreword Memoranda of Understanding on Port State Control and the growing EU regimes protecting maritime labour. Given the numerous texts which the abovementioned processes have produced, the stakeholder, academic, practitioner and student will find this book of great utility and assistance. The authors have compiled in one convenient volume the most relevant maritime labour instruments in a clear and logical manner. Particularly useful are the guides which introduce each Chapter. The readers will also find excellent references to bibliographical sources, and relevant case-law of various maritime jurisdictions. The vital role of maritime labour law, in the proper and effective governance of shipping, is not adequately reflected in the literature of the law. Its comprehensive treatment by the authors is thus particularly welcome. I am confident that their work s prime goal of contributing to a better understanding of maritime labour instruments will be achieved. Malta 11 th June 2007 David J. Attard Director IMO International Maritime Law Institute

6 Preface The pathway to acceptable maritime labour standards has been a long and constructive one. The interest seems to have shifted nowadays from theory to practice. Adequate norms do exist; the challenge is knowledge thereof and the will of all those concerned to effectively implement them. In this context, The Maritime Work Law Fundamentals: Responsible Shipowners, Reliable Seafarers answers a need and endeavours to fill a gap in existing documentation. The Maritime Work Law Fundamentals answers the need for reflection on contemporary maritime labour standards, beyond the dichotomy of the opposing interests between the employer and the employee. Qualitative shipping should place itself in a long-term perspective where the high standards of its human component would also constitute its competitive advantage. Credible shipowners appear to share this concern. Not only does The Maritime Work Law Fundamentals answers a theoretical need, it also aspires to furthering practical application. This is pursued by presenting, in a global and accessible manner, existing maritime instruments which have an impact not only on maritime labour but also on shipowners, flag States and port States and which stem from the International Labour Organization (ILO), the International Maritime Organization (IMO) and the European Union (EU); moreover, the Paris Memorandum of Understanding on Port State Control (Paris MOU), the Memorandum of Undestanding on Port State Control in the Asia- Pacific Region (Tokyo MOU) and the Memorandum of Understanding on Port State Control in the Black Sea (Black Sea MOU) have been included. It would have been a vain effort to consider rendering this book exhaustive, owing to the plethora of material available. However, we have incorporated some of the most important instruments - including recently adopted ones which influence the regulatory framework of maritime work, such as the new consolidated Convention of the ILO on maritime work (adopted in February 2006). This work also aims to render the instruments both accessible and comprehensible, in the form of a compilation of reasonable length. The jurist, the lawyer, the drafter, the maritime administrator, the social partner, the researcher, the university lecturer and the student should find the work a useful tool. Since it is intended to be used as both a reference book and an introductory guide containing comments from the authors, this work does not diminish the need for recourse to the original instruments, which stem from the organizations that have elaborated them and which are, of course, the original texts. On the contrary, it provides the reader with the opportunity to learn how to use the aforementioned instruments more effectively.

7 VIII Preface The reader will find herein an overview of the above-mentioned instruments as well as comments with references to bibliography sources and case-law. The sources which are referred to stem notably from British, French, Greek, North- American and Russian literature. The editors and authors would like to express their gratitude to the ILO, which granted copyright permission for the reproduction of the instruments concerned; they would also like to extend their thanks to the IMO, the Paris MOU, the Tokyo MOU, the Black Sea MOU and the European Commission for providing guidance on legal issues concerning the reproduction of relevant instruments. Professor Patrick Chaumette of the Université de Nantes provided guidance at various stages of Dr. Christodoulou-Varotsi s research on maritime labour issues, for which she is grateful; Professor Erik Rosaeg of the Scandinavian Institute of Maritime Law provided useful comments on the legal implications of the International Safety Management Code; mention should be made of Dr. Anthony Madella, Mrs. Lydia Markari-Kyriakou and Mr. Panayiotis Pacoutas from the Department of Merchant Shipping of the Republic of Cyprus for providing access to IMO documents, as well as of Commander (H.C.G.) George Boumpopoulos, from the Greek Ministry of Mercantile Marine, who has also offered useful guidance on IMO sources. The officers of the Division on Maritime Work of the same Ministry are also acknowledged. Mr. Panayiotis Toyias s help with the text processing was invaluable, as well as Mrs. Agatha Kopsidis comments on language improvements and Ms. Antigone Gaitana s further assistance on the accurate reproduction of the texts. Last but not least, the co-editors and co-authors would like to extend their thanks to Ms. Brigitte Reschke, in her capacity as Senior Editor Law of Springer, Heidelberg, for having demonstrated confidence in the qualities of the proposal submitted to her in view of the present publication and to Professor David J. Attard, Director of the International Maritime Law Institute (IMLI), which operates under the auspices of the IMO in Malta, for having honoured this work with his preface. Given the concern to have a collection of a reasonable volume, international conventions or regional instruments are reproduced in whole or in parts. This book is the result of a collaborative effort. Dr. Iliana Christodoulou- Varotsi is primarily responsible for editing and/or writing the sections on the IMO, the Memoranda of Understanding and the EU; Mr Dmitry A. Pentsov is primarily responsible for developments relating to the ILO. Should this book contribute to a better understanding of maritime labour instruments, it will have achieved its primary goal. Dr. Iliana Christodoulou-Varotsi Dmitry A. Pentsov Athens (N. Psychiko)-Geneva August 2007

8 Contents Foreword...V Preface... VII Part I: Standards of the International Labour Organization (ILO) By Dmitry A. Pentsov 1. General overview The ILO: its aims and purposes The ILO standard-setting activities The ILO supervisory machinery Types of supervision The Committee of Experts on the Application of Conventions and Recommendations The International Labour Conference Committee on the Application of Standards ILO maritime labour Conventions and Recommendations Overview The need for separate ILO maritime labour Conventions and Recommendations History of adoption and consolidation of ILO maritime labour Conventions and Recommendations Classification of ILO maritime labour Conventions and Recommendations Conventions and Recommendations of a General Character Content and practical application of standards The National Seamen s Codes Recommendation, 1920 (No. 9) The Seafarers Engagement (Foreign Vessels) Recommendation, 1958 (No. 107) The Social Conditions and Safety (Seafarers) Recommendation, 1958 (No. 108) The Employment of Seafarers (Technical Developments) Recommendation, 1970 (No. 139) The Continuity of Employment (Seafarers) Convention, 1976 (No. 145) The Continuity of Employment (Seafarers) Recommendation, 1976 (No. 154) The Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147)... 17

9 X Contents The Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention The Merchant Shipping (Improvement of Standards) Recommendation, 1976 (No. 155) Texts of standards National Seamen s Codes Recommendation, 1920 (No. 9) Seafarers Engagement (Foreign Vessels) Recommendations, 1958 (No. 107) Social Conditions and Safety (Seafarers) Recommendation, 1958 (No. 108) Employment of Seafarers (Technical Developments) Recommendation, 1970 (No. 139) Continuity of Employment (Seafarers) Convention, 1976 (No. 145) Continuity of Employment (Seafarers) Recommendation, 1976 (No. 154) Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147) Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, Merchant Shipping (Improvement of Standards) Recommendation, 1976 (No. 155) Conventions and Recommendations concerning the access to maritime employment Content and practical application of standards Minimum age The Minimum Age (Sea) Convention, 1920 (No. 7) The Minimum Age (Sea) Convention (Revised), 1936 (No. 58) Medical examination The Medical Examination of Young Persons (Sea) Convention, 1921 (No. 16) The Medical Examination (Seafarers) Convention, 1946 (No. 73) Training The Vocational Training (Seafarers) Recommendation, 1970 (No. 137) Qualifications The Officers Competency Certificates Convention, 1936 (No. 53) The Certification of Ships Cooks Convention, 1946 (No. 69) The Certification of Able Seamen Convention, 1946 (No. 74) Seafarers identity documents The Seafarers Identity Documents Convention, 1958 (No. 108) The Seafarers Identity Documents Convention (Revised), 2003 (No. 185)... 63

10 Contents XI Recruitment and placement The Placing of Seamen Convention, 1920 (No. 9) The Recruitment and Placement of Seafarers Convention, 1996 (No. 179) The Recruitment and Placement of Seafarers Recommendation, 1996 (No. 186) Texts of standards Minimum Age (Sea) Convention, 1920 (No. 7) Minimum Age (Sea) Convention (Revised), 1936 (No. 58) Medical Examination of Young Persons (Sea) Convention, 1921 (No. 16) Medical Examination (Seafarers) Convention, 1946 (No. 73) Vocational Training (Seafarers) Recommendation, 1970 (No. 137) Officers Competency Certificates Convention, 1936 (No. 53) Certification of Ships Cooks Convention, 1946 (No. 69) Certification of Able Seamen Convention, 1946 (No. 74) Seafarers Identity Documents Convention, 1958 (No. 108) Seafarers Identity Documents Convention (Revised), 2003 (No. 185) Placing of Seamen Convention, 1920 (No. 9) Recruitment and Placement of Seafarers Convention, 1996 (No. 179) Recruitment and Placement of Seafarers Recommendation, 1996 (No. 186) Conventions and Recommendations concerning conditions of maritime employment Content and practical application of standards Determination of conditions of employment The Seaman s Articles of Agreement Convention, 1926 (No. 22) Hours of work, rest and annual leave The Seafarers Hours of Work and the Manning of Ships Convention, 1996 (No. 180) The Seafarers Wages, Hours of Work and the Manning of Ships Recommendation, 1996 (No. 187) The Paid Vacations (Seafarers) Convention (Revised), 1949 (No. 91) The Seafarers Annual Leave with Pay Convention, 1976 (No. 146) Repatriation The Repatriation of Seamen Convention, 1926 (No. 23) The Repatriation (Ships Master and Apprentices) Recommendation, 1926 (No. 27) The Repatriation of Seafarers Convention (Revised), 1987 (No. 166)

11 XII Contents The Repatriation of Seafarers Recommendation, 1987 (No. 174) Conditions of work of young seafarers The Protection of Young Seafarers Recommendation, 1976 (No. 153) Texts of standards Seamen s Articles of Agreement Convention, 1926 (No. 22) Seafarers Hours of Work and the Manning of Ships Convention, 1996 (No. 180) Seafarers Wages, Hours of Work and the Manning of Ships Recommendation, 1996 (No. 187) Paid Vacations (Seafarers) Convention (Revised), 1949 (No. 91) Seafarers Annual Leave with Pay Convention, 1976 (No. 146) Repatriation of Seamen Convention, 1926 (No. 23) Repatriation (Ship Masters and Apprentices) Recommendation, 1926 (No. 27) Repatriation of Seafarers Convention (Revised), 1987 (No. 166) Repatriation of Seafarers Recommendation, 1987 (No. 174) Protection of Young Seafarers Recommendation, 1976 (No. 153) Conventions and Recommendations concerning safety, health, welfare and accommodation of seafarers Content and practical application of standards Safety The Food and Catering (Ships Crews) Convention, 1946 (No. 68) The Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) The Prevention of Accidents (Seafarers) Recommendation, 1970 (No. 142) Health The Health Protection and Medical Care (Seafarers) Convention, 1987 (No. 164) The Ships Medicine Chest Recommendation, 1958 (No. 105) The Medical Advice at Sea Recommendation, 1958 (No. 106) Welfare The Seamen s Welfare in Ports Recommendation, 1936 (No. 48) The Seafarers Welfare Recommendation, 1970 (No. 138) The Seafarers Welfare Convention, 1987 (No. 163) The Seafarers Welfare Recommendation, 1987 (No. 173)

12 Contents XIII Accommodation The Accommodation of Crews Convention (Revised), 1949 (No. 92) The Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133) The Bedding, Mess Utensils and Miscellaneous Provisions (Ships Crews) Recommendation, 1946 (No. 78) The Crew Accommodation (Air Conditioning) Recommendation, 1970 (No. 140) The Crew Accommodation (Noise Control) Recommendation, 1970 (No. 141) Texts of standards Food and Catering (Ships Crews) Convention, 1946 (No. 68) Prevention of Accidents (Seafarers) Convention, 1970 (No. 134) Prevention of Accidents (Seafarers) Recommendation, 1970 (No. 142) Health Protection and Medical Care (Seafarers) Convention, 1987 (No. 164) Ships Medicine Chest Recommendation, 1958 (No. 105) Medical Advice at Sea Recommendation, 1958 (No. 106) Seamen s Welfare in Port Recommendation, 1936 (No. 48) Seafarers Welfare Recommendation, 1970 (No. 138) Seafarers Welfare Convention, 1987 (No. 163) Seafarers Welfare Recommendation, 1987 (No. 173) Accommodation of Crews Convention (Revised), 1949 (No. 92) Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133) Bedding, Mess Utensils and Miscellaneous Provisions (Ships Crews) Recommendation, 1946 (No. 78) Crew Accommodation (Air Conditioning) Recommendation, 1970 (No. 140) Crew Accommodation (Noise Control) Recommendation, 1970 (No. 141) Conventions and Recommendations concerning social security for seafarers Content and practical application of standards The Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8) The Unemployment Insurance (Seamen) Recommendation, 1920 (No. 10) The Shipowners Liability (Sick and Injured Seamen) Convention, 1936 (No. 55) The Sickness Insurance (Sea) Convention, 1036 (No. 56) The Seafarers Pensions Convention, 1946 (No. 71) The Seafarers Social Security (Agreements) Recommendation, 1946 (No. 75) The Seafarers (Medical Care for Dependants) Recommendation, 1946 (No. 76)

13 XIV Contents The Social Security (Seafarers) Convention (Revised), 1987 (No. 165) Texts of standards Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8) Unemployment Insurance (Seamen) Recommendation, 1920 (No. 10) Shipowners Liability (Sick and Injured Seamen) Convention, 1936 (No. 55) Sickness Insurance (Sea) Convention, 1936 (No. 56) Seafarers Pensions Convention, 1946 (No. 71) Seafarers Social Security (Agreements) Recommendation, 1946 (No. 75) Seafarers (Medical Care for Dependants) Recommendation, 1946 (No. 76) Social Security (Seafarers) Convention (Revised), 1987 (No. 165) Conventions and Recommendations concerning labour inspection of seafarers working and living conditions Content and practical application of standards The Labour Inspection (Seafarers) Convention, 1996 (No. 178) The Labour Inspection (Seafarers) Recommendation, 1996 (No. 185) Texts of standards Labour Inspection (Seafarers) Convention, 1996 (No. 178) Labour Inspection (Seafarers) Recommendation, 1996 (No. 185) Maritime Labour Convention, Content and practical application of standards Scope of application of the Maritime Labour Convention Structure of the Maritime Labour Convention Areas for flexibility in implementation of the Maritime Labour Convention The meaning of substantial equivalence in the Maritime Labour Convention Contents of the Regulations and the Code Minimum requirements for seafarers to work on a ship Minimum age Medical certificate Training and qualifications Recruitment and placement Conditions of employment Seafarers employment agreements Wages Hours of work and hours of rest Entitlement to leave Repatriation Seafarers compensation for the ship s loss or foundering Manning levels

14 Contents XV Career and skill development and opportunities for seafarers employment Accommodation, recreational facilities, food and catering Accommodation and recreational facilities Food and catering Health protection, medical care, welfare and social security protection Medical care on board ship and ashore Shipowners liability Health and safety protection and accident prevention Access to shore-based welfare facilities Social security Compliance and enforcement Flag State Responsibilities Port State responsibilities Labour supplying responsibilities Text of standards Maritime Labour Convention, Part II: The IMO Instruments and the Human Element By Dr. Iliana Christodoulou-Varotsi 1. General οverview The IMO: its aims and purposes The human aspects of safety at sea The STCW Convention and related instruments Content and practical application The 1978 STCW Convention The 1995 revision The STCW Code Subsequent amendments The White List Documents issued on the basis of the STCW Convention Litigation (prevention and practice) Texts International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, Attachment 1 to the Final Act of the Conference-Resolution Annex Amendments to the annex to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, Attachment 3 to the Final Act of the Conference-Annex Resolution Resolution Resolution Resolution

15 XVI Contents Resolution Resolution Resolution Resolution Resolution Resolution Resolution Attachment 2 to the Final Act of the Conference-Resolution Annex Part A Annex Part Β The International Safety Management (ISM) Code Content and practical application Scope and purpose New responsibilities for shipping companies and masters The ISM Code in the European Union Litigation (prevention and practice) The obligation to implement and not only document Criminal liability Civil liability The Hague Rules The Hague-Visby Rules The Hamburg Rules Limitation of liability Texts International Safety Management (ISM) Code Resolution MSC. 104 (73) The International Ship and Port Facility (ISPS) Code Content and practical application Scope and purpose Entities invdved (contracting Governments, port facilities, shipping companies and ships) Maritime security in Europe Maritime labour issues Texts Attachment 1 to the Final Act of the Conference-Resolution Annex 1-Conference Resolution Annex Part III: The Memoranda of Understanding (MOUs) on Port State Control By Dr. Iliana Christodoulou-Varotsi 1. General overview Concept and legal foundations Port State control in the EU and the US Regional instruments in Europe and the Asia-Pacific region Content and practical application The Paris MOU Human element requirements Appeal and other procedures The Tokyo MOU

16 Contents XVII Human element requirements Appeal and other procedures The Black Sea MOU Human element requirements Appeal procedures Texts The Paris MOU The Tokyo MOU The Black Sea MOU Part IV: The European Union and the Protection of Maritime Labour By Dr. Iliana Christodoulou-Varotsi 1. General overview The maritime dimension of the EU The legal frame of maritime labour in the EU Substantive law Content and practical application The requirements of EC law The right of free movement of maritime labour, including masters and second mates The legal framework on seafarers competency Minimum level of training of seafarers Recognition of qualifications of seafarers The legal framework on seafarers hours of work The protection of maritime labour in the event of insolvency of the shipowner Texts Directive 2001/25/EC on the minimum level of training of seafarers Directive 2003/103/EC amending Directive 2001/25/EC Directive 2005/45/EC of the mutual recognition of seafarers certificates issued by the Member States and amending Directive 2001/25/EC Commission recommendation 1999/130/EC on ratification of ILO Convention 180 concerning reafarers hours of work and the manning of ships, and ratification of the 1996 Protocol to the 1976 Merchant Shipping (minimum standards) Convention Directive 1999/63/EC concerning the Agreement on the organisation of working time of seafarers concluded by the ECSA and the FST Directive 1999/95/EC concerning the enforcement of provisions in respect of Seafarers hours of work on board ships calling at Community ports Directive 80/987/EEC on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer Directive 2002/74/EC amending Directive 80/987/EEC Selected bibliography Selected links on the internet Index