The Maritime Labour Convention, 2006 (“MLC 2006”) was adopted by the International Labor Organization (“ILO”) at the 94th Maritime Session of the International Labour Convention (“ILC”) on February 7, 2006, and will enter into force on August 20, 2013. The United States has not ratified MLC 2006; however, on February 11, 2013, the Coast Guard published a notice (“MLC Notice”) in the Federal Register announcing the availability of a draft Navigation and Vessel Inspection Circular (“NVIC”) setting forth proposed Coast Guard policies and procedures regarding the inspection of U.S. vessels for voluntary compliance with MLC 2006. http://www.gpo.gov/fdsys/pkg/FR-2013-02-11/pdf/2013-02956.pdf. The primary purpose of the NVIC is to assist U.S. vessels in avoiding port State control actions in foreign ports of countries that have become party to MLC 2006 by providing for a voluntary inspection program mechanism for U.S.-flag vessels resulting in the issuance of a Statement of Voluntary Compliance, Maritime Labour Convention (“SOVC-MLC”).
MLC 2006 is an international agreement that will essentially revise and replace, upon its effective date, most of the existing ILO maritime labor instruments and recommendations adapted since 1920, and consolidate those labor instruments into one globally applicable and uniformly enforceable legal instrument.
MLC 2006 encompasses and updates the requirements of a number of existing ILO Conventions with the aim of establishing a comprehensive international instrument governing the working and living conditions for seafarers and creating conditions of fair competition for shipowners. With these principles in mind, MLC 2006 establishes specific standards and detailed guidance as to how to implement these standards at the national level though its Articles, Regulations, and Code.
MLC 2006 Regulations and the Code are organized into general areas under five Titles, each of which contains groups of provisions relating to a particular right or principle or enforcement measure, as follows: (1) Title 1 - Minimum requirements for seafarers to work on a ship, which addresses minimum age, medical certificates, training and qualifications, recruitment, and placement; (2) Title 2 - Conditions of employment, which addresses employment agreements, wages, hours of work and rest, leave entitlement, repatriation, compensation in the event of loss of a ship, manning levels, career and skill development, and seafarer employment opportunities; (3) Title 3 - Accommodation, recreational facilities, food and catering, which addresses standards for accommodation, recreational facilities, and food and catering; (4) Title 4 - Health protection, medical care, welfare and social security protection, which addresses medical care, shipowner’s liability, health and safety and accident prevention, access to shore welfare facilities, and social security; (5) Title 5 - Compliance and enforcement, which addresses flag State responsibilities, port State responsibilities, and labor supply responsibilities.
MLC 2006 mandates that commercial vessels that are 500 gross tons and above, whether publicly or privately owned, engaged on international voyages, must demonstrate compliance with the requirements of MLC 2006 by maintaining a Maritime Labour Certificate, to which is annexed a Declaration of Maritime Labour Compliance (“DMLC”) issued by its flag administration. The Maritime Labour Certificate and DMLC must state the specific national requirements implementing MLC 2006 for the working and living conditions of seafarers and the specific measures adopted by the shipowner to ensure compliance with the requirements for the ship. A copy of this certification must be maintained on-board the vessel at all times. Failure to maintain this certification will expose those vessels to potential port State control actions.
Vessels operating under a flag of a country that is not a party to MLC 2006 are also exposed to potential port State control actions where that vessel calls at a port of a country party to MLC 2006. This is because, in addition to establishing minimum requirements for seafarer working conditions and inspection, MLC 2006 also provides for enforcement by countries that are a party to MLC 2006 under the principle of “no more favorable treatment” for ships of a non-party country. Generally, this means that a party to MLC 2006 may take port State action, including potential detention of the vessel, to ensure that a shipowner and operator of a vessel operating under a flag of a non-party is not treated more favorably than a vessel that operates under the flag of a country that is a party to MLC 2006.
Although MLC 2006 was adopted unanimously in 2006, there were two outstanding requirements at that time needed to enable MLC 2006 to come into effect. The first requirement was that at least thirty ILO member countries become party to MLC 2006 and the second requirement was that the ratifying countries represent thirty-three percent (33%) of the world’s gross shipping tonnage. While the later requirement was met in 2009, the former was only recently satisfied in August 2012 with ratification by Russia and the Philippines. At this time, approximately thirty-nine countries have ratified MLC 2006.
Draft Guidelines for U.S. Vessels
The United States has not ratified MLC 2006, and as a result, the Coast Guard will not enforce compliance with MLC 2006 on U.S. vessels or foreign vessels while navigating within U.S. waters. Despite the fact that the United States has not ratified MLC 2006, U.S.-flag vessels are exposed to potential port State action under the “no more favorable treatment clause” as discussed above under the background section. In light of this potential risk, which could include detention at a port in a country that is a party to MLC 2006, the Coast Guard encourages shipowner and operator compliance with MLC 2006. To that end, the U.S. Coast Guard published the MLC Notice.
The NVIC, titled “Guidance Implementing the Maritime Labour Convention, 2006,” clarifies that the NVIC is intended to provide guidance for Coast Guard marine inspectors, Recognized Class Societies (“RCS”), and U.S. vessel owners/operators for meeting the provisions of MLC 2006 and to establish a voluntary inspection program for vessel owners/operators who wish to document compliance with the requirements of MLC 2006. Consistent with MLC 2006, the Guidance applies to ships greater than 500 gross tons on international voyages as well as U.S. commercial vessels less than 500 gross tons, including uninspected commercial vessels, engaging in international voyages to ports of MLC 2006 party nations. Vessels that do not operate in ports of those countries that are a party to MLC 2006 are not required to be in compliance with MLC 2006. The MLC Notice and draft NVIC may be reviewed at http://www.regulations.gov/#!docketDetail;D=USCG-2012-1066.
Similar to the Maritime Labour Certificate and DMLC issued by parties to MLC 2006, the Coast Guard intends to issue a SOVC-MLC to vessels demonstrating compliance with MLC 2006. Shipowners and operators of vessels that fall within the scope of the NVIC are not obligated to obtain a SOVC-MLC certificate, but may voluntarily request inspection to obtain this certificate. The Coast Guard has authorized RCSs to conduct MLC 2006 compliance inspections and issue SOVCs at the request of vessel owners and operators.
Generally, MLC 2006 establishes fourteen areas that are subject to mandatory compliance for certification and the issuance of certificates. These areas that must be inspected for compliance include: minimum age; medical certification; qualifications of seafarers; use of any licensed or certified or regulated private recruitment and placement services; seafarers’ employment agreements; payment of wages; hours of work and rest; manning levels for the ship; accommodation; on-board recreation facilities; food and catering; on-board medical care; health and safety and accident prevention; and on-board complaint procedures. Similar to the MLC 2006 certificate, an inspection conducted by the RCS for the purposes of issuing a SOVC-MLC will confirm compliance with these fourteen points.
The format to the SOVC-MLC will be consistent with the MLC certificate provided in the MLC Code and will be supplemented with a SOVC Declaration of Maritime Labour Compliance, which will reference the applicable U.S. federal rule or regulation applicable to the relevant mandatory area of compliance. To the extent that there is no applicable U.S. rule or regulation, the Coast Guard will defer to the applicable MLC 2006 standard. In addition to stating the current U.S. laws and regulations for the relevant mandatory areas of compliance, the SOVC-MLC must also state the measures adopted by the shipowner or operator to ensure compliance with the laws and regulations.
Once the SOVC-MLC is issued, it must be posted on the vessel in a visible location accessible by the seafarers. The certificates will be valid for a period not exceeding five years or until there has been a material change in circumstance. Foreign country port State control authorities are not obligated to accept the Coast Guard SOVC-MLC, and unless the United States becomes a party MLC 2006, the Coast Guard has no enforcement authority to certify vessels as compliant with the MLC.
At this time, it is unclear how various port State control authorities will implement MLC 2006 requirements when it goes into effect on August 20, 2013. Regardless of whether the United States becomes a party to MLC 2006, however, it behooves U.S.-flag owners and operators to take advantage of this voluntary program to obtain a Coast Guard SOVC-MLC prior to August 20, 2013. Although there is no guarantee that a particular port State control authority will honor the Coast Guard SOVC-MLC, taking action now to schedule an inspection by an owner’s or operator’s RCS to confirm compliance with the mandatory areas of compliance under MLC 2006, will minimize the chances of a port State control authority taking adverse action against a U.S.-flag vessel once MLC 2006 goes into effect.