Maritime Labour Convention 2006- a preliminary assessment on its efficiency and effectiveness on Port State Control

Andreas Giakoumelos

Maritime Labour Convention 2006- a preliminary assessment on its efficiency and effectiveness on Port State Control,  by Andreas Giakoumelos*

In 1992 the House of Lord Select Committee said that “Shipping is an industry occupied with things rather than people”[1]. The Maritime Labour Convention 2006-adopted in the International Maritime Conference of the International Labour Organization in February 2006[2]-is going to change that. References to it as bills of rights’ for the world’s seafarers and as the ‘fourth pillar of maritime legislation’ (SOLAS, STCW, MARPOL) prove that it is not just an ordinary ILO convention.

The Convention consolidates and updates more than 68 existing Conventions, setting out rights and responsibilities for working and living conditions of seafarers. The Convention has not come into force yet as it had to be ratified by at least 30 member States with a total share in the world gross tonnage of ships of 33 per cent. This was reached on 20 August 2012, meaning that it will come into force on 20 August 2013[3]. However, Port State Control inspections under this Convention will start in 2014.

Under Regulation 5.1.1[4] and 5.2.1[5] each ILO Member State ratifying this new Convention has to establish an effective system for the inspection and certification of maritime labour conditions in accordance with the requirements of the Convention. Specifically, Regulation 5.2[6] provides the Port State responsibilities. This article sets out to analyze critically the efficiency, limitations and effectiveness on Port State Control in relation to the enforcement of seafarers’ rights.

Efficiency-Limitations on Port State Control under the Maritime Labour Convention 2006

The efficiency of the Inspection in Ports under the regime of Maritime Labour Convention is an equation which will be analyzed by taking into consideration the time needed, the costs (money) and the amount of people needed for carrying out such an inspection. To note at this point that efficiency differs from effectiveness, as the former is “a measurable concept, quantitatively determined by the ratio of output to input and in general describes the extent to which time, effort or cost is well used for the intended task or purpose”[7]. On the other hand, effectiveness is a relatively vague, non-quantitative concept, mainly concerned with achieving objectives and can be regarded as “the capability of producing a desired result”[8].

The first variable of the equation is time. Time is closely related to costs following the popular cliché “Time is money”. For that reason it is very significant to analyze whether the new Convention will reduce or will increase the time needed for an inspection. In order to find it out it a step by step examination of an inspection under the regime of the Convention is essential.

When an inspector is on board, he has to check a list of specific documents[9]. After the 20^th of August 2013 he will need to check the additional requirements of the Maritime Labour Convention. A presumption on this change is that in practice an inspector may need more time to carry out an inspection and secondly he may have more reasons to find a ship not complied with the necessary requirements, which may mean delay on its voyage or even detention in case of serious breach. The inspection from ship to ship differs because two important factors influenced the procedure: the region of the inspection and the type of the inspection.

To clarify it a hypothetical example is given in order to be illustrated clearly. If a ship X is inspected in a port in the area covered by the Paris MOU, then according to the risk profile[10] of the ship the inspector will follow the relevant inspection. This means that a high risk profile ship will be subject to a more detailed inspection. At the same time in port A under Tokyo MOU a ship Z is inspected, where there is not for the moment[11] any risk profile provision, the inspection will be carried out according to the ordinary procedure starting from initial inspection. So, the region of the inspection determines the way in which a ship will be inspected.

Taking into account the new regime under the new Convention, the inspection is deemed to separate in two main types: the initial and the more detailed. It is argued that one of the most innovative changes in the current status of inspections will be the review of the certification and declaration. This limitation launches a new era in the inspection’s procedure, since the maritime labour certificate and declaration of maritime labour compliance will be regarded as prima facie[12] evidence. A second limitation[13] concerns “the conformity of the matter inspected with the relevant requirements set out in Articles and Regulations of this Convention and in Part A only of the Code. As it becomes clear, the new regime “desires” to limit the procedure of the inspection in case the ship is proved to be in compliance with the Convention. This motivates the shipowners to follow the requirements of the Convention, because their ships will not be delayed on detained unduly. Undoubtedly, the new regime will function in favour of the high quality shipowners and against those who will not meet the imposed requirements and their ships will be subject to a more detailed inspection.

So, to resume when an inspection is just initial and limited to a review of the certification and the declaration will benefit the shipowners. In contrast, when a detailed inspection takes place, probably delays or at the worst case detentions may be caused which equal to loss of time. Any prediction to support either of the two cases would be unsuccessful, but the only sure is that the new Convention motivates shipowners to comply with it taking severely into consideration the consequences of a detailed inspection.

The second variable of the equation of efficiency is money. It can be argued that money is one of most important factors when someone seeks to find out the efficiency of a new convention. Thus, the fundamental investors of the field- the shipowners- should continue being motivated to invest.

Undoubtedly, this is one of the most difficult issues to discuss, since the Convention has not been enforced yet and has not proved in practice how much money will be saved or spent concerning the Port State Control. In shipping industry everything moves under the basic function of time-money. There are several cases in everyday life where ships may be delayed or detained in ports due to Port State Control. This may cause loss of money for owners if the vessel is chartered and is off-hire or may raise claims by cargo owners for damages. The Maritime Labour Convention states explicitly that “each Member shall make all possible efforts to avoid a ship being unduly detained or delayed”[14] and that “compensation shall be paid for any loss or damage suffered”[15]. It can be argued that this is a provision in favour of the shipowners who have a remedy, taking into consideration that the burden of proof is on the complaint.

However, it is not so clear the regime under which an inspection may lead to a justifiable or no detention. The wording of the provision is quite vague by using the phrase “all possible efforts”[16], especially when it is not obligatory for every Member how to implement the guidance to its officers. At this point, the advantage of flexibility provided by the Maritime Labour Convention meets the uncertainty in the implementation and interpretation by each Member State. In the Guidelines of ILO for Port State Inspectors[17] there is a chapter which assists on how an officer should act in case of a possible detention and which are the factors should be taken into account in order to judge correctly. So, a certain degree of good faith will be necessary when an officer judges a situation. For example, due to the different social and economic background among each crew member, what is “adequate” or “suitable” for some may be unacceptable to others. As a result, it becomes evident that pragmatism and good sense is needed along with the judgment of the officer, who has to be comprehensively trained. A co-operation among the involved parties (port authorities, shipowners, seafarers, and their representative bodies) is a key element to ensure that inspections are carried out properly and fairly.

Consequently, the variable of money cannot be calculated easily. In practice, the Convention may help the high quality shipowners who will be privileged as their ships will not be delayed or detained in ports. In a free market of competition they will be in advantageous position, as they will be trustful and reliable. On the other hand shipowners who are average or sub-standard, if they do not comply with the Convention, they will be in margin of the market, because their ships will not be on demand anymore.

The final variable of analysis is the amount of people needed for carrying out a port inspection under the Convention. According to paragraph 3 of Regulation 5.2.1 Port State Control inspection is “to be carried out by authorized officers”[18]. A main observation on this statement is that the competent port authority authorizes its officers.

To find out whether the number of port State officers will increase or decrease it is appropriate to examine the current status. Both the Labour Inspection (Seafarers) Convention 1996[19] and the regional Memorandum of Understanding on Port State Control provide the requirements for inspectors. For example the Annex 6 of Paris Memorandum of Understanding on Port State Control[20] sets the minimum criteria for officers. After a brief comparison between these and the Guidelines of ILO for Port State Inspectors[21] no significant difference can be observed or any specific provision which requires the employment of more officers. The new Convention seems to bring only a slight increase to their existed number as the only extra requirement imposed is the specific training with respect to labour inspections under the Convention. This is a presumption based on their work load and their time availability to conduct such inspections. An inspection is not only a check of paperwork, but an active procedure involving interviews with crew members. A possible scenario is that a port authority with three inspectors may employee one more in order to cover the volume of duties under the new Convention.  So, it is properly to calculate the number of port State officers in relation to the time needed for inspection which is not stable (initial/detailed). Nevertheless, there are voices which support another view that the Maritime Labour Convention will create “a need for more skilled people in specific jobs”[22].

Effectiveness on Port State Control under the Maritime Labour Convention 2006

As aforesaid, effectiveness is the “capability of producing a desired result”[23]. And the desire result in our case is the decent work for seafarers and the protection of interests in fair competition for quality shipowners. In order to be effective a convention there is not a standard path to be followed. There is not a magic prescription which makes each convention effective, thus meaning successful. The effectiveness of a convention is hardly proved immediately. It will be tested in practice and the interests of all parties (shiponwers, seafarers and governments) should be taken into account. The effectiveness of inspections in the enforcement of seafarers’ rights is a matter open to question and has to be measured long-run, since the first months or years of the application are like a transition from an old regime to a new one. Looking at the new Convention there are some distinct points of effectiveness, but at the same time there are points less effective.

The first fundamental point of effectiveness is found in Article V under which shiponwers who fly the flag of ILO Member States who do not ratify the Convention will still have to comply with the Convention requirements under the ‘no more favourable treatment’[24] requirement of the Convention. All visiting ships must be treated equally, whatever the flag they fly. This guarantees “a level playing field”[25] for shipowners that comply with the Maritime Labour Convention 2006, since they are motivated to engage in a field with fair competition with the same criteria for each player. Thus, this provision can be regarded as one of the most supportive of the Convention’s effectiveness in the enforcement of seafarers’ rights creating an implied obligation for compliance with the imposed requirements and a uniform framework for all shipowners.

The second critical point is the innovation of the maritime labour certificate and the declaration of maritime labour of compliance[26]. It is the first time an ILO convention provides a certification of seafarers’ living and working conditions on board ships. These documents along with any declaration of any substantial equivalent granted by the issuing authority are essential for each ship as they constitute prima facie evidence[27] of compliance with the requirements of the Convention. Their issuance by the Flag State ensures that the ship complies with the requirements[28] of the Convention. In practice these documents assist the inspector to limit his inspection to a review of them and convince him for the existence of all imposed requirements.

The third important point of effectiveness is the reference to a monitoring system[29] which is subject to the obligation of annual report of Article 22 of the Constitution[30]. The Convention imposes an obligation on the port State authorities requiring them to report regularly. Due to this report system the possibilities of corrupt port State officers who seek to enrich themselves by conducting controls in order to fine a ship unreasonably are reduced. A certain degree of transparency is posed creating fair and secure inspections on board.

However, the Convention presents some points of uncertainty which causes a reduced level of effectiveness. Thus, the intention of the drafters was to provide a certain degree of flexibility in the implementation of the Convention by each Flag State in order to be uniformly enforced[31]. But in practice, this flexibility may be proved ineffective if each Member State does not implement it with goodwill, good faith and good sense.

A very logical presumption can be made is that Flag States will be mindful that shipowners may change the flag their ships fly if they are disappointed by the enactment of unreasonable strict regulations. So, the implementation will be to the minimum point of rigorousness. Indeed, for the major number of shipowners the aim will be to do as less as they can in order to gain their certificates. Also, it is worthy to be mentioned that the time of implementation depends on the volume of other laws in national legislatures waiting in queue to be implemented. Undoubtedly, this influences negatively the effectiveness of the Convention as there is not a uniform approach and application of it.

Moreover, a second point of lack of effectiveness can be found in the interpretation of the Convention. While implementing the Convention there are concerns at the way in which Member States around the world will interpret issues for which they are permitted. It is too early to determine how an officer will judge a certain fact where he has the opportunity to interpret it based on his personal judgment. The Member States are responsible for the guidance of their inspectors[32].

The above analysis is not exhaustive referring only to some key points for the proof of effectiveness. The main purpose of the new Convention is double: to attract young people to work as seafarers providing decent living and working conditions on board and to establish a global level playing field where the good shipowners will benefit against those of poor quality. The basic principles that should apply both in the implementation and the interpretation of the Convention are fairness and equity. The flexibility given to Members States should be “accepted” as a weapon to accomplish a globally applicable and enforced Convention. And regarding the pressure of the timetable someone may guess that there will be a grace period allowing derogations, but the official position is much more severe looking to what the UK Shipping Minister Paul Clarke stated in 2009[33].

Overall, the Maritime Labour Convention has been introduced with the best ever recommendations. The hopes for a change are relied upon its application and enforcement in August 2013. The truth is that it has all the potential to succeed and to confirm its reputation. But this will not be easy and sure. In order to be efficient and effective in practice all parties of the industry has to support it with trust and good will. As a legislative piece it will present disadvantages and deficiencies, but these can be overcome by the right and fair implementation and interpretation of the Convention by the Members States. Before the enforcement of the Convention and the passage of certain time period of its application nobody can predict accurately how it will function. And its strongest advantage is the universal desire of the involved parties to succeed.

*Andreas Giakoumelos has graduated from the Law School of Democritus University of Thrace , Greece in 2011. He is currently a postgraduate student of University of Southampton studying Maritime Law (LLM). He has worked in a law firm in Athens as trainee and as assistant of the legal manager in a shipping firm in Piraeus. He has published articles in the magazine of the Law Society of Southampton University and he is keen on hot issues of the maritime industry such as piracy, new Conventions (MLC 2006) and others.