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

United States of America

Shipowners' Liability (Sick and Injured Seamen) Convention, 1936 (No. 55) (Ratification: 1938)
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.

Shipowners’ Liability (Sick and Injured Seamen) Convention, 1936 (No. 55)

Article 1(1) of the Convention, read in conjunction with Articles 2, 9 and 11. Scope of application and equality of treatment for all seafarers. For many years, the Committee has been referring to the need to amend Title 46 of the United States Code (USC) §30105 which prohibits non-resident foreign seafarers working on vessels registered in the United States from claiming injury or death benefits if they are employed by a person engaged in the exploration, development or production of offshore mineral or energy resources, and the incident occurred in the territorial waters or waters overlaying the continental shelf of a foreign nation. The Committee notes that the Government indicates in its report that in this circumstance, an injured non-resident foreign seafarer must first pursue legal remedies in a court of the foreign country that asserts jurisdiction over where the incident occurred or in the country in which the seafarer is a citizen. The Government further indicates that: (i) should there be no legal remedy available in the foreign countries, the seafarer may pursue legal remedies in the United States; (ii) prior to the enactment of 46 USC §30105, United States courts would have been forced to subject the parties to the time and cost of making a forum non convenience determination; and (iii) 46 USC §30105 does not negate any responsibilities of the shipowner, it simply assists the seafarer in applying the most appropriate forum. While taking due note of this information, the Committee reiterates that, in accordance with Article 11 of the Convention, all seafarers, irrespective of nationality, domicile or race, must enjoy equality of treatment. The Committee also recalls that it is clear from Article 9 of the Convention that the member State concerned has to secure rapid and inexpensive settlement of disputes concerning the shipowner’s liability. The Committee therefore requests the Government, once again, to take the necessary measures to fully implement the Convention ensuring equality of treatment to all seafarers irrespective of their nationality and domicile and to secure rapid and inexpensive settlement of disputes concerning the shipowner’s liability.

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

Article 2(a)(i) of the Convention. Safety standards. Substantial equivalence to the requirements of Article 5(1) of Medical Examination (Seafarers) Convention, 1946 (No. 73). Medical examination. The Committee recalls its previous comments on the need to amend former legislation which compelled medical examinations of seafarers only every five years and failed to ensure substantial equivalence to the compulsory medical examination for seafarers once every two years as required by Article 5(1) of Convention No. 73. The Committee notes that the Government indicates in its report that, in 2013, the Coast Guard adopted new rule (Title 46 of the Code of Federal Regulations (CFR)) §10.301(b)(1) in the context of the implementation of the STCW, providing that medical certificates of mariners serving under the authority of an STCW endorsement are issued for a maximum period of two years unless the mariner is under the age of 18, in which case the maximum period of validity is one year. The Committee takes note with satisfaction of the adoption of this regulation.

The Committee is raising other matters in a request addressed directly to the Government.