Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

United States of America

Minimum Age (Sea) Convention (Revised), 1936 (No. 58) (Ratification: 1938)
Certification of Able Seamen Convention, 1946 (No. 74) (Ratification: 1953)
Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147) (Ratification: 1988)

The Committee notes that in its reports sent on the application of the abovementioned maritime Conventions, the Government indicates that: (i) the President’s Committee meeting on the ILO (PC/ILO) called on the PC/ILO’s Tripartite Advisory Panel on International Labor Standards (TAPILS), in conjunction with the US Coast Guard, to expedite and complete its review of the Maritime Labour Convention, 2006 (MLC, 2006) and to report to the PC/ILO on the feasibility of ratification; (ii) the US regulations were amended to create a new Standards of Training, Certification and Watchkeeping for Seafarers (STCW) endorsement for able seafarer deck; and (iii) the US Coast Guard adopted the Navigation and Vessel Inspection Circular (NVIC) No. 02-13 on Guidance Implementing the MLC, 2006. While noting these efforts to bring the national legislation into conformity with the MLC, 2006 and assess the feasibility of its ratification, the Committee will continue to examine the conformity of national legislation with the requirements of ratified maritime Conventions. In order to provide a comprehensive view of the issues to be addressed in relation to the application of these Conventions, the Committee considers it appropriate to examine these issues in a consolidated comment, as follows.

Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147)

Article 2(a)(iii) of the Convention. Shipboard conditions of employment. Articles of agreement. The Committee requested the Government to take the necessary measures to ensure that national laws and regulations prescribe conditions that are substantially equivalent to the requirements of the Seamen’s Articles of Agreement Convention, 1926 (No. 22) concerning the assurance that the seafarer has understood the agreement as required by Article 3(4) of Convention No. 22, the mandatory inclusion of particulars in the articles of agreements, including conditions for termination and the seafarer’s entitlement to annual leave with pay as required by Article 6(3)(10) and (11) of Convention No. 22, the articulation in the national legislation of the conditions for termination or immediate discharge (Articles 10–14 of Convention No. 22), and the seafarer’s right to request and receive a separate certificate as to the quality of the seafarer’s work as required by Article 14(2) of Convention No. 22. The Committee notes that the Government reiterates in its report that it is of the opinion, through tripartite consultations, that its laws and practice are substantially equivalent to the relevant Articles of Convention No. 22.

Substantial equivalence to the requirements of Article 6(3)(10) and (11) of Convention No. 22. Mandatory inclusions. The Committee previously noted that the shipping articles of agreement prescribed by the national legislation do not include grounds for rescission or specific provisions for annual leave. The Government indicated that mariners were nonetheless granted substantially equivalent protection, through the following safeguards: the mandatory inclusion in the articles of agreement of a clause providing that mariners may present complaints on the breach of the agreement to the master, and the mariners’ meaningful access to courts to enforce their rights regarding termination and annual leave as afforded by statute, general maritime law and collective agreements. The Committee reiterates that the essential features of Convention No. 22 on which substantial equivalence would have to be established must include the provision of a document containing all the main particulars listed in Article 6(3) (paragraph 186 of the 1990 General Survey on Convention No. 147). The Committee therefore requests the Government, once again, to take the necessary measures to ensure that national laws and regulations prescribe conditions that are substantially equivalent to Article 6(3)(10) and (11) of Convention No. 22.

Substantial equivalence to the requirements of Articles 10–14 of Convention No. 22. Conditions for termination. The Committee previously noted that the national legislation (Title 46 of the United States Code (USC) §§ 10310 to 10312; and Title 46 of the Code of Federal Regulations (CFR) §§14.303, 14.307 and 14.311) did not ensure substantial equivalence with Articles 10–14 of Convention No. 22, which require the national legislation to articulate in advance and in an abstract manner the conditions for termination or immediate discharge. The Committee recalls that adequate protection of the seafarer on termination is essential to establish substantial equivalence to Convention No. 22 (paragraph 186 of the 1990 General Survey on Convention No. 147). The Committee therefore requests the Government to take the necessary measures to ensure that national laws or regulations prescribe conditions that are substantially equivalent to Articles 10–14 of Convention No. 22.

Substantial equivalence to the requirements of Article 14(2) of Convention No. 22. Certificate on quality of the work. The Committee previously noted that the national legislation did not ensure the seafarer’s right to request and receive a certificate attesting to the quality of the seafarer’s work. The Government indicated in its 2010 report that there is no disposition in the national legislation providing for a mariner to receive a certificate attesting to the quality of his work or to his having fully discharged his obligations. The Committee reiterates that, pursuant to Article 14(2) of Convention No. 22, the seafarer at all times has the right to obtain from the master a separate certificate as to the quality of his work or, failing that, a certificate indicating whether he has fully discharged his obligations under the agreement. The Committee therefore requests the Government, once again, to take the necessary measures to ensure that national laws and regulations prescribe conditions that are substantially equivalent to Article 14(2) of Convention No. 22.

Article 2(d)(i) and (ii). Adequate engagement procedures and procedures for the investigation of complaints in connection with the engagement of seafarers. The Committee notes the information provided by the Government in response to its request concerning the engagement procedures on ships registered in its territory as well as the procedures for investigating complaints arising from the engagement of seafarers on ships registered in its territory and from the engagement in its territory of national seafarers on ships registered in a foreign country.

Article 2(d)(ii). Reporting of complaints in connection with the engagement of seafarers on vessels registered in a foreign country. The Committee requested the Government to provide detailed information on the reporting of complaints in connection with the engagement in its territory of seafarers on ships registered in a foreign country to the competent authority of the country in which the ship is registered. The Committee notes the possibility for the Port State Control Officer (PSCO) to relay labour complaints to the attention of the vessel’s flag State provided for in the Coast Guard Marine Safety Manual Volume 2, section D (page D-21). In this respect, noting that the Coast Guard Marine Safety Manual does not require the PSCO to systematically relay the complaints, the Committee requests the Government to clarify how it ensures the prompt transmission of all complaints arising in connection with the engagement of seafarers on vessels registered in a foreign country to the competent authority of such country with a copy to the Director-General of the ILO, as required by Article 2(d)(ii) of the Convention.