Michael Agius January 20 2021 Maritime Labour Convention amendments incorporated into Maltese law Fenech & Fenech Advocates | Shipping & Transport - Malta Michael Agius Shipping & Transport Maltese lawMLC and its amendmentsCommentAmendments to the Maritime Labour Convention (MLC) 2006 recently came into force after having been adopted in 2018. Malta, as a signatory to the MLC, implemented the changes into domestic law on 18 December 2020, with said changes having effect as of 26 December 2020. As one of the largest ship registries in the world, these changes will have a significant impact on the world's shipping workforce.Maltese lawThe MLC was transposed into Maltese national law and introduced as the Merchant Shipping (Maritime Labour Convention) Rules, Subsidiary Legislation 234.51.Under Maltese law, all employment relationships are governed by the Employment and Industrial Relations Act (EIRA), Chapter 452 of the Laws of Malta, and its subsidiary legislation. Although the rights and obligations of all employees are defined in the EIRA, it is the EIRA itself which states that some provisions within it do not apply to seamen.(1) It is thus understood that when referring to seafarers and their rights or obligations, the Merchant Shipping Act (MSA), Chapter 234 of the Laws of Malta, and its subsidiary legislation should be applied first as the lex specialis, followed by the EIRA should the MSA be silent on specific matters.MLC and its amendments The new amendments transposed into Maltese law can be divided into two parts introduced in the form of standards:the first refers directly to seafarers' employment agreements; andthe second refers to wages.That said, a third amendment introduced in the form of a guideline within the MLC, which refers to specific entitlements, was not incorporated into the Merchant Shipping (Maritime Labour Convention) Rules. As a common denominator, these amendments deal directly with the threat of piracy and armed robbery, which has been on the rise in recent years.Prior to these amendments, there was no definition of 'piracy' or 'armed robbery against ships' within the rules or the MSA. The only definition of 'piracy' within Maltese law was found within the Criminal Code(2) and was introduced in 2009. This definition is almost identical to that given in the United Nations Convention of the Law of the Sea 1982.These terms have now been introduced directly into the Merchant Shipping (Maritime Labour Convention) Rules under Article 2(1). Specifically, 'armed robbery against ships' has been defined as:any illegal act of violence or detention or any act of depredation, or threat thereof, other than an act of piracy, committed for private ends and directed against a ship or against persons or property on board such a ship, within a State's internal waters, archipelagic waters and territorial sea, or any act of inciting or of intentionally facilitating an act.On the other hand, 'piracy' has been given "the meaning assigned to it by the United Nations Convention on the Law of the Sea, 1982".Seafarers' employment agreementsUnder Maltese law, seafarer's employment agreements are regulated by Part III of the Merchant Shipping (Maritime Labour Convention) Rules – specifically, Articles 20 to 28. The amendments to the MLC state:that a seafarer's employment agreement shall continue to have effect while a seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships, regardless of whether the date fixed for its expiry has passed or either party has given notice to suspend or terminate it.(3)This has been incorporated verbatim into the rules as Article 28A.There are no similar provisions to the abovementioned one in the EIRA or its subsidiary legislation.WagesPart III of the Merchant Shipping (Maritime Labour Convention) Rules also regulates wages and when and how these should be paid to seafarers (Articles 49 to 67). Article 67A has been introduced and states as follows:Where a seafarer is held captive on or off the ship as a result of acts of piracy or armed robbery against ships, wages and other entitlements under the seafarers' employment agreement or relevant collective bargaining agreement, including the remittance of any allotments as provided in rule 64 (1), shall continue to be paid during the entire period of captivity and until the seafarer is released and duly repatriated or, where the seafarer dies while in captivity, until the date of death.(4)The introduction of this obligation for employers codifies rights for seafarers which were not previously clear under Maltese law, thus strengthening the already privileged position of seafarers' wages by extending the obligation to these situations out of their control.Notably, under the EIRA, any illegal deductions to an employee's wages constitutes an offence on the part of the employer. The introduction of this amendment therefore clarifies any doubt which may have been present in situations where a seafarer could not have performed their duty due to piracy or armed robbery. It also enforces the understanding that a situation such as this could never be considered as being a form of abandonment of work.EntitlementCuriously, the third and final amendment, which found its way into the MLC in the form of a guideline, relates to entitlements and was not incorporated into the Merchant Shipping (Maritime Labour Convention) Rules. The guideline states as follows:The entitlement to repatriation may lapse if the seafarers concerned do not claim it within a reasonable period of time to be defined by national laws or regulations or collective agreements, except where they are held captive on or off the ship as a result of acts of piracy or armed robbery against ships.(5)Notably, while Part A of the MLC contains standards which are mandatory to all signatories of the MLC, Part B contains guidelines, such as the aforementioned one, which are non-mandatory. This begs the question as to whether the Maltese courts will take this guideline into consideration when contemplating prescriptive periods or the quantification of damages in situations regarding the repatriation of seafarers. However, this would be unlikely, and perhaps the only relevant time periods would be the general prescriptive periods under Maltese law. Where prescription is concerned, from a Maltese law perspective, the general rules would apply – namely:a two-year prescriptive period for actions in tort; anda five-year prescriptive period for any contractual claims.CommentIt is refreshing to see that such protection will now be given to seafarers including those employed on Maltese-flagged vessels – especially those who regularly traverse areas which may be considered high-risk zones.Over the coming months, it will be interesting to see how these new provisions will be interpreted by the Maltese courts and tribunals and also whether these could lead to the consideration of similar rules or laws to be implemented in instances of agreements with crew engaged on ships which do not fall within the scope of the Merchant Shipping (Maritime Labour Convention) Rules (eg, fishing vessels, small ships, yachts in non-commercial use and warships or naval auxiliaries), or more widely, in other employment agreements in other industries where similar risks could exist.For further information on this topic please contact Michael Paul Agius at Fenech & Fenech Advocates by telephone (+356 2124 1232) or email ([email protected]). The Fenech & Fenech website can be accessed at www.fenechlaw.com.Endnotes(1) Article 39 of the EIRA states as follows:The provisions of article 36 shall not apply in respect of seamen employed on ships under the provisions of the Merchant Shipping Act; and in the event of any conflict between any of the provisions of the said Act and any of the provisions of this Act, the former shall apply.(2) Criminal Code, Chapter 9 of the Laws of Malta.(3) Standard A2.1 – Text of the amendments adopted on 27 April 2018, third meeting of the Special Tripartite Committee established by the governing body in accordance with Article XIII of the Maritime Labour Convention 2006, as amended (MLC 2006).(4) Standard A2.2 – Text of the amendments adopted on 27 April 2018, third meeting of the Special Tripartite Committee established by the governing body in accordance with Article XIII of the Maritime Labour Convention 2006, as amended (MLC 2006).(5) Standard B2.5.1 – Text of the amendments adopted on 27 April 2018, third meeting of the Special Tripartite Committee established by the governing body in accordance with Article XIII of the Maritime Labour Convention 2006, as amended (MLC 2006).