Maritime Labour Convention 2006: First look

21 January 2015• Written by Benjamin Maltby
The MLC 2006 secures employment rights for commercial crew, but has unintended consequences for yacht crew.

Given its impact and the time taken to design and build new yachts, owners and designers need to start understanding the Maritime Labour Convention 2006 (MLC), despite uncertainty as to its implementation. What’s certain is that designers’ freedom is about to be curtailed.

What is the Maritime Labour Convention?

The MLC 2006 is a detailed document which, after some years of diplomatic discussion, has been placed on the table for countries to sign up. It’s aimed at traditional registration countries (flag states) and port states, as well as nations without a coastline, from which seafarers may nevertheless hail.

It covers the rights and obligations associated with crew welfare – a sort of seafarers’ Bill of Rights. It is the fourth in a series of conventions covering those areas of shipping which, in fairness, needed regulation – the others being SOLAS (safety), STCW (crew training) and MARPOL (pollution).

It has been developed by the International Labour Organisation, who, while speaking to the owners of trading ships, seemingly hadn’t even thought to consider yacht owners. They spoke to seafarers, but only through the International Transport Workers Federation, which has a tenuous link with active yacht crewmembers.

Discussions were initiated back in 2001, but with its regulatory radar sometimes on the blink, the superyacht industry must now live with the consequences until changes to the MLC can be negotiated.

The MLC consists of Articles, Regulations, the Code and Appendices. The Articles and Regulations form the meat of the convention, with the Code providing technical details and standards, both mandatory and suggested. Resolutions give guidance on interpretation. Convention states must co-operate in order to facilitate effective implementation and enforcement, but governments do have a degree of discretion in how to do this.

The MLC is not a statement of law, but a set of rules that ratifying countries agree to incorporate into their own laws. It contains suggestions on detailed implementation, but nations will have limited and defined wriggle room.

We don’t yet know how those details will affect yachts, but given the potentially dramatic effect on yacht design, the time to be aware of the MLC is now.

When does it come into force?

The MLC will come into force one year after 30 countries, with a minimum of 33 per cent of the world’s shipping tonnage registered, have ratified it. The European Union (EU) plans to ratify on behalf of EU member states on or before 31 December 2010, so it will become law in all signatory countries on or before December 2011. Some states may implement parts of the MLC earlier.

What is the purpose of the MLC?

The MLC sets out minimum requirements for accommodation, recreational facilities, catering, working hours, repatriation and healthcare, welfare and social security provisions for ships’ crew.

The aim is to provide crewmembers with the same rights as those employed ashore. It won’t be enough simply to pay crewmembers more in lieu of any shortcomings. Some of these areas are already covered by national laws, but not on a uniform basis.

Given that such matters can be governed by the laws of the flag state, port state and those of the crewmember’s home state, this has created confusion that a few unscrupulous owners and managers have exploited.

Yacht crew – such as Metsuyan IV‘s – have luxurious working conditions compared to most commercial crew.

Which yachts will be affected?

The MLC will affect all chartered yachts, although there will be exemptions for yachts already built in the case of design, construction and use-of-space requirements, and limited exemptions for yachts of less than 200GT.

Some states may broaden the MLC to cover private yachts, either for concern for crewmembers’ welfare or conceivably out of ignorance of the sheer number of private yachts currently in use.

Notably, the MLC will cover the numerous royal and state yachts, but not those of a traditional build: the MLC gives dhows and junks exemptions, as an example, but what of new ‘spirit of tradition’ wooden yachts made using old techniques, or the many Turkish gullets still being built and in widespread commercial use?

What will be the effects?

Perhaps the regulations that will have the biggest impact for owners will be those regarding crew accommodation. Some of the future requirements for crewmembers would be extravagant at present, even for some guests in smaller sailing superyachts. Here is a taste of the comprehensive new rules.

Crew accommodation will have to feature headroom of at least 2.03m, although this precise limit can be reduced by flag states where such reduction would be ‘reasonable’ and ‘will not result in discomfort’.

Crew cabins must be situated above the load line, and amidships or aft unless impracticable (in exceptional cases and bearing in mind the yacht’s size). Under no circumstances can the cabins be located forward of the collision bulkhead.

For yachts over 3,000GT, unless the yacht qualifies as a passenger ship (some do, but it’s rare given the overall additional safety and regulatory requirements), individual cabins will have to be provided for each crewmember. In all other yachts, unless the flag state otherwise allows for yachts under 200GT, crew cabins will be limited to two crewmembers.

In any event, separate cabins will have to be provided for men and women, and each crewmember must have their own berth. Given this, flag states will have to be imaginative to accommodate those owners who prefer crewmember couples to singletons, given that they often stay with the boat longer. Crew berths must be at least 198x80cm.

Flag states will have to be imaginative to accommodate those owners who prefer crewmember couples to singletons

While yachts under 200GT may be allowed an exemption, single crew cabins in all other yachts will have to have a floor area of at least 4.5 square metres where the yacht is less than 3,000GT; at least 5.5 square metres where the yacht is less than 10,000GT; and at least 7 square metres in the unlikely event that the yacht is larger even than that.

Thankfully, flag states will be allowed to reduce the figure of 4.5 square metres for yachts of less than 3,000GT. Again, while yachts under 200GT may be allowed an exemption, twin crew cabins in all other yachts under 3,000GT must have a floor area of at least 7 square metres.

Captains, chief engineers and first officers of yachts over 3,000GT will also get their own sitting room adjoining their cabin.

All crewmembers will get a clothes locker and drawer totalling at least 500 litres and all cabins must feature a fixed or foldaway table or desk, with comfortable seating.

Yachts under 200GT may be exempted, but in all others, each cabin must have a washbasin, if not a bathroom.

Separate sanitary facilities must be provided for men and for women on all yachts.

Those carrying more than 15 crewmembers must also have separate accommodation for medical purposes.

MLC 2006 isn’t just about accommodation: it also provides employment rights, such as compulsory employment contracts.

Employment benefits

Beyond the physical aspects, there are measures to protect crewmembers by obliging owners to provide material assistance and support from the financial consequences of sickness, injury or death occurring in connection with their employment. These requirements expressly do not affect any other legal remedies available to crewmembers.

As a minimum, owners will be liable to bear the costs of sickness and injury, and to compensate in the event of the death or long-term disability of crewmembers due to an occupational injury, illness or hazard.

Owners will also have to pay for medical care, including treatments, medicines and equipment, and board and lodging away from home until the crewmember has recovered, or until any incapacity is declared permanent.

Doubtless the marine insurance sector will provide a specific MLC-compliant product to cover these risks, but most will be covered already by standard protection & indemnity insurance.

Another duty against which insurance may have to be taken is the owner’s duty to compensate crewmembers for unemployment if the yacht is lost. Flag states may limit this to two months’ worth. It remains to be seen how this will be introduced in the context of companies owning no other assets.

One area that will prevent timewasting and aggravation for owners is the requirement for all crewmembers to have a written employment agreement, setting out the terms of their engagement. All too often, owners and managers presently dispense with the need for employment contracts (in an atmosphere of goodwill) only for misunderstandings and disputes to develop later.

While there is a need for state-approved crew agreements for most Red Ensign yachts, this requirement is rarely enforced on yachts. Flag and port states may pay closer attention once it becomes a ubiquitous requirement.

Which seafarers will be affected?

The MLC will affect all crewmembers, employed or engaged in any capacity on-board.

While common sense suggests this should not extend to navigational pilots, surveyors, yard employees and the like, this remains to be seen.

What needs to be done to comply?

As complying with the rules, yachts over 500GT engaged in international voyages or operating in ports outside the yacht’s flag state will have to carry a Maritime Labour Certificate and Declaration of Maritime Labour Compliance, setting out the owner’s plans for ensuring compliance with the applicable national laws and regulations.

Flag states will have to review these plans and certify that they are being implemented. Captains will be responsible for carrying out the plans and keeping records of compliance.

The ‘owner’ for the purposes of the MLC may be the actual owner, the manager, bareboat charterer, or whichever party has assumed responsibility for the operation of the yacht from the owner or otherwise agreed to take over the duties and responsibilities imposed by the MLC.

Port and flag states will be responsible for enforcing the MLC 2006, when it becomes ratified into their laws.

How will it be enforced?

All ships (including yachts) flagged anywhere will be subject to the MLC, and may be inspected in any country that has ratified the convention, through the established port state control system. Ships that do not meet the minimum standards may be detained by the port authorities.

Certification will add to the paperwork, but presenting it should help avoid official port inspections and corresponding delays.

There will also be on-board and shore-based complaint procedures for crew, which may serve to encourage whistle-blowing.

What can be done about it?

As port authorities cannot treat yachts flagged in non-MLC countries any less favourably, it is hard to see how flagging in a non-MLC country will assist, given that the convention is enjoying widespread support.

Crewmembers will also get used to working on compliant yachts, so non-compliance may only make it harder to find and keep a good crew, which may affect resale value.

There is flexibly built into the MLC, and owners should ensure flag states understand their point of view. It is acceptable, under the MLC, for provisions to be brought in using ‘substantially equivalent’ regulations to the convention’s – as the UK’s Maritime & Coastguard Agency did when writing the Large Yacht Code to make SOLAS safety provisions more palatable to yacht owners.

There are mechanisms to build change into the MLC, but the process is protracted.

Conclusion

The MLC was overdue as a result of the horrendous conditions some seafarers have had to put up with on rusty trading ships. It will eliminate the range of differing and confusing national laws, but that will be little consolation

Benjamin Maltby is an English barrister with Palma-based consultant MatrixLloyd, providing impartial guidance on all aspects of large yacht ownership and operation. He began his career as a lawyer with an International Group P&I Club, before practising with the leading Mediterranean marine and offshore law firm.

Originally published: December 2008.

MatrixLloyd, Bugsy Gedlek and Dreamstime

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