The Maritime Labor Convention came into force on August 20th, 2013. That was also the date where the PSC of Countries which have ratified the Convention, were allowed to take enforcement actions with respect to vessels entering their ports. For the Marshall Islands, it was also the date where all of the ships in the Registry to which the Convention applies had to comply.
Until September 2013, 51 countries have ratified the MLC out of which in the 31 countries the Convention has already come into force. For the remaining 20 countries, the Convention will come into force 12 months after the date where the ratification was registered by the ILO. Being the MLC already into force and presuming that you have already overcome the first difficulties during the certification process of your vessels, I will therefore focus my presentation on the PSC inspection regime and that of Paris MoU which is more complicated.
First of all, the Convention contains a very powerful clause, that of 'no more favorable treatment'. This idea which is also found in IMO instruments, means that ships are not placed in a disadvantage because their flag has ratified the Convention. Therefore, the practical consequence comes clearly under the PSC provisions of the Convention where ships of all countries, irrespective of ratification status will be subject to inspection in any country that has ratified the convention and unfortunately to a possible detention if they do not meet the minimum standards.
Although PSC inspections under the Convention is voluntary or discretionary in character, if a country elects to carry out such an inspection, then shall carry them by authorized officers in accordance with the provisions of the Convention's Code and other applicable international arrangements governing PSC inspections in the Member. The main aspect of the Member's obligation is the need to ensure that the Port State has adequate number of qualified Officers trained under the MLC. In most cases, this will involve personnel that are already qualified under the existing international PSC arrangements developed in connection with the IMO Convention under regional MoU PSC. However, in some countries it is possible that these inspections will be carried out by authorized officers who are not necessarily authorized as a Port State Control officers ie. a maritime labor inspector.
The basic information which a PSC may look into in order to assess whether a vessel should be subject to MLC inspection or not, among others includes the following:: type of ship, age, flag, recognized organization, company, history - including previously reported or non- conformities, detentions. The Maritime Labour Certificate is to be considered prima facie evidence of compliance with MLC,2006, thus inspections in ports are to be limited to review the Certificate and the Declaration of Maritime Labour Compliance (DMLC). If documents are found valid and complete, then the inspection is over. A more detailed inspection may be carried out by PSC if the required documents (Maritime Labour Certificate, DMLC, Parts I and II) are not produced or maintained, are invalid, if there are clear grounds for believing that the working and living conditions do not conform to the MLC, 2006 requirements, if there are reasonable grounds for believing that the ship has changed flag for the purpose of avoiding compliance or if there is a complaint.
Paris MoU has already developed guidelines for PSC Officers to implement the practical issues of the Convention in the inspection regime. Only members of the Paris MoU which have ratified the MLC before 12 months are entitle to conduct PSC inspections. For the other Members who have not yet ratified the Convention or for those whose ratification has not come into force yet, enforcement of the Merchant Shipping Convention (ILO 147) or the protocol to the ILO 147, will prevail during an inspection. Therefore, if I could offer an advice, for those vessels whose flags may have not ratified the Convention yet, or if they have already done but yet to require a Maritime Labour Certificate to be issued, some kind of evidence either a voluntary statement of compliance or a complete DMLC part II against the Convention's part I could work as evidence that the shipowner has taken into consideration the requirements of the MLC and tries to comply with them. It goes without saying that the PSC must make all possible efforts to avoid a ship being unduly detained or delayed. Compensation must be paid for any loss or damage suffered from a ship found to be unduly detained or delayed, but the burden of proof is on the complainant.
Finally, I would like to make a reference to couple of issues that may be of some assistance. The DMLC part I contains possible exemptions or substantial equivalencies agreed with the vessel's flag state. In case there is a change of managemement and/or flag, although it can be alleged by previous shipowner that DMLC I and II are the company's property and have the right not to leave them onboard, it would be very useful if a copy of the previous DMLC part I could be retained , enabling all new parties concerned to review it. Another issue that has been discussed a lot is about the definition of "shipowner" . This could be a third-party manager even if another entity, which could be the (registered) owner of the ship, who is no longer the MLC, 2006 shipowner, is carrying out certain shipowner's MLC duties and responsibilities. Also, ILO has launched a very useful database providing the most up-to-date information on how the Convention is applied in national law and practices.
Above article is an edited version of Mr Thanos Theocharis's presentation during 2013 SAFETY4SEA Athens Forum
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