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The concept of “shipowner” under new maritime labor law (MLC, 2006): does the shipowner own the ship? (comparative analysis of national law of Denmark, Finland, Germany, Norway, and the United Kingdom)

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Abstract

The identification of the responsible shipowner is essential for seafarers in order to claim payments and compensation in respect of their employment on board a ship. Often this may be difficult because of corporate arrangements and the many intermediaries traditionally involved in ship operation. The Maritime Labour Convention 2006 (MLC, 2006), adopted by the International Labour Conference (ILC) 94th (Maritime) Session in 2006, entered into force on August 2013; it significantly affects the shipowner’s responsibility in respect to seafarers’ employment. Taking into account the mentioned issue, the article examines the concept of “shipowner” under the MLC, 2006 and presents comparative analysis of the relevant national law implementing the MLC, 2006 in Denmark, Finland, Germany, Norway, and the United Kingdom.

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Notes

  1. Text of MLC, 2006 is available at: http://www.ilo.org/global/standards/maritime-labour-convention/text/lang--en/index.htm

  2. The MLC, 2006 consolidates and updates more than 60 international maritime labor instruments (Conventions and Recommendations) adopted by the ILC since 1920. The MLC, 2006 has been designed to become a global instrument known as the “forth pillar” of the international regulatory regime for quality shipping, complementing the key conventions of the International Maritime Organization (IMO): The International Convention for the Safety of Life at Sea (SOLAS) 1974, the International Convention on Standards of Training, Certification and Watchkeeping (STCW) 1978, and the International Convention for the Prevention of Pollution from Ships (MARPOL), 73/78. The MLC, 2006 is considered as a seafarers’ bill of rights. See: Report I (1A). Adoption of an instrument to consolidate maritime labor standards. Reports and documents submitted to the Conference (ILC, 94th (Maritime) Session, 2006). P. 4.-5. All MLC, 2006 preparatory reports and documents used in the Article are available at: http://www.ilo.org/global/standards/maritime-labour-convention/WCMS_153447/lang--en/index.htm

  3. The MLC, 2006 ratifications list is available at: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_INSTRUMENT_ID:312331 Last visited on 7 November 2017.

  4. Under Article II, paragraph 1 (g) of the MLC, 2006 seafarers’ employment agreement includes both a contract of employment and articles of agreement. See also Regulation 2.1 and the Standard A2.1 of the MLC, 2006 Code.

  5. Regulation 1.4., Standard A1.4. Paragraph 5 (c) (vi), MLC, 2006: 5. A Member adopting a system referred to in paragraph 2 of this Standard shall, in its laws and regulations or other measures, at a minimum: (…) (c) ensure that seafarer recruitment and placement services operating in its territory: (…) (vi) establish a system of protection, by way of insurance or an equivalent appropriate measure, to compensate seafarers for monetary loss that they may incur as a result of the failure of a recruitment and placement service or the relevant shipowner under the seafarers’ employment agreement to meet its obligations to them.

  6. Regulation 2.5., Paragraph 2, MLC, 2006.

  7. Regulation 4.2., Standard A4.2. Paragraph 1 (b), MLC, 2006.

  8. Amendments (2014) to the MLC 2006 came into force on January 2017. Available at: http://www.ilo.org/ilc/ILCSessions/103/reports/WCMS_248905/lang--en/index.htm

  9. Standard A2.1, paragraph 1 (a), MLC, 2006.

  10. See: Review of Maritime Transport 2016, UNCTAD/RMT/2016. P. 37. Available at: http://unctad.org/en/PublicationsLibrary/rmt2016_en.pdfLast visited on 6 August 2017.

  11. Vienna Convention on the Law of Treaties 1969. Available at: https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf Last visited on 6 August 2017.

  12. Article 31 and 32, Vienna Convention on the Law of Treaties 1969.

  13. Under the standard barebout charterer contract a barebout charterer is taking responsibility for operation of ship, including recruitment and placement of the crew. See: Explanatory note to the Clause 10 (Maintenance and Operation) of the BIMCO Standard Bareboat Charter, BARECON 2001. Available at: https://www.bimco.org/Chartering/Documents/Bareboat_Chartering/BARECON2001.aspx Last visited on 6 August 2017.

  14. ISM Company is a company stated by the ISM Certificate as responsible for operation of ship according to the International Safety Management (ISM) Code 2010. The shipowner or bareboat charterer on the basis of a management contract usually delegates the responsibility for operation of a ship to another company, i.e. the management company (ISM Company).

  15. BIMCO standard ship management agreement SHIPMAN 2009. Available at: https://www.bimco.org/Chartering/Clauses/MLC, 2006_2006_Clauses.aspx

  16. See, for example, IMO paper pointing out the strengths and weaknesses of the linkage between the new convention and the definition of “company” in ISM Code. High-Level Tripartite Working Group on Maritime Labour Standards (TWGMLS) (Second meeting), 14–18 October 2002. Two information papers prepared by the International Maritime Organization (IMO) for the meeting. Information paper I. P. 1–3.; Report I (1A). Adoption of an instrument to consolidate maritime labor standards. Documents and reports submitted to the ILC, 94th (Maritime) Session, 2006, p.16 (Note 3 (Article II), paragraph 6).

  17. Final report of Tripartite Subgroup of the High-Level Tripartite Working Group on Maritime Labour Standards (STWGMLS) (second meeting) 3–7 February, 2003, ILO Doc. No. STWGMLS/2003/8. P. 35.

  18. High-Level Tripartite Working Group on Maritime Labour Standards (TWGMLS) (Third meeting), 30 June – 4 July, 2003, ILO Doc. No. TWGMLS/2003/2: Consolidated maritime labour Convention (First draft), Articles and Regulations. P. 3.

  19. The 94th (Maritime) Session of the ILC, Geneva, 7–23 February, 2006, Reports and documents submitted to the conference: Report I(1B). Proposed consolidated maritime labour Convention, Article II (1) (j).

  20. The 94th (Maritime) Session of the ILC, Geneva, 7–23 February, 2006, Conference session documents: Report of the Committee of the Whole. P. 7/20 (Paragraph 125).

  21. Ibid, P. 7/20–7/24 (Paragraph 125–152).

  22. Standard A2.1., paragraph 1 (a) of the MLC, 2006: Each Member shall adopt laws or regulations requiring that ships that fly its flag comply with the following requirements: (a) seafarers working on ships that fly its flag shall have a seafarers’ employment agreement signed by both the seafarer and the shipowner or a representative of the shipowner (or, where they are not employees, evidence of contractual or similar arrangements) providing them with decent working and living conditions on board the ship as required by this Convention;

    and Standard A2.1., paragraph 4 (b) of the MLC, 2006: 4. (…) Seafarers’ employment agreements shall in all cases contain the following particulars (…) (b) the shipowner’s name and address;

  23. See General Observation (CEACR) - adopted 2014, published 104th ILC session (2015). CEACR comment to Regulation 2.1 and the Code. Seafarers’ employment agreements. Available at: http://www.ilo.org/dyn/normlex/en/f?p=1000:20010:::NO:::

  24. Consolidated act on seafarers’ conditions of employment, etc. (Consolidated act no. 73 of 17 January 2014 issued by the Danish Maritime Authority) and Order no. 238 of 7 March 2013 on the employer’s obligation to conclude a written contract with the seafarer on the conditions of employment. Available at: http://www.dma.dk/SoefarendeBemanding/AnsaettelsesforholdMLC/Ansaettelsesforhold/Sider/ReglerAnsaettelsesforhold.aspx

  25. The Seaman’s Rights and Duties, DMA, 2001, page 15. Available at http://www.dma.dk/SoefarendeBemanding/Documents/pligt_og_ret_pjece_sept09.pdf

  26. Section 2, Order no. 238 of 7 March 2013 on the employer’s obligation to conclude a written contract with the seafarer on the conditions of employment.

  27. See: Chapter 3 of the Act of 21 June 2013 No. 102 relating to employment protection etc. for employees on board ships (Ship Labour Act). Available at: http://www.sjofartsdir.no/en/legislation/#laws

  28. Section 2–3 (1) of The Ship Labour Act states that for the purposes of the Ship Labour Act, the company shall mean the entity regarded as company pursuant to section 4 of the Ship Safety and Security Act. Under Section 4 (1) of the Act of 16 February 2007 No. 9 relating to ship safety and security (Ship Safety and Security Act), the “company” means any company stated as the managing company in the Safety Management Certificate of the ship (i.e., ISM Company). Available at: http://www.sjofartsdir.no/en/legislation/#laws

  29. Section 4 (2), Ship Safety and Security Act.

  30. Section 2–1, Ship Labour Act.

  31. Section 2–1, Section 2–2, Ship Labour Act.

  32. See: Section 2 (1) of the S.I. 2013/1785 Merchant Shipping (Maritime Labour Convention) (Survey and Certification) Regulations 2013; Section 2 (1) S.I. 2014/1613 The Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.). Available at: http://www.legislation.gov.uk/

  33. Paragraph 4.5, Marine Guidance Note, MGN 471 (M). Available at: https://www.gov.uk/government/publications/mgn-471-maritime-labour-convention-2006-definitions

  34. Section 4 (1), Maritime Labour Act (Seearbeitsgesetz), Version 2014–12-10. Available at: http://www.deutsche-flagge.de/en/redaktion-englisch/documents/documents-other/seearbeitsgesetz-en.pdf/view

  35. See Section 4, Maritime Labour Act.

  36. Chapter 1 Section 1 (1), Seafarers’ Employment Contracts Act (756/ 2011) (as amended by several acts, including No. 921/2012). Available at: http://tem.fi/en/labour-legislation2

  37. Section 1a (2), Act on seafarers’ conditions of employment, etc.

  38. Section 1a (3), Act on seafarers’ conditions of employment, etc.

  39. Section 64, Act on seafarers’ conditions of employment, etc.

  40. See Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015). Maritime Labour Convention, 2006 (MLC, 2006) - Denmark (Ratification: 2011). CEACR comment on Regulation 2.1. and the Code. Seafarers’ employment agreements. Available at http://www.ilo.org/dyn/normlex/en/f?p=1000:20010:::NO:::

  41. Chapter 1 Section 9, Seafarers’ Employment Contracts Act (756/ 2011).

  42. Chapter 13 Section 17, Seafarers’ Employment Contracts Act (756/ 2011).

  43. Section 4 (2), Maritime Labour Act.

  44. Section 4 (3), Maritime Labour Act.

  45. Section 2–2, Ship Labour Act.

  46. Section 2–4 (1), Ship Labour Act.

  47. Section 2–2 (3), Ship Labour Act.

  48. Section 2–4 (3), Ship Labour Act.

  49. Section 2–5 (1), Ship Labour Act.

  50. Denmark: Order no. 238 of 7 March 2013 on the employer’s obligation to conclude a written contract with the seafarer on the conditions of employment; Finland: Section 3 of the Seafarers’ Employment Contracts Act (756/ 2011); Germany: Section 28 (1), Maritime Labour Act; Norway: Section 3–1 (1), Ship Labour Act; UK: Section 25 (1) of the Merchant Shipping Act 1995. Available at: http://www.legislation.gov.uk

  51. Section 3 (1), Act on seafarers’ conditions of employment, etc; Section 2 (1), Order no. 238.

  52. Section 2 (2), Order No. 238.

  53. The Seaman’s Rights and Duties, DMA, 2001, page 3.

  54. Standard form of the Employment agreement between seafarer and Owner/Master. Available at: http://www.soefartsstyrelsen.dk/Documents/Blanketter/hyrekontrakt.pdf

  55. See Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015). Maritime Labour Convention, 2006 (MLC, 2006) - Denmark (Ratification: 2011). CEACR comment on Regulation 2.1. and the Code. Seafarers’ employment agreements. Available at http://www.ilo.org/dyn/normlex/en/f?p=1000:20010:::NO:::

  56. Chapter 1, Section 3, the Seafarers’ Employment Contracts Act (756/ 2011).

  57. Chapter 13, Section 17, the Seafarers’ Employment Contracts Act (756/ 2011).

  58. Guidelines on the implementation of the Maritime Labour Convention on board of German flagged ships (MLC, 2006 – Guideline) published by Ship Safety Division of BG for transport and traffic (Dienststelle Schiffssicherheit of the BG Verkehr). Revision 3/2013. P. 9 and Annex 1 A model of the Declaration of shipowner’s responsibility. Available at: http://www.deutsche-flagge.de/en/applications-and-documents/documents

  59. Section 28 (1), Maritime Labour Act.

  60. Section 28 (2) (1), Maritime Labour Act.

  61. Supra 58, p. 29; Section 29 (1), Maritime Labour Act. See also Model for a crew member’s employment agreement for ships flying the German flag. Available at: http://www.deutsche-flagge.de/en/crew/employment-agreements

  62. Supra 58, p. 29.

  63. Section 2, Regulations of 19 August 2013 No. 1000 on employment agreement and pay statement, etc. Available at: http://www.sjofartsdir.no/en/legislation/#laws

  64. See Form of SEA presented by the Norwegian Maritime Authority. Available at: https://portal.sjofartsdir.no/pdf/KS-0401%20Ny%20arbeidsavtale%20-%20New%20Employment%20agreement%20ENG.pdf

  65. Circular No RSR 6–2013 New regulations and amended regulations for the implementation of the MCL, 2006, adopted by the Norwegian Maritime Authority on 19 August 2013. Available at: https://www.sjofartsdir.no/en/shipping/legislation/#circulars, p. 4.

  66. Regulations of 19 August 2013 No. 1000 on employment agreement and pay statement, etc. Available at: http://www.sjofartsdir.no/en/legislation/#laws

  67. See commentary in respect of box 11, Form of SEA prescribed by the NMA. Available at: http://portal.sjofartsdir.no/pdf/KS-0401%20Ny%20arbeidsavtale%20-%20New%20Employment%20agreement%20NOB.pdf Last visited on 6 August 2017.

  68. Section 25 (1), Merchant Shipping Act 1995.

  69. Section 9 (2), S.I. 2014/1613 The Merchant Shipping (Maritime Labour Convention) (Minimum Requirements for Seafarers etc.). Available at: http://www.legislation.gov.uk/; Point (2) and Note 2 of a recommended model format for an SEA, provided in Annex 2 of Marine Guidance Note, MGN 477 (M) Maritime Labour Convention, 2006: Seafarers’ Employment Agreements. Available at: https://www.gov.uk/government/publications/mgn-477m-maritime-labour-convention-2006-seafarers-employment-agreements

  70. Point (3), of a recommended model format for an SEA, provided in Annex 2 of Marine Guidance Note, MGN 477 (M) Maritime Labour Convention, 2006: Seafarers’ Employment Agreements.

  71. Supra, 39.

  72. The term “shipowner” is defined in many international labor conventions which were reconsidered during the MLC, 2006 drafting process and many of them were revised by the MLC, 2006 (Article X of the MLC, 2006). Article 1.1 (c) of the Recruitment and Placement of Seafarers Convention, 1996 (No. 179) defines the shipowner as the following:

    the term shipowner means the owner of the ship or any other organization or person, such as the manager, agent or bareboat charterer, who has assumed the responsibility for operation of the ship from the shipowner and who on assuming such responsibilities has agreed to take over all the attendant duties and responsibilities;

    Article 2 (e) of the Seafarers’ Hours of Work and the Manning of Ships Convention, 1996 (No. 180), Article 1 (2) (g) of Seafarers’ Wages, Hours of Work and the Manning of Ships Recommendation, 1996 (No. 187) and Article 2 (e) of the Manning of Ships Convention, 1996 (No. 180) contains identical definition. The text of mentioned conventions is available at: http://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/seafarers/lang--en/index.htm

  73. The 94th (Maritime) Session of the ILC, Geneva, 7–23 February, 2006, Reports and documents submitted to the conference: Report I (1A). Adoption of an instrument to consolidate maritime labor standards. P. 16 (Paragraph 6 of Note 3 (Article II)).

  74. Dictionary of shipping. International business trade terms and abbreviations, A.E. Branch, D. Branch (eds), (2005), London, Witherby Falkanger, p.307; Th. Falkanger, L. Brautaset, H.J. Bull. (2011) Scandinavian maritime law - The Norwegian perspective, Oslo, Universitetsforlaget, p. 146.

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International regulation

National regulation

    Denmark

    Finland

    • Seafarers’ Employment Contracts Act (756/2011) (as amended by several acts, including No. 921/2012). Available at: http://tem.fi/en/labour-legislation2. Last visited on 6 August 2017

    Germany

    Norway

    UK

    Other

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    Acknowledgments

    The author is grateful to Alla Pozdnakova and Hans Jacob Bull, Professors at Scandinavian Institute of Maritime Law of Oslo University, Terje Hernes Pettersen from the Norwegian Seafarers’ Union, Angelica Gjestrum, ITF Coordinator in Oslo, and Hege Ajer Petterson from the Norwegian Shipowners’ Association. The views expressed in this Article are solely the author’s and mistakes, if any, are responsibility of the author.

    This article is based on author’s Master’s thesis “Concept of seafarer and shipowner: before and after the Maritime Labour Convention 2006” defended at the Riga Graduate School of Law in June, 2015. It reflects the state of affairs as at 6 August 2017.

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    1. Maritime administration of Latvia, Trijadibas iela 5, Riga, Latvia

      Sandra Lielbarde

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    1. Sandra Lielbarde
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    Correspondence to Sandra Lielbarde.

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    Author holds a LLM in Maritime Law from the World Maritime University & Lund University (2010). Since October 2016 she has been a PhD candidate at the Politechnical University of Catalonia.

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    Lielbarde, S. The concept of “shipowner” under new maritime labor law (MLC, 2006): does the shipowner own the ship? (comparative analysis of national law of Denmark, Finland, Germany, Norway, and the United Kingdom). WMU J Marit Affairs 17, 229–247 (2018). https://doi.org/10.1007/s13437-018-0141-8

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