MLC 2006 Enforcement through Port State Control Inspections in Ports (MLC Regulation 5.2.1)

The Maritime Labour Convention, 2006 (MLC 2006) was adopted by the International Labour Conference of the International Labour Organization (ILO), under article 19 of its Constitution, during a maritime session in February 2006 in Geneva. The aim of the current article is to analyze MLC regulation 5.2.1 regarding inspections in ports. In other words it will be discussed how member states which have ratified the MLC will enforce it through Port State Control (PSC) procedures.

The MLC, 2006 does not apply directly to shipowners, ships or seafarers but it relies on the implementation by countries through their national laws or other measures. This means that countries which have ratified the convention are obliged to issue law and regulations in line with the MLC which should subsequently be implemented by the shipowners thus affecting ships and seafarers.

The enforcement of the MLC will be carried out through the Member States Flag Administration and the Port State Control. The Flag Administration is mainly related/engaged with the shipowners/vessel operators since the Flag is the authority issuing the vessels’ certificates required according to international regulations. PSC on the other hand is responsible for inspecting on regular basis vessels visiting the ports of the country the PSC is belonging. More specifically the Port State Control is a check on visiting foreign merchant ships to see that they comply with international rules on maritime safety, security, protection of the marine environment and seafarers living and working conditions onboard ships. The port State requires deficiencies to be rectified, and may detain the ship for this purpose. Port State Control is structured at three levels:

1. The international level. There are a number of international conventions. The primary conventions for PSC are the IMO Conventions (e.g. SOLAS, MARPOL, STCW, Load Line). The new MLC 2006 covers working and living conditions for seafarers.
2. The regional level. Established agreements for the conduct of port State controls. Examples are the ParisMoU in Europe, Black Sea MoU, Vina del Mar in Latin-America etc.
3. The national level. The national authorities assigned with the responsibility of inspecting merchant vessels. In Denmark for example Port State control inspections are carried out by the Danish Maritime Authority. In Great Britain, Port State control is carried out by inspectors from MCA and in Greece, the Department of Commercial Ship Inspection & Control under the Hellenic Coast Guard.

MLC 2006 aims to set out seafarers’ rights regarding decent conditions of work. Seafarers are defined as “all persons who are employed or are engaged or work in any capacity on board a ship to which the Convention applies”. Nevertheless it should be pointed out that a flag state may give a different definition of the term seafarer (e.g. a seafarer might be also a person working on oil platforms) thus broadening or narrowing the number of persons that may be affected by the MLC.

The MLC is considered to be the “fourth pillar” of the international regulatory regime for quality shipping, the other three key conventions are SOLAS, MARPOL and STCW.

MLC contains a set of global standards based on those already found in other maritime labour instruments (Conventions and Recommendations), adopted by the ILO between 1920 and 1996. The Convention “consolidates” and revises existing international law regarding maritime labour matters. The MLC will come into force this August (20 August 2013).

It should be pointed out that the MLC is considered as a major issue, at least until its official entry into force, which means that the months following August 2013, most probably, PSC authorities will have high in their agenda MLC inspections.

The MLC regulation 5.2.1 item 2 states that the MLC certificate serves “as prima facie evidence of compliance with the requirements of this Convention” and therefore “inspection in its ports shall, except in the circumstances specified in the Code, be limited to a review of the certificate and declaration.”

By analyzing the above one can easily come to the conclusion that the PSCO most of the times will only take a brief look on the MLC certificate and the DMLC Part II and if satisfied he will continue the inspection of the ship without taking a closer look to the “practical” implementation of the MLC regulations onboard. Therefore the PSCOs will not necessarily take a closer look on the living conditions onboard or if the seafarers’ wages are being paid in monthly intervals.

According to the MLC regulation 5.2.1 item 4 

• “inspections that may be carried out in accordance with this Regulation shall be based on an effective port State inspection and monitoring system…”

The majority of the PSCs worldwide are part of regional PSC MoUs which have established monitoring systems through specific procedures and data bases with the results of inspections per vessel. This measure increases the ability of the PSC to monitor vessels since information on vessels inspections are available to PSCOs and can be used as guidance on what to expect onboard the vessel.

Standard A5.2.1 item 1 states that a more detailed inspection will be conducted if the PSCO finds that

1. The required documents are not produced or maintained or are falsely maintained. Usually documents that are being falsified onboard (either intentionally or by mistake) are related to hours of work/rest but as explained later in this article such documents must be checked against the shipboard working arrangements and this may take additional time for the PSCO. Other documents that are usually fraudulent are the certificates of the seafarers but in this case such frauds are difficult to be detected by visual inspection.
2. There are clear grounds for believing that the working and living conditions on the ship do not conform to the requirements of the MLC. For example according to ILO guidelines for PSCO “clear grounds” may be indicated by examining reported deficiencies or non-conformities and any related plan of action to rectify the non-conformities. Such an action requires the PSCO to either take a look in the non conformities file onboard (a requirement of the ISM a code) or be already informed, from a previous port that the vessel visited, on non conformities that have been raised there and were left “open” to be closed under a given time window.
3. There are reasonable grounds to believe that the ship has changed flag for the purpose of avoiding compliance with this Convention. Any change or changes of flag should be noted in the documentation of the ship concerned, in particular its Continuous Synopsis Record, maintained under Regulation 5 of the SOLAS Convention, Chapter XI-1. There must be “reasonable grounds”, rather than “clear grounds”, to believe that the purpose of the change or changes was to avoid compliance. The PSCO could form an opinion on the purpose of changing flag by looking at any relevant inspection report. Significant outstanding deficiencies which have not been transferred to the new flag’s records may be reasonable grounds. The previous flag State may provide information, which could include difficulties it had in enforcing compliance. However, the shipowner’s representative may be able to inform the PSCO of legitimate reasons for changing flag which were not for the purposes of avoiding compliance. Of course looking inspections reports of the previous flag may take time to the PSCO especially if he is looking to identify outstanding deficiencies and it is known that the PSCO hasn’t got unlimited time to conduct inspections.
4. There is a complaint regarding working and living conditions on the ship. According to ILO guidelines for PSCO, there are two different ways a complaint can be made to the PSC. The first is onshore complaints to Port State and there are specific guidelines and procedures to be followed (MLC Regulation 5.2.2). The second is complaints made during the PSCO inspection onboard where according to item 3 of Standard A5.2.1 the inspection shall generally be limited to matters within the scope of the complaint. In this case it is left to the PSCO to investigate the nature of the complaint. If the complaint is related to the 14 items of the DMLC then a further inspection should be conducted. If on the other hand the complaint is irrelevant to the DMLC items of compliance then onshore complaint procedures are to be followed. Regardless of the path that will be followed for the complaint it is left to the PSCO to investigate or not the complaint and take further actions or not. In other words although the PSCO is not acting as a judge he is the one whose action will initiate a procedure to resolve the problem or not. In this respect PSC can be very efficient if complaints are to be given attention and not neglected, since further incompliance of the vessel may be investigated and identified.

It must be noted that certain non-conformities with the MLC, 2006, may have already been noted as also constituting non-compliance with a requirement of the SOLAS or STCW conventions, or noted by the PSCO on the occasion of an inspection in connection with the IMO conventions. This fact increases the effectiveness of MLC enforcement from PSCs since a non conformity may be related to more than one international regulatory standard proving extended incompliance of the vessel.

According to Standard A5.2.1 item 4 when the PSCO identifies deficiencies related to the MLC he must at first resolve the issue by bringing it to the attention of the vessel’s Master giving specific guidelines and time lines for its rectification. Furthermore the PSCO may notify the vessel’s flag state and inform the next port of call regarding the issued deficiency. In this way the efficiency and the effectiveness of the PSC enforcement is increased due to the fact that the status of a non conformity is known to authorities other than the PSC authority issuing the non conformity and therefore more stakeholders are involved in the matter (on the basis that someone involved in the procedure is willing to actually resolve a deficiency and not let it pass by).

Item 5 of Standard A5.2.1 goes a little bit further giving the right to a PSC authority to forward a vessel’s PSC inspection, along with any replies from competent authorities, to the Director-General of the International Labour Office. At this point the MLC regulation further enhances the effectiveness of the PSC since specific issues (deficiencies issued during vessel’s inspections) can be addressed to international authorities such as the ILO.

In case a vessel is prevented by a PSCO to proceed to sea due to serious non conformities as defined in items 6a and 6b of MLC Standard A5.2.1 then the Flag is to be notified in order to attend the vessel and the implementation of the corrective action plan thus making the vessel’s flag administration also responsible for the corrective action plan of the issued deficiencies.

MLC Standard A5.2.1 item 7 refers to when a PSCO may detain a vessel. In this respect the ILO PSCO guidelines have been issued providing a comprehensive list of items explaining when a vessel may be detained and can be summarized under the following two categories:

1. the conditions on board are clearly hazardous to the safety, health or security of seafarers
2. the non-conformity or non-conformities found constitute a serious or repeated breach of the requirements of the Convention (including seafarers’ rights, whose violation is relevant for the consideration of the seriousness of a non-conformity

Regarding the payment of wages the ILO guidelines specifically state that a vessel may be detained for:

• repeated cases of non-payment of wages or the non-payment of wages over a significant period or the falsification of wage accounts or the existence of more than one set of wage accounts

In this respect the PSCO is able to detain a vessel on the grounds of the seafarers not being paid in accordance with the applicable SEA and at least once per month. In order for the PSCO to be able to identify such a deficiency he should be able to obtain information from the following:

1. The SEA and relevant wages documentation, such as the payroll records.
2. Relevant documents showing service charges and exchange rates applied to any remittances made to the seafarers’ families or dependants or legal beneficiaries at their request.
3. Relevant documents to confirm the payment of wages including the requirement that a monthly account (such as a wage slip) is provided to the seafarers.
4. Interviews, in private, with seafarers to confirm compliance with requirements on the payment of wages.

The PSCO therefore although he cannot act as a judge regarding the amount of wages of a seafarer he can nevertheless detain the vessel until the seafarers are paid according to MLC regulations.

Regarding any possible MLC related deficiencies under which the PSCO may detain a vessel, the ILO guidelines mentions specific examples of deficiencies. Below we present a summary of such deficiencies:

Seafarers under the age of 16 (Standard A1.1, paragraph 1). The PSCO will have to check the seafarers documents which if fraudulent it will be difficult to be identified by visual inspection only. The PSCO in a sample of 10 certificates for example, may be unable to identify any of them as fake if he doesn’t cross check the certificates identity number with the data base of the authority that issued the certificate, something which is not always practically possible. Nevertheless there are specific signs which may lead a PSCO to suspect a certificate as fake.

The employment of any seafarer under the age of 18 in work likely to jeopardize their health or safety (Standard A1.1, paragraph 4) or in night work (see Standard A1.1, paragraphs 2 and 3). Here the PSCO will have to take a look the shipboard working arrangements. Of course identification of such a deficiency would be easier if a complaint is to be made to the PSCO.

Insufficient manning (Regulation 2.7 and Standard A2.7). Such deficiencies can be identified by reviewing the Safe Manning Document (SMD) and the shipboard working arrangements. It should be mentioned here that vessels that have been detained in the UK included in their PSC inspections reports deficiencies related to safe manning (e.g. in August 2012 and October 2012).

Repeated cases of seafarers without valid certificates confirming medical fitness for duties (Standard A1.2), or not in possession of valid SEAs (Regulation 2.1, paragraph 1).

Seafarers repeatedly working beyond maximum hours of work/rest (Standard A2.3, paragraph 5a & 5b). The PSCO can efficiently find such deficiencies if he checks thoroughly the rest/work hours records and shipboard working arrangements documents. It must also be mentioned that the subject of excess hours of work has been brought to the courts in cases where the seafarer claimed that his health has deteriorated due to excessive hours of work onboard.

• Seafarer claim on court regarding fatigue, United States district court Southern district of Florida Case no. 11-21589-civ-altonaga/Simonton

Perhaps one of the most easily identifiable deficiencies related to MLC requirements that a PSCO can make on an inspection is one regarding hours of work/rest. Onboard a vessel in order to properly record the hours of work/rest two documents are being used:

1. A table of working arrangements or work schedule. This document is being used in order to know onboard the vessel where a seafarer has duty and during what hours of the day
2. Up to date records of work or rest, for each seafarer serving on the ship. This document records how many hours a seafarer worked each day of the month.

Both records contain information on where a seafarer had duty and how many hours he worked. Both documents (especially document work/rest hours record) may be used in order to calculate payable overtime hours of seafarers.

Of course reliance on a simple checking of records of hours of work and rest is not an adequate method of inspection because, as with seafarers’ certificates of competency, such records may be falsified.

But if the PSCO is given time to cross check the documentation, it may be easy to identify a deficiency by simple checking the information contained in the shipboard working arrangements document against the information contained in the hours of work/rest document. Furthermore the PSCO doesn’t need to look the working hours of all the seafarers onboard but only the ones of the Master, the Chief Officer or the Chief Engineer.

Prior to MLC 2006 it was common practice to under-record excess hours of work and the crew was unwilling to complain (because of fears of victimization). Two illustrative notes from a study conducted a few years ago (2006) by SIRC(UK), SSPA (SE) and DNV are the following:

1. ‘In his office, the captain talked straightforwardly about the ISM code. Only he and the mate could take a watch, so they naturally worked more than the maximum hours and routinely under-reported their hours.’
2. ‘When we first sat down to look at the paperwork, the mate (who looked desperately tired) said he’d not got to sleep until 2.00 this morning. [Inspector]: “Are you complaining about the hours chief?” Mate: “No I am not complaining, we are just having a conversation here”. Laughter all round.’

Inadequate ventilation and/or air conditioning or heating (Standard A3.1, paragraph 7). Such deficiencies can be identified by PSCO since it is related to machinery maintenance onboard the vessel and the effect of them not working properly can be “felt” by the PSCO once in the master’s office. Furthermore in order to see if the ventilation is working properly the PSCO needs only to ask the chief engineer to operate the system and see if air is being circulated with the master’s office or the vessel meeting room.

Poor standard of ventilation and air movement resulting from unacceptable alterations

Repeated cases of non-payment of wages (Standard A2.2, paragraphs 1 and 2). Such deficiencies can be identified if the PSCO takes a closer look on payrolls, the SEA, or by an interview with the crew, provided that the crew is willing to make a complaint in case they are not paid. The problem with repeated case of non-payment is the fact that such cases may also result in the abandonment of the vessel and her crew. Cases were seafarers are not get paid for over three months and are even abandoned are known to the maritime industry (Such cases have been highlighted by Seafarers Rights International, Case 1, Case 2) and are a problem which usually cannot be easily resolved mainly due to the fact that shipowners cannot be easily prosecuted since a variety of stakeholders are involved and of course no port authority wants an abandoned vessel with unpaid seafarers berthed within their port. On the other hand the fact that the PSCO is given the authority to detain the vessel gives the chance to highlight the problem at a different level, not to mention the fact that the case may eventually find its way to the Director-General of the International Labour Office.

Accommodation that is unhygienic or where equipment is missing or not functioning (Standards A3.1, paragraph 11, and A3.2, paragraph 2; Regulation 4.3, paragraph 1). Such deficiencies can be identified by taking a walk around the accommodation and observing the overall condition of the cabins, ventilation, condition of walls, condition of toilets etc. Ships that have been constructed before the date the MLC enters into force (which is the majority of the merchant fleet at this moment) should prove compliance with the Accommodation of Crews Convention (Revised), 1949 (No. 92), and the Accommodation of Crews (Supplementary Provisions) Convention 1970 (No. 133). This conformance may take the form of a certificate confirming compliance with abovementioned conventions. Moreover proof of frequent inspections of the vessel’s accommodation should be checked by the PSCO as evidence of compliance. Such evidence can either be records such as an accommodation inspection form conducted at specified intervals or an entry in one of the vessel’s Log Books.

Top photo – Poor condition off ceiling
Bottom photo – Unacceptable sanitary facilities

In this particular case the occupant of the cabin tried to dry his laundry hanging them all around the cabin

Unacceptable sanitary facilities, dirty and with leakages

Left – Standard acceptable sanitary facilities
Right – Clogged toilet

Quality and quantity of food and drinking water not suitable for the intended voyage (Standard A3.2, paragraph 2). The PSCO will have to make a visual inspection of catering facilities, including galleys and storerooms, to check that they are hygienic and fit for purpose. One important aspect of this item is the provision of evidence concerning how drinking water quality is monitored and the results of such monitoring (e.g. samples are being taken at regular intervals analyzing the quality of the water using appropriate equipment, certificates from potable water supplier showing chemical analysis of the provided water). The PSCO may also check menu plans along with food supplies and storage areas.

Well maintained galley

Food provision stores disorganized and in unhygienic conditions

Medical guide or medicine chest or medical equipment, as required, not on board (Standard A4.1, paragraph 4(a)). The PSCO can make a visual inspection to confirm that the ship is equipped with sufficient medical supplies including a medicine chest and equipment, including either the most recent edition of the International Medical Guide for Ships or a medical guide as required by national laws and regulations. Moreover the PSCO may check for evidence that medical report forms are carried on board the ship and of course it should be expected that medical reports have been completed when required (for example the fact that no medical report forms have been completed or forwarded to the company should draw the attention of the PSCO).

Conclusions

Regarding the enforcement of the MLC regulation 5.2.1 problems may arise for a PSCO on whether to inspect a vessel for conformity with the flag State’s national requirements or with the MLC convention itself. Although deviations from Flag to Flag may arise through implementation of Part B which is not to an area of inspection for the PSCO, problems may arise when a flag provides an exemption for example for the hous of work/rest. In these cases the PSCO should either be aware of the exemption or be presented by the Master with the exemption from the Flag Administration.

Another issue that should be highlighted is complaints that are to be made by seafarers to PSC either during vessel inspections or through onshore complaints procedures. The ability of the seafarer to make a complaint to a PSC by definition seems to solve a lot of problems for the enforcement of MLC but when it is put to practice problems may arise. For example the PSCO during his first visit onboard a vessel might be unaware or unable to identify (due to the fact that he must accept the MLC certificate as prima facie evidence of compliance) whether fresh water onboard is being provided by appropriate suppliers and if there are appropriate maintenance procedures to keep the water potable. A seafarer is knowledgeable of the fact that potable water smells from time to time and tastes strangely and therefore makes a complaint to the PSCO who attends the matter and raises a deficiency. The shipowner then rectifies the deficiency and at the next port he either dismisses the seafarer who made the complaint or when the seafarer’s employment agreement expires he just doesn’t renew it. Supposedly complaints are to be handled in such a way so as to protect the identity of the person making the complaint but what if the shipowner decides to dismiss the whole crew due to the complaint (especially if the vessel was detained) or just to change the entire crew at the end of the voyage?

Port state control (PSC) inspections will be the key enforcement tool for on-going compliance and are most likely to be conducted in accordance with the ‘Guidelines for port state control officers carrying out inspections under the Maritime Labour Convention 2006’. These guidelines give the inspectors an overview of the type of deficiencies which constitute non-compliance under the Maritime Labour Convention 2006. The following are examples of non-compliance and actions that may be taken by PSC and may serve only as reference since the actual practices to be followed for each deficiency remains to be seen once the MLC comes into force.

Once the MLC-2006 comes into force it would be logical to assume that various Port State Control regimes would be instigating Concentrated Inspection Campaigns, (CIC) to verify compliance.

Finally, an issue that should be pointed out is the attitude (at least up until a few years ago) towards deficiencies related to labour conditions onboard merchant vessels, that is best described by the following extract from the “Study on enforcement of maritime labour standards on board ships and involvement accidents” developed by SIRC(UK), SSPA (SE) and DNV.

It is widely accepted that enforcement of labour standards was not normally an inspection priority. As one UK inspector put it: ‘the emphasis on inspections tends to focus principally around prevention of major accidents, safety of the ship and pollution prevention to minimise loss of life, rather than to prioritise on crew living conditions, etc’. Priority would only be given to labour standards in the instance of a crew complaint (and these are rare because of job insecurity), or in the case of an Concentrated Inspection Campaign (CIC).

Prior to the implementation of the MLC there was a perception by the PSCO’s that attempts to enforce labour standards were more likely to lead to complaints from operators. Some inspectors in one maritime administration were under the erroneous impression that if the visiting ship’s flag State had not ratified ILO 147, then port State could not enforce it.It was a commonly held view that the threat of detention was a necessary sanction to maintain living and working standards for seafarers. Once Spanish inspector commented:

• ‘I had to detain a Turkish-flagged ro-ro because there was not enough lighting on the car deck. I spoke to the Master and he said they could not get spare light bulbs as it was a discontinued model. The day after detaining the ship they received on board a pallet with dozens of spare lights’.

However, inspectors in more than one maritime administration were uncertain how much backing they would get from ‘head office’ for rigorous attempts to enforce labour standards. One inspector had been refused permission to detain a ship for the treatment of cockroach infestation. Another said that an attempt to detain a ship on labour standards alone would lead to ‘extensive communication with head office’. A third inspector said he had ‘had a lot of pressure from my boss’ after he had listed a broken washing machine as a detainable deficiency, even though there were deficiencies in ship standards also listed. The majority of inspectors interviewed for the study on enforcement of maritime labour standards on board ships and involvement accidents, stated that they had never detained a ship on the basis of deficient labour standards alone (it is assumed that respondents were discounting detentions because of inadequate crew certification, a commonly reported deficiency). However, in contrast, inspectors in one country reported that their seniors were entirely supportive of enforcement of labour standards and been happy to publicise detentions made solely because of defective bedding and because of insufficient stores of food.

Some industry stakeholders believed that port State control operated inconsistently between inspectors, between ports and between countries. One senior manager interviewed produced a series of files on alleged wrongful detentions suffered by his company’s vessels (most of them in ports outside the EU).

There was plenty of evidence from the ship inspections shadowed in the study that inconsistencies in practice were also evident in respect of serious deficiencies being frequently missed by inspectors. Two examples are presented below:

• A vessel was detained in a UK port on July 2003 with 22 deficiencies (including serious deficiencies in communications equipment, problems with the lifeboats and lifeboat davits, deficient fire and boat drills, cockroach infestation, and insufficient recorded hours of rest). The ship was a 23 year-old bulker, not currently requiring a twelve-monthly expanded inspection, and despite its age, not qualifying for a mandatory inspection because its Target Factor was only 11. The reason the ship had such a low Target Factor was that its previous inspection record was spotless, with only no deficiencies recorded in four previous inspections since 2000. The implication is that poor inspection practice in certain ports can make sub-standard ships less visible targets for inspection on subsequent port calls, this invisibility being encouraged by the systematic promotion of other targets by the Paris MoU mandatory and expanded inspection system.
• A vessel inspected following a complaint by the pilot and detained in a UK port with ten deficiencies on June 2003, had been inspected prior to the original detention only eight days previously in Copenhagen, with zero deficiencies being recorded! Its UK detention then alerted the port authorities on its subsequent port calls and it then went on to suffer a further remarkable seven detentions in European ports in the next thirteen months.

As the MLC entry into force date is getting nearer, the Officer of the Watch blog has taken the initiative to conduct a very simple poll on what industry stakeholders (seafarers, office personnel, PSCOs, manning agents etc) believe about the overall outcome of the MLC implementation on seafarers’ life onboard. Will the MLC improve the working conditions onboard merchant vessels?

The results of the poll are presented in the following Officer of the Watch article:

• MLC 2006? A Ship Without a Rudder and Compass? Time Will Tell…

Additional reading materal and information regarding MLC 2006 Enforcement through Port State Control Inspections in Ports can be found in the following references:

1. Maritime Labour Convention 2006 (MLC) (ILO, 2006)
2. MLC 2006 FAQ (ILO, 2012)
3. MLC 2006 FAQ (UK P&I, 2012)
4. Guidelines for PSCO carrying out inspections under the MLC, 2006 (ILO, 2012)
5. Study on enforcement of maritime labour standards on board ships and involvement accidents (SIRC(UK), SSPA (SE), DNV,2006)
6. The MLC 2006 (The Standard P&I, 2011)
7. The Maritime Labour Convention 2006 (M. L. McConnell, D. Devlin and C. Doumbia-Henry, 2011)
8. Unlawful practices associated with certificates of competency: Reports of fraudulent certificates (IMO STW 42/4, 2010)
9. ITF Guide for Seafarers to the ILO Maritime Labour Convention, 2006
10. UK Detained Vessels October 2012
11. UK Detained Vessels August 2012
12. Seafarer claim on court regarding fatigue, United States district court Southern district of Florida Case no. 11-21589-civ-altonaga/Simonton
13. Stranded, lost and bereft at sea, Seafarers’ Rights NGO
14. Left high and dry, Seafarers’ Rights NGO
15. Maritime Law Virtual Database